UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: September 24, 2015
(Date of earliest event reported)
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
(Exact name of issuing entity) |
Bank of America, National Association |
UBS Real Estate Securities Inc. (Exact name of sponsor as specified in its charter) |
Banc of America Merrill Lynch Commercial Mortgage Inc. |
(Exact name of registrant as specified in its charter) |
Delaware | 333-201743-01 | 56-1950039 |
(State or other jurisdiction of incorporation) | (Commission File No.) |
(IRS Employer Identification No.)
|
One Bryant Park | |
New York, New York | 10036 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code | 646-855-3953 |
Not Applicable |
(Former name or former address, if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01. Other Events.
On or about September 24, 2015, a series of mortgage pass-through certificates, entitled Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”), is expected to be issued by Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, a New York common law trust (the “Issuing Entity”), pursuant to a Pooling and Servicing Agreement, attached hereto as Exhibit 4.1 and dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, LNR Partners, LLC, as special servicer, Pentalpha Surveillance LLC, as trust advisor, and U.S. Bank National Association, as trustee, certificate administrator, certificate registrar, authenticating agent and custodian.
The mortgage loan secured by the mortgaged property identified as “Charles River Plaza North” on Schedule II to the Pooling and Servicing Agreement (the “Charles River Plaza North Mortgage Loan”), which is an asset of the Issuing Entity, is part of a non-serviced loan combination (the “Charles River Plaza North Non-Serviced Loan Combination”) that also includes three (3) other pari passu promissory notes and a subordinate B note, which are not assets of the Issuing Entity. The Charles River Plaza North Non-Serviced Loan Combination will be serviced and administered in accordance with the pooling and servicing agreement for the CSAIL 2015-C3 securitization transaction (the “CSAIL 2015-C3 Pooling and Servicing Agreement”), an executed version of which is attached hereto as Exhibit 4.2, and the Charles River Plaza North Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.4.
The mortgage loan secured by the mortgaged property identified as “261 Fifth Avenue” on Schedule I to the Pooling and Servicing Agreement (the “261 Fifth Avenue Mortgage Loan”), which is an asset of the Issuing Entity, is part of a loan pair (the “261 Fifth Avenue Loan Pair”) that also includes one (1) other pari passu promissory note, which is not an asset of the Issuing Entity. The 261 Fifth Avenue Loan Pair will be serviced and administered in accordance with the Pooling and Servicing Agreement, until the securitization of the related pari passu promissory note, and the 261 Fifth Avenue Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.5.
The mortgage loan secured by the mortgaged property identified as “The Mall of New Hampshire” on Schedule II to the Pooling and Servicing Agreement (“The Mall of New Hampshire Mortgage Loan”), which is an asset of the Issuing Entity, is part of a non-serviced loan combination (“The Mall of New Hampshire Non-Serviced Loan Combination”) that also includes one (1) other pari passu promissory note, which is not an asset of the Issuing Entity. The Mall of New Hampshire Non-Serviced Loan Combination will be serviced and administered in accordance with the CSAIL 2015-C3 Pooling and Servicing Agreement and The Mall of New Hampshire Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.6.
The mortgage loan secured by the mortgaged property identified as “200 Helen Street” on Schedule II to the Pooling and Servicing Agreement (the “200 Helen Street Mortgage Loan”), which is an asset of the Issuing Entity, is part of an A/B whole loan (the “200 Helen Street A/B Whole Loan”) that also includes a subordinate B note, which is not an asset of the Issuing Entity. The 200 Helen Street A/B Whole Loan will be serviced and administered in accordance with the Pooling and Servicing Agreement and the 200 Helen Street Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.7.
The mortgage loan secured by the mortgaged property identified as “WPC Department Store Portfolio” on Schedule II to the Pooling and Servicing Agreement (the “WPC Department Store Portfolio Mortgage Loan”), which is an asset of the Issuing Entity, is part of a loan pair (the “WPC Department Store Portfolio Loan Pair”) that also includes two (2) other pari passu promissory notes, which are not assets of the Issuing Entity. The WPC Department Store Portfolio Loan Pair will be serviced and administered in accordance with the Pooling and Servicing Agreement and the WPC Department Store Portfolio Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.8.
The mortgage loan secured by the mortgaged property identified as “Aviare Place Apartments” on Schedule I to the Pooling and Servicing Agreement (the “Aviare Place Apartments Mortgage Loan”), which is an asset of the Issuing Entity, is part of a non-serviced loan combination (the “Aviare Place Apartments Non-Serviced Loan Combination”) that also includes one (1) other pari passu promissory note, which is not an asset of the Issuing Entity. The Aviare Place Apartments Non-Serviced Loan Combination will be serviced and administered in accordance with the pooling and servicing agreement for the MSBAM 2015-C23 securitization transaction (the “MSBAM 2015-C23 Pooling and Servicing Agreement”), an executed version of which is attached hereto as Exhibit 4.3, and the Aviare Place Apartments Intercreditor Agreement (as defined in the Pooling and Servicing Agreement), an executed version of which is attached hereto as Exhibit 4.9.
The Certificates will consist of the following classes (each, a “Class”), designated as (i) the Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D Certificates (collectively, the “Publicly Offered Certificates”) and (ii) the Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G, Class H, Class V and Class R Certificates (collectively, the “Privately Offered Certificates”). Only the Publicly Offered Certificates have been offered to the public.
The Certificates represent, in the aggregate, the entire beneficial ownership in the Issuing Entity, a common law trust fund to be formed on or about September 24, 2015 under the laws of the State of New York pursuant to the Pooling and Servicing Agreement. The Issuing Entity’s primary assets will be forty-two (42) fixed rate mortgage loans (the “Mortgage Loans”) secured by first liens on fifty-seven (57) commercial, multifamily and manufactured housing community properties. Certain of the Mortgage Loans are expected to be acquired by the Registrant from Bank of America, National Association (“BANA”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.1 and dated September 14, 2015, between the Registrant and BANA; and certain of the Mortgage Loans are expected to be acquired by the Registrant from UBS Real Estate Securities Inc. (“UBSRES”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.2 and dated September 14, 2015, between the Registrant and UBSRES.
The funds to be used by the Registrant to pay the purchase price for the Mortgage Loans are expected to be derived from the proceeds of (i) the sale of the Publicly Offered Certificates by the Registrant to Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC pursuant to an Underwriting Agreement, attached hereto as Exhibit 1.1 and dated as of September 14, 2015, among the Registrant, as depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, as underwriters, and BANA, and (ii) the sale of the Privately Offered Certificates by the Registrant to Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC pursuant to a Certificate Purchase Agreement, dated as of September 14, 2015, between the Registrant, as depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC, as initial purchasers, and BANA, which Privately Offered Certificates will be sold in transactions exempt from registration under the Securities Act of 1933, as amended.
The Publicly Offered Certificates and the Mortgage Loans are more particularly described in the Prospectus Supplement, dated September 14, 2015, supplementing the Prospectus dated September 14, 2015, each as filed with the Securities and Exchange Commission.
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits | |
Exhibit No. | Description | |
Exhibit 1.1 | Underwriting Agreement, dated as of September 14, 2015, among Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, as underwriters, and Bank of America, National Association. | |
Exhibit 4.1 | Pooling and Servicing Agreement, dated as of September 1, 2015, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, LNR Partners, LLC, as special servicer, Pentalpha Surveillance LLC, as trust advisor, and U.S. Bank National Association, as trustee, certificate administrator, certificate registrar, authenticating agent and custodian. | |
Exhibit 4.2 | Pooling and Servicing Agreement, dated as of August 1, 2015, among Credit Suisse First Boston Mortgage Securities Corp., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, Rialto Capital Advisors, LLC, as special servicer, Pentalpha Surveillance LLC, as operating advisor, Wells Fargo Bank, National Association, as certificate administrator, and Wells Fargo Bank, National Association, as trustee. | |
Exhibit 4.3 | Pooling and Servicing Agreement, dated as of June 1, 2015, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, LNR Partners, LLC, as general special servicer, Wells Fargo Bank, National Association, as excluded mortgage loan special servicer, Pentalpha Surveillance LLC, as trust advisor, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian. | |
Exhibit 4.4 | Amended and Restated Agreement Between Noteholders, dated as of September 15, 2015, by and between Wells Fargo Bank, National Association, not in its individual capacity but solely as Trustee, for the benefit of the Holders of CSAIL 2015 C-3 Mortgage Trust Commercial Mortgage Pass-Through Certificates, as the Initial Note A-1 Holder and the Initial Note A-2 Holder; UBS Real Estate Securities Inc. as the Initial Note A-3-1 Holder and the Initial Note A-3-1 Holder; and Prima Mortgage Investment Trust, LLC as the Junior Noteholder. | |
Exhibit 4.5 | Agreement Between Note Holders, dated as of September 3, 2015, by and between Bank of America, N.A., as the Initial Note A-1 Holder, and Bank of America, N.A., as the Initial Note A-2 Holder. | |
Exhibit 4.6 | Co-Lender Agreement, dated as of August 18, 2015, by and between UBS Real Estate Securities Inc., as the Initial Note A-1 Holder, and UBS Real Estate Securities Inc., as the Initial Note A-2 Holder. | |
Exhibit 4.7 | Agreement Between Note Holders, dated as of September 24, 2015, by and between UBS Real Estate Securities Inc., as Senior Noteholder and as Junior Noteholder. |
Exhibit 4.8 | Co-Lender Agreement, dated as of August 18, 2015, by and between UBS Real Estate Securities Inc., as the Initial Note A-1 Holder, UBS Real Estate Securities Inc., as the Initial Note A-2 Holder, and UBS Real Estate Securities Inc., as the Initial Note A-3 Holder. | |
Exhibit 4.9 | Agreement Between Note Holders, dated as of June 4, 2015, by and between Bank of America, N.A., as the Initial Note A-1 Holder, and Bank of America, N.A., as the Initial Note A-2 Holder. | |
Exhibit 99.1 | Mortgage Loan Purchase Agreement, dated September 14, 2015, between Bank of America, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | |
Exhibit 99.2 | Mortgage Loan Purchase Agreement, dated September 14, 2015, between UBS Real Estate Securities Inc., as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: September 24, 2015 |
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. (Registrant) | |
By: | /s/ Leland F. Bunch, III | |
Name: Leland F. Bunch, III | ||
Title: Senior Vice President |
INDEX TO EXHIBITS
Item 601(a) of Regulation S-K Exhibit No. |
Description | Paper (P) or Electronic (E) | |
1.1 | Underwriting Agreement, dated as of September 14, 2015, among Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, as underwriters, and Bank of America, National Association. | (E) | |
4.1 | Pooling and Servicing Agreement, dated as of September 1, 2015, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, LNR Partners, LLC, as special servicer, Pentalpha Surveillance LLC, as trust advisor, and U.S. Bank National Association, as trustee, certificate administrator, certificate registrar, authenticating agent and custodian. | (E) | |
4.2 | Pooling and Servicing Agreement, dated as of August 1, 2015, among Credit Suisse First Boston Mortgage Securities Corp., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, Rialto Capital Advisors, LLC, as special servicer, Pentalpha Surveillance LLC, as operating advisor, Wells Fargo Bank, National Association, as certificate administrator, and Wells Fargo Bank, National Association, as trustee. | (E) | |
4.3 | Pooling and Servicing Agreement, dated as of June 1, 2015, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, LNR Partners, LLC, as general special servicer, Wells Fargo Bank, National Association, as excluded mortgage loan special servicer, Pentalpha Surveillance LLC, as trust advisor, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian. | (E) |
Item 601(a) of Regulation S-K Exhibit No. |
Description | Paper (P) or Electronic (E) | |
4.4 | Amended and Restated Agreement Between Noteholders, dated as of September 15, 2015, by and between Wells Fargo Bank, National Association, not in its individual capacity but solely as Trustee, for the benefit of the Holders of CSAIL 2015 C-3 Mortgage Trust Commercial Mortgage Pass-Through Certificates, as the Initial Note A-1 Holder and the Initial Note A-2 Holder; UBS Real Estate Securities Inc. as the Initial Note A-3-1 Holder and the Initial Note A-3-1 Holder; and Prima Mortgage Investment Trust, LLC as the Junior Noteholder. | (E) | |
4.5 | Agreement Between Note Holders, dated as of September 3, 2015, by and between Bank of America, N.A., as the Initial Note A-1 Holder, and Bank of America, N.A., as the Initial Note A-2 Holder. | (E) | |
4.6 | Co-Lender Agreement, dated as of August 18, 2015, by and between UBS Real Estate Securities Inc., as the Initial Note A-1 Holder, and UBS Real Estate Securities Inc., as the Initial Note A-2 Holder. | (E) | |
4.7 | Agreement Between Note Holders, dated as of September 24, 2015, by and between UBS Real Estate Securities Inc., as Senior Noteholder and as Junior Noteholder. | (E) | |
4.8 | Co-Lender Agreement, dated as of August 18, 2015, by and between UBS Real Estate Securities Inc., as the Initial Note A-1 Holder, UBS Real Estate Securities Inc., as the Initial Note A-2 Holder, and UBS Real Estate Securities Inc., as the Initial Note A-3 Holder. | (E) | |
4.9 | Agreement Between Note Holders, dated as of June 4, 2015, by and between Bank of America, N.A., as the Initial Note A-1 Holder, and Bank of America, N.A., as the Initial Note A-2 Holder. | (E) |
Item 601(a) of Regulation S-K Exhibit No. |
Description | Paper (P) or Electronic (E) | |
99.1 | Mortgage Loan Purchase Agreement, dated September 14, 2015, between Bank of America, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | (E) | |
99.2 | Mortgage Loan Purchase Agreement, dated September 14, 2015, between UBS Real Estate Securities Inc., as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | (E) |
Exhibit 1.1
EXECUTION VERSION
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
UNDERWRITING AGREEMENT
As of September 14, 2015
Merrill
Lynch, Pierce, Fenner & Smith Incorporated One Bryant Park New York, New York 10036 |
UBS
Securities LLC 1285 Avenue of the Americas New York, New York 10019 |
Drexel
Hamilton, LLC 77 Water Street New York, New York 10005 |
Ladies and Gentlemen:
Banc of America Merrill Lynch Commercial Mortgage Inc., a Delaware corporation (the “Depositor”), proposes to cause the issuance of, and to sell to Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC (each an “Underwriter” and, together, the “Underwriters”), the commercial mortgage pass-through certificates of the series and classes, and in the respective initial principal or notional amounts, set forth in Schedule I hereto (the “Offered Certificates”) pursuant to this Underwriting Agreement, dated as of the date first written above (this “Agreement”). The Offered Certificates, together with the Class X-E, Class X-FG Class X-NR, Class E, Class F, Class G, Class H, Class V and Class R Certificates (the “Private Certificates” and, collectively with the Offered Certificates, the “Certificates”), will represent the entire beneficial ownership interest in a trust designated as Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 (the “Trust”). The assets of the Trust (such assets, collectively, the “Trust Fund”) will primarily consist of mortgage loans secured by commercial, multifamily and manufactured housing community mortgaged properties (such mortgage loans, collectively, the “Mortgage Loans”, and such mortgaged properties, collectively, the “Mortgaged Properties”). The Mortgage Loans will have an aggregate unpaid principal balance of approximately $757,280,331 as of the close of business on the Cut-off Date (as defined in the PSA referred to below), after giving effect to payments of principal due on or before the Cut-off Date, whether or not received. The Mortgage Loans will be of the type and will have the characteristics described in the Prospectus Supplement (as defined below) prepared and delivered in connection with the offering of the Offered Certificates. Each class of the Offered Certificates will have the aggregate principal balance or notional amount set forth in the Prospectus Supplement, subject to an upward or downward variance in principal or notional amount, not to exceed the percentage set forth in the Prospectus Supplement.
The Certificates are to be issued under a pooling and servicing agreement (the “PSA”), dated as of September 1, 2015, between the Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the “Master Servicer”), LNR Partners, LLC, as special servicer (the “Special Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), certificate registrar, custodian (in such capacity, the “Custodian”) and authenticating agent (in such capacity, the “Authenticating Agent”), and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”; the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Authenticating Agent and the Trust Advisor, collectively, the “Transaction Parties,” and each, a “Transaction Party”). The Offered Certificates of each class will be issued in the minimum denominations and will have the terms set forth in the Prospectus Supplement. The Mortgage Loans will be sold to the Depositor pursuant to (i) a Mortgage Loan Purchase Agreement, dated the date hereof (the “UBS MLPA”), between UBS Real Estate Securities Inc. (“UBSRES”) and the Depositor and (ii) a Mortgage Loan Purchase Agreement, dated the date hereof (the “BofA MLPA” and, together with the UBS MLPA, the “MLPAs”), between Bank of America, National Association (“BofA” and, together with UBSRES, the “Mortgage Loan Sellers”) and the Depositor.
Capitalized terms used herein, but not otherwise defined herein shall have the meanings set forth in the MLPAs or, if not defined therein, in the PSA.
1. Representations, Warranties and Select Covenants.
(a) The Depositor represents and warrants to, and covenants with, the Underwriters as follows:
(i) The Depositor has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-201743) on Form S-3 for the registration of the Offered Certificates under the Securities Act of 1933 (the “1933 Act”), which registration statement was effective as of the Time of Sale (as defined below), is effective as of the date hereof and will be effective as of any Subsequent Time of Sale and as of the Closing Date. The Depositor proposes to file with the Commission pursuant to Rule 424(b) under the 1933 Act a supplement, dated the date hereof, to the prospectus, dated September 14, 2015, included in such registration statement relating to the Offered Certificates and the plan of distribution thereof and has previously advised you of all further information (financial and other) with respect to the Offered Certificates set forth therein. Such registration statement, including the exhibits thereto, any information incorporated therein by reference and all information that is contained in the Prospectus (as defined below), as it may have been amended or supplemented at the date of the Prospectus Supplement (as defined below), is hereinafter referred to as the “Registration Statement”; the prospectus in the form first required to be filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the 1933 Act, is hereinafter referred to as the “Base Prospectus”; the supplement to the Base Prospectus relating to the Offered Certificates in the form first required to be filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the 1933 Act (including the Base Prospectus as so supplemented) is hereinafter referred to as the “Prospectus Supplement”; and the Base Prospectus and the Prospectus Supplement,
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together, are hereinafter referred to as the “Prospectus.” The conditions to the use of a registration statement on Form S-3 under the 1933 Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415(a)(1) under the 1933 Act have been satisfied with respect to the Registration Statement. In accordance with Rule 172(c) of the 1933 Act, the Depositor shall make a good faith and reasonable effort to file the Prospectus, in the form that satisfies Section 10(a) of the 1933 Act, within the time required under Rule 424 under the 1933 Act and, in the event that the Depositor fails to timely file the Prospectus, the Depositor shall file the Prospectus as soon as practicable thereafter.
(ii) At or prior to the time when sales to purchasers of the Offered Certificates were first made in accordance with Rule 159 of the 1933 Act, which was (a) approximately 10:33 a.m. (Eastern Time) on September 14, 2015 with respect to all of the Offered Certificates (other than the Class X-A, X-B and X-D Certificates); (b) approximately 1:47 p.m. (Eastern Time) on September 14, 2015 with respect to the Class X-D Certificates, and (c) approximately 3:02 p.m. (Eastern Time) on September 15, 2015 with respect to the Class X-A and X-B Certificates (individually and collectively, the “Time of Sale”), the Depositor had prepared and filed with the Commission the following information (collectively, the “Time of Sale Information”): (i) a “free writing prospectus,” as defined in Rule 405 under the 1933 Act (a “Free Writing Prospectus”), prepared by or on behalf of the Depositor, dated September 8, 2015 (the “Transaction FWP”), the cover page of which is attached hereto as Annex A; (ii) the Base Prospectus; (iii) the Free Writing Prospectus designated as a Structural and Collateral Term Sheet, dated September 8, 2015 (the “Structural and Collateral Term Sheet FWP”), relating to the Offered Certificates, the first page of which is attached hereto as Annex B; (iv) the Free Writing Prospectus, filed with the Commission on September 8, 2015, under SEC Accession No. 0001539497-15-001408 (the “Appendix I FWP”); and (v) the Free Writing Prospectus, dated September 11, 2015, filed with the Commission on September 11, 2015 under SEC Accession No. 0001539497-15-001429, containing a Structural Update section and a General section on the Use of Proceeds and Plan of Distribution (Conflicts of Interest) (the “Pre-Pricing FWP”), relating to the Offered Certificates (each of the Structural and Collateral Term Sheet FWP, the Appendix I FWP and the Pre-Pricing FWP are referred to herein as an “Additional FWP” and, collectively, as the “Additional FWPs”). The Time of Sale Information was delivered to investors in the Offered Certificates prior to the Time of Sale. If, subsequent to the date of this Agreement, the Depositor or the Underwriters determine that, as to investors in one or more Classes of the Offered Certificates, the Time of Sale Information as of the Time of Sale included an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Underwriters terminate their old purchase contracts and enter into new purchase contracts with investors in such Classes of the Offered Certificates, then “Time of Sale Information” shall also refer to the additional information conveyed to investors at the time of entry into such new purchase contract (each, a “Subsequent Time of Sale”), including any information that corrects such material misstatements or omissions (“Corrective Information”) and “Time of Sale” will refer to the time and date on which such new purchase contracts were entered into.
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(iii) As of the date hereof, as of the date the Registration Statement became effective or was deemed effective pursuant to Rule 430B under the 1933 Act, as of the Time of Sale (including any Subsequent Time of Sale), as of the date the Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the date when, prior to the Closing Date, any amendment to the Registration Statement becomes effective or any supplement to the Prospectus Supplement is filed with the Commission, and as of the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, complied, complies and will comply in all material respects with the applicable requirements of the 1933 Act and the rules and regulations thereunder, and (ii) the Registration Statement, as amended as of any such time, did not, does not and will not contain any untrue statement of a material fact and did not, does not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented as of any such time, did not, does not and will not contain an untrue statement of a material fact and did not, does not and will not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Depositor makes no representations, warranties or agreements as to (A) the Underwriter Information contained in the Prospectus or the information contained in any revision or amendment of or supplement to the Prospectus in reliance upon and in conformity with information furnished in writing to the Depositor by any Underwriter on behalf of itself or the other Underwriters specifically for use in connection with the preparation of such revision or amendment of or supplement to the Prospectus, (B) any information contained in or omitted from the portions of the Prospectus Supplement for which the Mortgage Loan Sellers are obligated to indemnify the Underwriters under the Indemnification Agreements, each dated the date hereof, between the respective Mortgage Loan Seller, the Depositor and the Underwriters (such information, the “Mortgage Loan Seller Information”), or (C) any information regarding a Transaction Party contained in or omitted from the portions of the Prospectus Supplement for which such Transaction Party is obligated to indemnify the Underwriters under a separate related indemnification agreement, dated the date hereof, entered into between such Transaction Party, the Depositor and the Underwriters (such information, the “Transaction Party Information”). The parties hereto acknowledge and agree that the “Underwriter Information” shall consist of: (x) with respect to the Pre-Pricing FWP, the second, fourth, fifteenth, sixteenth and seventeenth paragraphs and the first and second sentences of the fifth paragraph under the heading “Plan of Distribution (Conflicts of Interest)” in the General section of the Pre-Pricing FWP; and (y) with respect to the Prospectus Supplement, the second, fourth, fifteenth, sixteenth and seventeenth paragraphs and the first and second sentences of the fifth paragraph of the section of the Prospectus Supplement entitled “Plan of Distribution (Conflicts of Interest)” and the first sentence of the last paragraph on the cover page of the Prospectus Supplement. Any Issuer Information (as defined below) provided by the Depositor to any Underwriter, as of the date that such Issuer Information was so provided for inclusion in an Underwriter Free Writing Prospectus (as defined below), did not, as of the date that such Issuer Information was so provided, and does not, as of the date of this Agreement, contain an untrue statement of a
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material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Depositor shall not be in breach of this representation if the Depositor provided Issuer Information to the Underwriters, correcting such untrue statement or omission of a material fact contained in previously delivered Issuer Information, so long as the Depositor delivered the corrected information to the Underwriters a reasonable period time prior to the Time of Sale.
(iv) The Time of Sale Information, at the Time of Sale (including any Time of Sale Information existing at any Subsequent Time of Sale, if any, at such Subsequent Time of Sale), did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Depositor makes no representation and warranty with respect to (A) any statements or omissions made in reliance upon and in conformity with the Underwriter Information, (B) any Mortgage Loan Seller Information contained in or omitted from such Time of Sale Information, or (C) any Transaction Party Information contained in or omitted from such Time of Sale Information. The parties acknowledge that none of the Underwriters has furnished any Underwriter Information to the Depositor expressly for use in the Time of Sale Information (other than, with respect to the Pre-Pricing FWP, the information set forth in clause (x) of the definition of “Underwriter Information”).
(v) The Depositor (including its agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not make, use, prepare, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the 1933 Act) that constitutes an offer to sell or solicitation of an offer to buy the Offered Certificates other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) the Prospectus, (iii) the Time of Sale Information, and (iv) each other written communication of the Depositor or its agents and representatives approved by the Underwriters either in writing in advance or in any other manner mutually agreed to by the Underwriters and the Depositor (each such communication referred to in the immediately preceding clause (iii) and this clause (iv) constituting an “issuer free writing prospectus”, as defined in Rule 433(h) under the 1933 Act, being referred to as an “Issuer Free Writing Prospectus”). Each Issuer Free Writing Prospectus complied or, if used after the date hereof, will comply, in all material respects with the 1933 Act and the rules and regulations promulgated thereunder, has been filed or will be filed in accordance with Section 4 hereof (to the extent required thereby) and did not at the Time of Sale, and at the Closing Date will not, contain any untrue statements of a material fact or (when read in conjunction with the other Time of Sale Information conveyed to the subject investor) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or include any information that conflicted or conflicts with the information contained in the Registration Statement; provided that the Depositor makes no representation and warranty with respect to (i) any statements or omissions made in reliance upon and in conformity with the Underwriter Information, (ii) any Mortgage
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Loan Seller Information contained in or omitted from any Issuer Free Writing Prospectus, or (iii) any Transaction Party Information contained in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge that none of the Underwriters has furnished any Underwriter Information to the Depositor expressly for use in any Issuer Free Writing Prospectus (other than, with respect to the Pre-Pricing FWP, the information set forth in clause (x) of the definition of “Underwriter Information”). The Depositor acknowledges that the Transaction FWP, the Additional FWPs and any Draft PSA (as defined in Section 7(a) hereof) are the only Issuer Free Writing Prospectuses (as defined below) prepared by or on behalf of the Depositor as of the date hereof.
(vi) The Depositor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with full power and authority to own its properties and conduct its business, as described in the Prospectus, and to enter into and perform its obligations under this Agreement, the MLPAs and the PSA, and is conducting its business so as to comply in all material respects with all applicable statutes, ordinances, rules and regulations of the jurisdictions in which it is conducting business.
(vii) There are no actions or proceedings against, or investigations of, the Depositor pending, or, to the knowledge of the Depositor, threatened, before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the PSA, any MLPA or the Certificates, (ii) seeking to prevent the issuance of the Offered Certificates or the consummation of any of the transactions contemplated by this Agreement, any MLPA or the PSA, (iii) which might materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, any MLPA, the PSA or the Certificates or (iv) seeking to affect adversely the federal income tax attributes of the Offered Certificates described in the Prospectus.
(viii) No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending or, to the Depositor’s knowledge, threatened by the Commission. The Depositor has not received and is not aware of any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information or any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(ix) The issuance and sale of the Certificates, the execution, delivery and performance of this Agreement, the PSA and the MLPAs by the Depositor and the consummation of the transactions contemplated herein and therein by the Depositor and compliance by the Depositor with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and will not (A) contravene any provision of the certificate of incorporation or by-laws of the Depositor or applicable law or (B) conflict with or constitute a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Depositor pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or
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other instrument to which the Depositor or any of its subsidiaries is a party or by which it may be bound or to which any of the property or assets of the Depositor is subject, which conflict, breach, default, lien, charge or encumbrance is reasonably likely to materially and adversely affect the Depositor’s ability to perform its obligations under this Agreement, the MLPAs or the PSA, or any statute, order, decree, rule or regulation applicable to the Depositor or any of its subsidiaries of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor or any of its subsidiaries. Neither the Depositor nor any of its subsidiaries is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, decree, rule or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects the ability of the Depositor to enter into or perform its obligations under this Agreement, any MLPA or the PSA.
(x) The Offered Certificates have been duly and validly authorized by the Depositor for issuance and sale (or will have been so authorized prior to the issuance thereof) pursuant to this Agreement and the PSA. When issued, authenticated and delivered by the Certificate Administrator pursuant to the provisions of this Agreement and of the PSA against payment of the consideration therefor by the Underwriters in accordance with this Agreement, the Offered Certificates will be duly and validly issued and outstanding and entitled to the benefits provided by the PSA, except as the enforceability thereof may be limited by the effect of (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. The Offered Certificates, the PSA, the MLPAs and the other transaction documents conform in all material respects to all statements relating thereto contained in each of (A) the Prospectus, (B) the Time of Sale Information and (C) any Issuer Information (as may have been revised and corrected if such revised or corrected information was delivered a reasonable time prior to the Time of Sale) delivered to any Underwriter for inclusion in an Underwriter Free Writing Prospectus.
(xi) No authorization, approval or consent of any court or governmental authority or agency is necessary in connection with the offering, issuance or sale of the Offered Certificates hereunder, except such as have been, or as of the Closing Date will have been, obtained or such as may otherwise be required under applicable state securities laws in connection with the purchase and offer and sale of the Offered Certificates by the Underwriters and any recordation of the respective assignments of the Mortgage Loans to the Trustee pursuant to the PSA that have not yet been completed.
(xii) This Agreement and each MLPA have been, and, as of the Closing Date, the PSA will be, duly authorized, executed and delivered by the Depositor. This Agreement and the MLPAs constitute, and as of the Closing Date the PSA will constitute, a legal, valid and binding agreement enforceable against the Depositor in accordance with its terms, except as such enforceability may be limited by the effect of (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar
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laws affecting the enforcement of the rights of creditors generally, (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport or are construed to provide indemnification from securities law liabilities.
(xiii) As of the Closing Date, the representations and warranties of the Depositor set forth in the PSA and any MLPA will be true and correct.
(xiv) There are no contracts, indentures or other documents of a character required by the 1933 Act or by the rules and regulations thereunder to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that have not been so described or referred to therein or so filed or incorporated by reference as exhibits thereto.
(xv) Immediately prior to the assignment of the Mortgage Loans to the Trustee, the Depositor will have good title to, and will be the sole owner of, each Mortgage Loan free and clear of any pledge, mortgage, lien, security interest, adverse claim or other encumbrance of any other person. At the time of the execution and delivery of the PSA, the Depositor (A) will convey to the Trustee, or cause to be conveyed to the Trustee, all of the Depositor’s right, title and interest in and to the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, “Liens”) granted by or imposed upon the Depositor, (B) will not have assigned to any other person any of its right, title or interest in the Mortgage Loans or in the PSA or, except for the Underwriters, the Offered Certificates, and (C) will have the power and authority to transfer or cause to be transferred its right, title and interest in the Mortgage Loans to the Trustee and to sell the Offered Certificates to the Underwriters. Upon execution and delivery of the PSA by the Trustee, the Trustee will have acquired ownership of all of the Depositor’s right, title and interest in and to the Mortgage Loans except to the extent disclosed in the Prospectus, and upon delivery to the Underwriters of the Offered Certificates pursuant hereto, each Underwriter will have good title to the Offered Certificates purchased by such Underwriter, in each case free of Liens granted by or imposed upon the Depositor.
(xvi) The PSA is not required to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Depositor is not, and the issuance and sale of the Offered Certificates in the manner contemplated by the Prospectus will not cause the Depositor or the Trust Fund to be, subject to registration or regulation as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”). The Trust Fund will be relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act or Rule 3a-7 under the 1940 Act, although there may be additional exclusions or exemptions available to the Trust Fund. The Trust Fund will not be relying on an exclusion or exemption under Section 3(c)(1) or Section 3(c)(7) of the 1940 Act as a basis for not registering under the 1940 Act. The Trust Fund is being structured so as not to constitute a “covered fund” for purposes of Section 619 of the
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Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010), also known as the Volcker Rule.
(xvii) Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Depositor will report the transfer of the Mortgage Loans to the Trustee in exchange for the Certificates and the sale of the Offered Certificates to the Underwriters pursuant to this Agreement as a sale of the interest in the Mortgage Loans evidenced by the Certificates. The consideration received by the Depositor upon the sale of the Offered Certificates to the Underwriters will constitute at least reasonably equivalent value and fair consideration for the Offered Certificates. The Depositor will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Offered Certificates to the Underwriters. The Depositor is not selling the Offered Certificates to the Underwriters with any intent to hinder, delay or defraud any of the creditors of the Depositor.
(xviii) The Depositor has not relied on the Underwriters for any tax, regulatory, accounting or other advice with respect to compliance with or registration under any statute, rule or regulation of any governmental, regulatory, administrative or other agency or authority. The Depositor acknowledges and agrees that (i) the terms of this Agreement and the offering (including the price of the Offered Certificates) were negotiated at arm’s length between sophisticated parties represented by counsel; (ii) no fiduciary, advisory or agency relationship between the Depositor and the Underwriters has been created as a result of any of the transactions contemplated by this Agreement, irrespective of whether any Underwriter has advised or is advising the Depositor on other matters; (iii) the Underwriters’ obligations to the Depositor in respect of the offering, and the purchase and sale, of the Offered Certificates are set forth in this Agreement in their entirety; and (iv) it has obtained such legal, tax, accounting and other advice as it deems appropriate with respect to this Agreement and the transactions contemplated hereby and any other activities undertaken in connection therewith, and it is not relying on the Underwriters with respect to any such matters.
(xix) The Trust Fund (other than those portions specified in the PSA) will qualify as three separate real estate mortgage investment conduits (each, a “REMIC”) for federal income tax purposes pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”); the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular Certificates and the Class X REMIC III Regular Interests will constitute “regular interests” in a REMIC; and the Class R Certificates will constitute the sole class of “residual interests” in each of REMIC I, REMIC II and REMIC III. The Grantor Trust will be treated as a grantor trust under Subpart E of Part I of Subchapter J of the Code and Treasury Regulations Section 301.7701-4(c)(1), and the Exchangeable Certificates and the Class V Certificates will represent ownership interests in the assets of the Grantor Trust.
(xx) There are no legal or governmental actions or proceedings or investigations pending or, to the knowledge of the Depositor, threatened, to which the Depositor is a party or to which any of the properties of the Depositor are subject that are required to be described in the Prospectus or the Time of Sale Information or necessary in
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order to make the statements therein in the light of the circumstances under which they were made, not misleading and that are not so described, nor are there any contracts or other documents to which the Depositor is a party or to which the Depositor or any of the properties of the Depositor are subject that are required to be described in the Prospectus.
(xxi) The Depositor possesses all material licenses, certificates, authorizations and/or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, and the Depositor has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Depositor.
(xxii) At the Closing Date, the respective classes of Offered Certificates listed on Schedule I hereto shall have been assigned ratings by the Rating Agencies (as defined in the PSA) no less than those set forth in the Time of Sale Information and such ratings shall not have been withdrawn, suspended or qualified.
(xxiii) Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of this Agreement, the PSA, the MLPAs and the Offered Certificates payable by the Depositor (other than income taxes) have been paid or will be paid at or prior to the Closing Date.
(xxiv) None of the Depositor or any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes.
(xxv) The Depositor is not, and on the date on which the first bona fide offer of the Offered Certificates is made (within the meaning of Rule 164(h)(2) under the 1933 Act) will not be, an “ineligible issuer,” as defined in Rule 405 under the 1933 Act.
(xxvi) If the Depositor has executed and delivered a written representation to any Rating Agency (other than any Rating Agency to which BANA has executed and delivered a written representation as set forth in Section 1(b)(iv) hereof) that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (E) of Rule 17g-5 under the Securities Exchange Act of 1934, as amended (such act, the “1934 Act”, and such rule of the 1934 Act, “Rule 17g-5”), then the Depositor has complied, and will hereafter comply, with such representation, other than any breach of such representation (A) that would not have a material adverse effect on the Offered Certificates or (B) arising from a breach by any of the Underwriters of a representation, warranty and agreement set forth in this Agreement.
(xxvii) The statements set forth in each of the Transaction FWP and the Prospectus Supplement under the heading “Material Federal Income Tax Consequences”, and in the Base Prospectus under the heading “Material federal income tax consequences”, insofar as they purport to describe
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matters of law or legal conclusions with respect thereto, are correct in all material respects.
(xxviii) The Depositor has not obtained (and, through and including the Closing Date, will not obtain) any “third-party due diligence report” as defined in Rule 15Ga-2 under the 1934 Act (each, a “Due Diligence Report”) in connection with the transactions contemplated by this Agreement and the Prospectus Supplement other than the agreed-upon procedures report (the “Accountants’ Due Diligence Report”), in form and substance reasonably satisfactory to the Underwriters, obtained from the firm of certified public accountants engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountants”), a copy of which has been furnished to the Underwriters, at the request of the Depositor; and, except for the Accountants with respect to the Accountants’ Due Diligence Report, the Depositor has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the 1934 Act (“Due Diligence Services”) in connection with the transactions contemplated by this Agreement and the Prospectus Supplement. The Accountants have consented to the use of the Accountants’ Due Diligence Report in the preparation of a Form 15G (as defined below) furnished on EDGAR as required by Rule 15Ga-2. The Depositor received a certification on Form ABS Due Diligence-15E (a “Form 15E”) from the Accountants in connection with the Due Diligence Services provided by them, and such Form 15E was posted promptly after receipt, as required by Rule 17g-5 on the Rule 17g-5 website established by the Depositor or BANA, and the Depositor has not received any other Form 15E from any party. The Depositor (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and any conclusions of the Accountants’ Due Diligence Report and meeting all other requirements of Rule 15Ga-2, any other rules and regulations of the Commission and the 1934 Act; (B) provided a copy of the final draft of each Form 15G to the Underwriters at least six Business Days before the date hereof; and (C) furnished each Form 15G to the Commission on EDGAR at least five Business Days before the date hereof as required by Rule 15Ga-2. No portion of any Form 15G contains any names, addresses, other personal identifiers or zip codes with respect to any individuals, or any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the meaning of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999.
(xxix) If the Depositor executed and delivered a written representation to any Rating Agency that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (E) of Rule 17g-5, then the Depositor shall promptly post (or cause to be promptly posted) on the Rule 17g-5 website established by the Depositor or BANA or otherwise maintained pursuant to the PSA, promptly following receipt, any Form 15E received by it or BANA subsequent to the date hereof in connection with the transactions contemplated by this Agreement and the Prospectus Supplement.
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(b) BANA represents and warrants to, and covenants with, the Underwriters as follows:
(i) It has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, with the power and authority to enter into and perform its obligations under this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered by BANA. This Agreement constitutes a legal, valid and binding agreement enforceable against BANA in accordance with its terms, except as such enforceability may be limited by the effect of (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, (ii) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (iii) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport or are construed to provide indemnification from securities law liabilities;
(iii) The execution, delivery and performance of this Agreement by BANA and the consummation of the transactions contemplated herein by BANA and compliance by BANA with its obligations hereunder have been duly authorized by all necessary corporate action and will not (i) contravene any provision of the articles of association or bylaws of BANA or applicable law or (ii) conflict with or constitute a breach of or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of BANA pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which BANA is a party or by which it may be bound or to which any of the property or assets of BANA is subject, which conflict, breach, default, lien, charge or encumbrance is reasonably likely to materially and adversely affect BANA’s ability to perform its obligations under this Agreement;
(iv) BANA has executed and delivered a written representation to each Rating Agency (other than any Rating Agency to which the Depositor has executed and delivered a written representation as set forth in Section 1(a)(xxvi) hereof) that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (E) of Rule 17g-5, and BANA has complied, and will hereafter comply, with such representation, other than any breach of such representation (a) that would not have a material adverse effect on the Offered Certificates or (b) arising from a breach by any of the Underwriters of a representation, warranty and agreement set forth in this Agreement;
(v) There is no action, suit or proceeding against BANA pending, or, to the knowledge of BANA, threatened, before any court, arbitrator, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation by BANA of any of the transactions contemplated by this Agreement or (C) which might materially and adversely affect the performance by BANA of its obligations under, or the validity or enforceability of, this Agreement;
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(vi) Except for the Accountants’ Due Diligence Report, BANA has not obtained (and, through and including the Closing Date, will not obtain) any Due Diligence Report in connection with the transactions contemplated by this Agreement and the Prospectus Supplement. Except for the Accountants with respect to the Accountants’ Due Diligence Report, BANA has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes Due Diligence Services, and has not received a Form 15E from any party, in connection with the transactions contemplated by this Agreement and the Prospectus Supplement;
(vii) If BANA executed and delivered a written representation to any Rating Agency that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (E) of Rule 17g-5, BANA shall promptly post (or cause to be promptly posted) on the Rule 17g-5 website established by the Depositor or BANA or otherwise maintained pursuant to the PSA, promptly following receipt, any Form 15E received by it or the Depositor subsequent to the date hereof in connection with the transactions contemplated by this Agreement and the Prospectus Supplement; and
(viii) Each representation and warranty of the Depositor set forth in Section 1(a) hereof is true and correct as of the date hereof or as of the date specified in such representation and warranty.
(c) Each Underwriter, severally and not jointly, represents, warrants and agrees that:
(i) as of the date hereof and as of the Closing Date, such Underwriter has complied with all of its obligations hereunder; and
(ii) in relation to each member state of the European Economic Area which has implemented the EU Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the EU Prospectus Directive is implemented in that Relevant Member State, it has not made and will not make an offer of the Offered Certificates to the public in that Relevant Member State other than:
(A) to any legal entity which is a “qualified investor” as defined in the EU Prospectus Directive;
(B) to fewer than 150 natural or legal persons (other than “qualified investors” as defined in the EU Prospectus Directive) subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Depositor for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the EU Prospectus Directive;
provided, that no such offer of the Offered Certificates above shall require the Trust, the Depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the EU Prospectus Directive.
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For the purposes of the prior paragraph, (1) the expression an “offer of the Offered Certificates to the public” in relation to any Offered Certificate in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Certificates so as to enable an investor to decide to purchase or subscribe to the Offered Certificates, as the same may be varied in that Relevant Member State by any measure implementing the EU Prospectus Directive in that Relevant Member State and (2) the expression “EU Prospectus Directive” means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU) and includes any relevant implementing measure in the Relevant Member State.
(iii) (A) in the United Kingdom, it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Offered Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust or the Depositor; and
(B) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Offered Certificates in, from or otherwise involving the United Kingdom.
(iv) It has not provided, as of the date of this Agreement, and covenants with the Depositor that it will not provide, on or prior to the Closing Date, to any Rating Agency or other “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the 1934 Act and used herein, an “NRSRO”), any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the PSA or any other information, that could be reasonably determined to be relevant to determining an initial credit rating for the Certificates (as contemplated by Rule 17g-5(a)(3)(iii)C)), without the prior consent of BANA.
(v) It will not provide to any Rating Agency or other NRSRO, any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the PSA or any other information, that could be reasonably determined to be relevant to undertaking credit rating surveillance for the Certificates (as contemplated by Rule 17g-5(a)(iii)(3)(D)), without the prior consent of BANA.
(vi) It will not offer or sell any Offered Certificates, directly or indirectly, in Japan or to, or for the benefit of, any Japanese Person, or to others for re-offering or resale, directly or indirectly, in Japan or to any Japanese Person, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Act of Japan and any other applicable laws and regulations. For the purposes of this paragraph, “Japanese Person” shall mean any person resident in Japan, including any corporation or other entity organized under the laws and regulations of Japan.
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(vii) Except for the Accountants’ Due Diligence Report, such Underwriter has not obtained (and, through and including the Closing Date, will not obtain) any Due Diligence Report in connection with the transactions contemplated by this Agreement and the Prospectus Supplement. Except for the Accountants with respect to the Accountants’ Due Diligence Report, such Underwriter has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes Due Diligence Services, and has not received a Form 15E from any party, in connection with the transactions contemplated by this Agreement and the Prospectus Supplement.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon the representations and warranties herein contained, the Depositor shall sell to the Underwriters, and each Underwriter shall, severally and not jointly, purchase from the Depositor, at the related purchase price set forth on Schedule I hereto, Offered Certificates of each class thereof having an actual or notional amount as set forth on Schedule I hereto opposite its name. There will be added to the purchase price of the Offered Certificates an amount equal to interest accrued thereon pursuant to the terms thereof from September 1, 2015 to but excluding the Closing Date.
3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the Offered Certificates shall be made at 10:00 a.m. New York City time on September 24, 2015, which time and date may be postponed by agreement between the Underwriters and the Depositor (such time and date of payment and delivery, the “Closing Date”). Payment shall be made to the Depositor by the Underwriters of the purchase prices of the Offered Certificates as set forth in Schedule I hereto in immediately available Federal funds wired to such bank as may be designated by the Depositor, against delivery of the Offered Certificates. Delivery of the Offered Certificates will be made in book-entry form through the facilities of The Depository Trust Company (“DTC”). Each class of Offered Certificates will be represented by one or more definitive global Offered Certificates to be deposited by or on behalf of the Depositor with DTC or the Trustee. The Offered Certificates will be made available for examination by the Underwriters not later than 10:00 a.m. New York City time on the last business day prior to the Closing Date. The closing of the transactions contemplated hereby shall be made at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Suite 2400, Charlotte, North Carolina 28202, or at such other place as shall be agreed upon by the Underwriters and the Depositor.
4. Offering Communications; Free Writing Prospectuses.
It is understood that the Underwriters propose to offer the Offered Certificates for sale as set forth in this Agreement, the Time of Sale Information and the Prospectus. In connection with the offering of the Offered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter shall be responsible for any breach of the following conditions by any other Underwriter)):
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(i) Unless preceded or accompanied by the Prospectus, the Underwriters shall not convey or deliver any written communication to any person in connection with the initial offering of the Offered Certificates, unless such written communication (1) is made in reliance on Rule 134 under the 1933 Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the 1933 Act, (3) is made in reliance on Rule 172 under the 1933 Act, (4) constitutes Time of Sale Information or a Free Writing Prospectus that does not constitute Time of Sale Information, or (5) constitutes such other written communication approved by the Depositor in advance. Without the prior written consent of the Depositor, the Underwriters shall not convey or deliver in connection with the initial offering of the Offered Certificates any “computational materials” or “ABS term sheets” in reliance on the “Kidder/PSA” no-action letters or any “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the 1933 Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no later than one (1) business day prior to the date of first use thereof or such later date as may be agreed to by the Depositor, any Free Writing Prospectus that was prepared by or on behalf of such Underwriter (an “Underwriter Free Writing Prospectus”) and that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act and footnote 271 of the Commission’s Securities Offering Reform Release No. 33-8591 (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Information); provided that (a) any such Free Writing Prospectus or portion thereof prepared by or on behalf of such Underwriter that contains only a description of the final terms of the Offered Certificates shall be delivered by such Underwriter to the Depositor no later than the later of (x) the date such final terms have been established for all classes of the Offered Certificates and (y) the date of first use, and (b) any such Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by such Underwriter to the Depositor no later than the later of (x) one (1) business day prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act or such later date as may be agreed to by the Depositor and (y) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor that the Free Writing Prospectuses to be furnished to the Depositor by such Underwriter pursuant to Section 4(ii) hereof will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Certificates.
(iv) Each Underwriter represents and warrants to the Depositor that each Free Writing Prospectus required to be provided by it to the Depositor pursuant to Section 4(ii) did not, as of the Time of Sale, and will not as of the Closing Date, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading; provided, however, that such Underwriter makes no representation to the extent such misstatements or omissions were the result of any inaccurate Issuer
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Information, Mortgage Loan Seller Information or Transaction Party Information), which information was not corrected by Corrective Information subsequently supplied by the Depositor or the related Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Each Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by any Underwriter to the Depositor pursuant to Section 4(ii);
(C) Any Free Writing Prospectus or portion thereof that contains a description of the final terms of the Offered Certificates, after such terms have been established for all classes in the offering;
(D) Any Free Writing Prospectus for which the Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and
(E) Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.
The Depositor is required to file such Free Writing Prospectuses with the Commission in electronic format and the Underwriters shall use reasonable efforts to provide to the Depositor such Free Writing Prospectuses, or portions thereof, in either Microsoft Word® or Microsoft Excel® format (and not in a PDF) or such other format as is acceptable to the Depositor, except to the extent that the Depositor, in its sole discretion, waives such requirements.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section 4(v) hereof by the Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Offered Certificates shall be filed by the Depositor with the Commission within two (2) days of the later of the date such final terms have been established for all classes of Offered Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material shall be filed by the Depositor with the Commission no later than the later of (i) the due date for filing the final Prospectus relating to the Offered Certificates pursuant to Rule 424(b) under the 1933 Act and (ii) two (2) business days after the date of first use of such Free Writing Prospectus; and
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(C) Any Free Writing Prospectus required to be filed pursuant to Section 4(v)(D) may, if no payment has been made or consideration has been given by or on behalf of the Depositor for the Free Writing Prospectus or its dissemination, be filed by the Depositor with the Commission not later than four (4) business days after the Depositor becomes aware of the publication, radio or television broadcast or other dissemination of such Free Writing Prospectus.
(vii) Each Underwriter (with the reasonable cooperation of the Depositor) shall file with the Commission any Free Writing Prospectus (other than a Free Writing Prospectus required to be delivered to the Depositor pursuant to Section 4(ii) hereof) that is neither an Issuer Free Writing Prospectus nor contains Issuer Information and that is used or referred to by it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(vii) hereof, each Underwriter (with the reasonable cooperation of the Depositor) shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(v) (other than 4(v)(C)), 4(vii) and 4(viii) hereof, (A) neither the Depositor nor any Underwriter shall be required to file (1) any Issuer Information contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other offering participant other than the Depositor, if such information is included (including through incorporation by reference) in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Certificates, (2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof, or (3) any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission, and (B) no Underwriter shall be required to file any Free Writing Prospectus to the extent that the information contained therein is included in a prospectus or Free Writing Prospectus previously filed that relates to the offering of the Offered Certificates.
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(x) The Depositor and the Underwriters each agree that any Free Writing Prospectuses prepared by it shall contain the following legend, or substantially equivalent legend that complies with Rule 433 of the 1933 Act:
The depositor has filed a registration statement (including a prospectus) with the SEC (File Number 333-201743) for the offering to which this free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the depositor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll free 1-800-294-1322 or by email to dg.Prospectus_Requests@baml.com.
(xi) The Depositor and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 4, and that have not been filed, for a period of three (3) years following the initial bona fide offering of the Offered Certificates.
(xii) (A) If the Depositor becomes aware that, as of the Time of Sale or as of the Closing Date, any information in an Issuer Free Writing Prospectus or any Issuer Information contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading, or conflicted or conflicts with the information contained in the Registration Statement (a “Defective Issuer Free Writing Prospectus”), the Depositor shall notify the Underwriters of such untrue statement or omission or conflict within one business day after discovery and the Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement, omission or conflict in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”).
(B) If any Underwriter becomes aware that, as of the Time of Sale or as of the Closing Date, any information in an Underwriter Free Writing Prospectus delivered to an investor in any Offered Certificates contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading (a “Defective Underwriter Free Writing Prospectus” and, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Depositor of such untrue statement or omission within one business day after discovery.
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(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus (and the defective information does not constitute Issuer Information), prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”); provided that if an Underwriter Free Writing Prospectus and Issuer Free Writing Prospectus are both determined to be a Defective Free Writing Prospectus as a result of the same untrue statement or omission in each such document, then the Issuer shall prepare a single Corrected Free Writing Prospectus correcting both such Defective Free Writing Prospectuses;
(2) either (i) deliver the Corrected Free Writing Prospectus to each investor that received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor, clearly identifying or highlighting the Corrective Information, or (ii) deliver the Corrected Free Writing Prospectus to each investor that received the Defective Free Writing Prospectus and has entered into a contract of sale, clearly identifying or highlighting the Corrective Information, and (x) notify in writing each such investor in a prominent fashion that the prior contract of sale with such investor has been terminated, and of the investor’s rights as a result of termination of such agreement, and (y) provide each such investor with an opportunity to affirmatively agree to purchase the Offered Certificates on the terms described in the Corrected Free Writing Prospectus; and
(3) comply with any other requirements for reformation of the original contract of sale with such investor, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(D) If the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus (and the Defective Free Writing Prospectus was not defective based solely on an untrue statement or omission in Underwriter Information), and the Underwriters shall in good faith incur any costs to an investor in connection with the reformation of the contract of sale with the investor, the Depositor agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, the Underwriters first permit the Depositor access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that after the Prospectus is available such Underwriter shall not distribute any written information concerning the Offered Certificates to a prospective investor unless such information is preceded or accompanied by the Prospectus.
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5. Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give each of the Underwriters prior written notice of its intention to prepare, use, authorize, approve, refer to or file any Issuer Free Writing Prospectus or to file or prepare (i) any amendment to the Registration Statement at any time prior to the Closing Date or (ii) any amendment or supplement to the Prospectus (including any revised prospectus that the Depositor proposes for use by the Underwriters in connection with the offering of the Offered Certificates and that differs from the prospectus on file at the Commission at the time the Registration Statement became effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) under the 1933 Act) at any time during the period during which a prospectus is required to be delivered to purchasers of the Offered Certificates under the 1933 Act (the “Prospectus Delivery Period”), and the Depositor will furnish the Underwriters with copies of any such Issuer Free Writing Prospectus, amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such amendment or supplement or use any such prospectus to which the Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter written notice of (i) when any amendment to the Registration Statement has become effective (subject to paragraph (a) of this Section 5), (ii) any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information relating to the Depositor or the Offered Certificates, (iii) any written notification received by the Depositor of suspension of qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or, to the knowledge of the Depositor, threatening any proceeding for that purpose. The Depositor will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) If, at any time during the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the rules under the 1933 Act, the Depositor promptly will prepare and file with the Commission an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, will use its best efforts to cause such amendment of the Registration Statement to be made effective as soon as possible.
(d) The Depositor will cause each of the Base Prospectus and the Prospectus Supplement to be transmitted to the Commission for filing pursuant to Rule 424(b) under the 1933 Act by means reasonably calculated to result in filing with the Commission pursuant to said
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rule. Subject to Section 4 hereof, the Depositor will cause the Issuer Free Writing Prospectus to be transmitted for filing pursuant to Rule 433 under the 1933 Act by means reasonably calculated to result in filing with the Commission pursuant to said rule.
(e) The Depositor will furnish to the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto that shall become effective on or prior to the Closing Date and, during the Prospectus Delivery Period, as many copies of the Base Prospectus and the Prospectus Supplement and any amendments and supplements thereto as the Underwriters may reasonably request. Prior to the date on which the Base Prospectus and the Prospectus Supplement are available, the Depositor will furnish to the Underwriters and each counsel for the Underwriters, without charge as many copies of the Transaction FWP and each Issuer Free Writing Prospectus as the Underwriters may reasonably request.
(f) The Depositor will furnish such information, execute such instruments and take such action, if any, as may be required to qualify the Offered Certificates for sale under the laws of such jurisdictions as the Underwriters may reasonably designate and will maintain such qualification in effect so long as required for the initial distribution of Offered Certificates; provided, however, that the Depositor shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it from the sale of the Offered Certificates in the manner specified in the Prospectus under “USE OF PROCEEDS.”
(h) Whether or not the transactions contemplated in the PSA are consummated or this Agreement is terminated, the Depositor will pay or cause to be paid all expenses incident to the performance of the obligations of the Depositor under this Agreement, including, without limitation, (i) the fees, disbursements and expenses of the Depositor’s counsel and accountants in connection with the purchase and transfer of the Mortgage Loans and the issuance and sale of the Offered Certificates, (ii) the costs and expenses of preparing and delivering the PSA, the MLPAs and the other transaction documents to the parties thereto, (iii) the fees, costs and expenses of the Trustee, the Custodian and the Certificate Administrator (to the extent not otherwise payable under the PSA, and except to the extent that another party is obligated to pay such amounts thereunder), (iv) all fees and expenses incurred in connection with the registration and delivery of the Offered Certificates under the 1933 Act, and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Time of Sale Information, any Issuer Free Writing Prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities specified above, (v) the costs of printing or producing any “blue sky” memorandum in connection with the offer and sale of the Offered Certificates under state securities laws and all expenses in connection with the qualification of the Offered Certificates for the offer and sale under state securities laws as provided in Section 5(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the “blue sky” memorandum, (vi) the cost of printing the Offered Certificates, (vii) all costs and expenses related to the transfer and delivery of the
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Offered Certificates to the Underwriters, including any transfer or other taxes payable thereon, (viii) the upfront costs and charges of any custodian, transfer agent, registrar or depository (to the extent not otherwise payable under the PSA, and except to the extent that another party is obligated to pay such amounts pursuant to an agreement executed in connection with the issuance of the Certificates), (ix) the fees and expenses of the rating agencies incurred in connection with the issuance and sale of the Offered Certificates; and (x) all other costs and expenses incident to the performance of the obligations of the Depositor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in Section 7 hereof or as otherwise agreed to by the parties, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel.
(i) The Depositor shall obtain a letter from a nationally recognized certified public accounting firm (reasonably satisfactory to the Underwriters), satisfactory in form and substance to the Depositor and the Underwriters, to the effect that such accounting firm has performed certain specified procedures, all of which have been agreed to by the Depositor and the Underwriters, as a result of which it has determined that the information included in the Time of Sale Information and the Prospectus Supplement that such accounting firm has examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Depositor or the Underwriters to be material.
(j) The Depositor acknowledges and agrees that each Underwriter in providing investment banking services to the Depositor in connection with the offering, including in acting pursuant to the terms of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and the Depositor does not intend such Underwriter to act in any capacity other than independent contractor, including as a fiduciary or in any other position of higher trust.
(k) The Depositor will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus or any materials used in a Road Show (as defined in Rule 433 of the 1933 Act) that are required to be retained by the Depositor pursuant to the 1933 Act, to the extent not filed with the Commission in accordance with Rule 433 under the 1933 Act.
6. Conditions of Underwriters’ Obligations.
Each Underwriter’s obligation to purchase the Offered Certificates allocated to it as set forth on Schedule I hereto shall be subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Depositor and BANA contained herein as of the date hereof and as of the Closing Date, to the accuracy of the representations and warranties on the part of the Depositor contained in the PSA as of the Closing Date, to the accuracy of the statements of the Depositor and BANA made in any certificates pursuant to the provisions hereof, to the performance by the Depositor and BANA of their respective obligations hereunder (including, without limitation, timely compliance with all obligations thereof relating to Rules 15Ga-2 and 17g-5 under the 1934 Act) and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the Depositor’s
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knowledge, threatened by the Commission and the Prospectus Supplement and each Free Writing Prospectus required to be filed by the Depositor pursuant to Section 4 hereof shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the 1933 Act, as applicable.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to the Depositor, in form and substance satisfactory to such Underwriter.
(ii) One or more letters of counsel to the Depositor, relating to the Time of Sale Information as of the Time of Sale and as to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to such Underwriter.
(iii) An opinion, dated the Closing Date, of in-house counsel to the Depositor, in form and substance satisfactory to such Underwriter.
(iv) One or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the Date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to such Underwriter.
Such opinion(s) may express its (their) reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, the parties to this Agreement, the MLPAs and the PSA and on certificates furnished by public officials. Such opinion(s) may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the party on behalf of which such opinion is being rendered. Such opinion(s) may be qualified as an opinion only on the General Corporation Law of the State of Delaware, the laws of the State of New York and the federal law of the United States.
(c) The PSA, the MLPAs, the respective indemnification agreements between the Depositor, the Underwriters and, as applicable, each Mortgage Loan Seller and each Transaction Party, respectively, and all of the other agreements identified in such agreements shall have been duly entered into by all respective parties.
(d) The Depositor shall have delivered to each Underwriter a certificate, dated the Closing Date, and signed by the managing director, director, a senior vice president or a vice president of the Depositor, to the effect that the signer of such certificate has examined, or has relied upon an examination conducted by appropriate persons authorized by him or her of, the Agreement, the Prospectus, the PSA, the MLPAs and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in this Agreement and the PSA are true and correct in all material respects;
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(ii) the Depositor has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no material adverse change in the financial condition of the Depositor;
(iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; and
(v) nothing has come to his/her attention that would lead him/her to believe that the Time of Sale Information, as of the Time of Sale, or the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not misleading.
(e) Each Mortgage Loan Seller shall have delivered to each Underwriter a certificate, dated the Closing Date, of the president, a senior or executive vice president or other vice president on its behalf (or other comparable officer in the case of a Mortgage Loan Seller that is not a corporation), to the effect that the signer of such certificate has examined, or has relied upon an examination conducted by appropriate persons authorized by him or her of, the Time of Sale Information, the Prospectus Supplement, the PSA, its respective MLPA, and various other closing documents, and that, to the best of his or her knowledge:
(i) the representations and warranties of the Mortgage Loan Seller in the respective MLPA are true and correct in all material respects except as indicated on Schedule 2-A thereto;
(ii) the Mortgage Loan Seller has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the respective MLPA at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been no material adverse change in the financial condition of the Mortgage Loan Seller.
(f) BANA shall have delivered to the Underwriters a certificate, dated the Closing Date, of the managing director, director, a senior or executive vice president or other vice president on behalf of BANA to the effect that the signer of such certificate has examined, or has relied upon an examination conducted by appropriate persons authorized by him or her of, this Agreement and various other closing documents, and that, to the best of his or her knowledge:
(i) the representations and warranties of BANA in this Agreement are true and correct in all material respects;
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(ii) BANA has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been no material adverse change in the financial condition of BANA.
(g) The Depositor and each Underwriter shall have received from a nationally recognized certified public accounting firm (reasonably satisfactory to the Underwriters), the letter specified in Section 5(i) hereof, dated as of the date hereof and the Closing Date, in form and substance satisfactory to such Underwriter, stating in effect, at a minimum, that:
(i) it has performed certain specified procedures as a result of which it has determined that certain information of an accounting, financial or statistical nature set forth in the Time of Sale Information and the Prospectus Supplement, respectively, agrees with the data sheet or computer tape prepared by or on behalf of each Mortgage Loan Seller, unless otherwise noted in such letter; and
(ii) it has compared the data contained in the data sheet or computer tape of the Mortgage Loan Sellers referred to in the immediately preceding clause (i) to information contained in the Mortgage Files of the Mortgage Loan Sellers and in such other sources as shall be specified by them, and found such data and information to be in agreement, unless otherwise noted in such letter.
(h) RESERVED.
(i) Each Underwriter shall have received, from counsel to each of the Transaction Parties, (i) its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters, and (ii) its letter relating to the Time of Sale Information, as of the Time of Sale, and to the Prospectus Supplement, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(j) The Underwriters shall have received from counsel to each Mortgage Loan Seller (i) its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters, including an opinion that certain disclosure relating to such parties is appropriately responsive in all material respects with the applicable requirements of Regulation AB, and (ii) its letter relating to the Time of Sale Information, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(k) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business, operations, financial condition, properties or assets of the Depositor or a Mortgage Loan Seller (including any of the Mortgage Loans) which such Underwriter concludes, in the reasonable judgment of such Underwriter, would have a material adverse effect on (i) the investment quality of the Offered Certificates, so as to make it impractical or inadvisable to proceed with the public
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offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information (excluding the Corrective Information) and the Prospectus, or (ii) the ability of the Depositor to perform its obligations under this Agreement, any MLPA or the PSA.
(l) The Offered Certificates shall have been assigned ratings by the Rating Agencies no less than those set forth in the Time of Sale Information and such ratings shall not have been withdrawn, suspended or qualified.
(m) The Underwriters shall have received copies of any opinions of counsel to the Depositor supplied to the Rating Agencies relating to certain matters with respect to the Offered Certificates. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters addressed to the Underwriters.
(n) The Depositor shall have furnished to the Underwriters and their counsel such further opinions, information, certificates and documents as the Underwriters may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Underwriters and their counsel.
7. Indemnification.
(a) The Depositor and BANA, jointly and severally, shall indemnify and hold harmless each Underwriter (severally and not jointly), its directors and officers and each person, if any, who controls such Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all expenses, losses, claims, actions, damages and other liabilities (including without limitation any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, action, damage or other liability) (the “Liabilities”) as incurred, joint or several, to which any such indemnified party may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading; or
(ii) any untrue statement or alleged untrue statement of any material fact contained in the Prospectus (including the Loan Detail and any Diskette (each as defined below)) or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading;
(iii) any untrue statement or alleged untrue statement of a material fact contained in (x) any Issuer Free Writing Prospectus (including any draft of the PSA made available to one or more prospective investors (the “Draft PSA”)) or (y) any Issuer Information or information concerning the Mortgage Loans provided to the Underwriters by the Depositor contained in (1) any Underwriter Free Writing Prospectus, or (2) any Free Writing Prospectus that is required to be filed pursuant to Section 4(v)(C),
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Section 4(v)(D) or Section 4(viii) hereof (the items described in clauses (x) and (y) collectively, the “Issuer Disclosure Materials”), or the omission or alleged omission to state a material fact necessary to make the statements therein (when read in conjunction with the other Time of Sale Information and any Draft PSA conveyed to the subject investor), in the light of the circumstances under which they were made, not misleading, which untrue statement or omission referred to above in this clause (iii) was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to any Underwriter within a reasonable period of time prior to the Time of Sale (but not less than one (1) Business Day so that a Corrected Free Writing Prospectus could have been provided (electronically or otherwise)), or
(iv) any breach of the representation and warranty in Section 1(a)(xxv), Section 1(a)(xxvi) or Section 1(b)(iv) hereof;
provided that in the case of clauses (i), (ii) and (iii) above, insofar as the Liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission with respect to any Underwriter Information, neither the Depositor nor BANA shall have any obligation to so indemnify and hold harmless; and provided, further, that neither the Depositor nor BANA shall have any obligation to so indemnify and hold harmless to the extent that the Liabilities arise out of or are based upon an untrue statement or omission or an alleged untrue statement or omission with respect to the Mortgage Loan Seller Information or Transaction Party Information. This indemnity agreement will be in addition to any liability that the Depositor and/or BANA may otherwise have. “Loan Detail” shall mean the information set forth in Appendix I and Appendix II to the Prospectus Supplement. “Diskette” shall mean the information set forth on any DVD, CD-ROM or diskette attached to the Prospectus.
(b) Each Underwriter shall, severally and not jointly, indemnify and hold harmless the Depositor, its directors and its officers who signed the Registration Statement and each person, if any, who controls the Depositor within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all Liabilities as incurred, but only with respect to Liabilities caused by any (i) untrue statement or alleged untrue statement of a material fact regarding such Underwriter in the Underwriter Information, or omission or alleged omission to state a material fact necessary to make the statements therein regarding such Underwriter, in the light of the circumstances under which they were made, not misleading, which untrue statement or omission was not corrected by subsequent Underwriter Information supplied to the Depositor by such Underwriter prior to the Time of Sale to the applicable investor of Offered Certificates, or (ii) untrue statement or alleged untrue statement of a material fact in any Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter, or omission or alleged omission to state in such Underwriter Free Writing Prospectus a material fact necessary in order to make the statements therein (when read in conjunction with the Time of Sale Information), in the light of the circumstances under which they were made, not misleading, which untrue statement or omission was not corrected by a subsequent Underwriter Free Writing Prospectus supplied to the Depositor by such Underwriter prior to the Time of Sale to the applicable investor of Offered Certificates; provided that no Underwriter shall be obligated to so indemnify and hold harmless to the extent such Liabilities arise out of or are based upon (A) an untrue statement or alleged untrue statement or omission or alleged omission contained in or made in reliance on and in conformity with any Issuer Information, Mortgage Loan Seller
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Information or Transaction Party Information, which was not corrected by Corrective Information subsequently supplied by the Depositor or the applicable Mortgage Loan Seller to any Underwriter within a reasonable period of time prior to the Time of Sale, or (B) information that is also contained in the Time of Sale Information, or (C) any errors in the mathematical calculations reflected in such Free Writing Prospectus to the extent such errors arise out of or are based upon errors in such Issuer Information, Mortgage Loan Seller Information or Transaction Party Information. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have.
(c) Each Underwriter (the “Indemnifying Underwriter”) shall indemnify and hold harmless the other Underwriters, their respective officers and directors, and each person, if any, who controls either such other Underwriter within the meaning of either the 1933 Act or the 1934 Act (each such other Underwriter and its related officers, directors and controlling persons, collectively, a “Non-Indemnifying Underwriter”) from and against any and all Liabilities, joint or several, to which any such Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934 Act or otherwise, insofar as such Liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact regarding the Indemnifying Underwriter contained in the Underwriter Information, or the omission or alleged omission to state a material fact necessary in order to make the statements regarding the Indemnifying Underwriter contained in the Underwriter Information, in the light of the circumstances under which they were made, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact, or the omission or alleged omission (when read in conjunction with the Time of Sale Information) to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading at the Time of Sale, contained in any Underwriter Free Writing Prospectus or any other Free Writing Prospectus described in Sections 4(vii) or (viii) hereof, in each case that was prepared (or, if not prepared by any Underwriter, was used, authorized or approved) by or on behalf of the Indemnifying Underwriter(s), or (iii) the failure of such Indemnifying Underwriter, or any member of its selling group, to comply with any provision of Sections 4 or 9 hereof, and agrees to reimburse any such Non-Indemnifying Underwriter, as incurred for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided that the Indemnifying Underwriter(s) shall not be liable under this subsection (c) to any Non-Indemnifying Underwriter in respect thereof to the extent that the Non-Indemnifying Underwriter is entitled to indemnification or contribution for the subject loss, claim, damage, liability cost or expense (i) from another party pursuant to any separate indemnification agreement entered into by a Mortgage Loan Seller or a Transaction Party in favor of such Underwriter, or (ii) from the Depositor hereunder. No Underwriter shall be liable to another Underwriter or any officer, director or controlling person with respect to such other Underwriter under this Section 7(c) for any losses, liabilities, claims or damages arising out of an untrue statement or alleged untrue statement or omission or alleged omission in any such document prepared by such other Underwriter. This agreement will be in addition to any liability that any Underwriter may otherwise have.
(d) Each indemnified party shall give notice in writing as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than under
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subsection (a), (b) or (c) of this Section 7. Upon request of the indemnified party, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding as incurred. If any action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party may participate at its own expense in the defense of any such action. The indemnifying party may elect to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, or (iv) the indemnifying party shall have failed to designate within a reasonable period of time counsel reasonably satisfactory to the indemnified party (in which case the fees and expenses shall be paid as incurred by the indemnifying party). In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, and all such fees and expenses shall be reimbursed as they are incurred. An indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld. However, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel for which the indemnifying party is obligated under this subsection, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request, and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. If an indemnifying party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the indemnified party or, if such settlement provides for an unconditional release of the indemnified party, in form and substance satisfactory to such indemnified party, and without any admission of fault, culpability or failure to act or on behalf of the indemnified party, from all liability on claims that are the subject matter of such proceeding, without the consent of the indemnified party.
(e) If the indemnification provided for in subsection (a), (b) or (c) of this Section 7 is applicable in accordance with its terms with respect to one or more indemnifying parties, but is for any reason unavailable or insufficient to hold harmless an indemnified party under such subsection (a), (b) or (c) above, then in order to provide for just and equitable
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contribution, each such indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the Liabilities referred to in such subsection (a), (b) or (c) above in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other from the offering of the Offered Certificates or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other in connection with the untrue statements or omissions or alleged untrue statements or omissions that resulted in such Liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Depositor on the one hand and an Underwriter on the other shall be deemed to be in the same proportion as the total proceeds from the issuance and sale of the Offered Certificates under this Agreement (before deducting expenses) received by the Depositor bear to the total underwriting discounts, commissions or other fees received by such Underwriter. The relative benefits received by an Underwriter on the one hand and another Underwriter on the other shall be deemed to be in the same proportion as the total underwriting discounts, commissions or other fees received by the first such Underwriter bear to the total underwriting discounts, commissions or other fees received by the other such Underwriter. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand, or the indemnified party on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission.
(f) The parties hereto agree that it would not be just and equitable if contribution were determined by pro rata allocation or by any other method of allocation that does not take account of the considerations referred to in subsection (e) above. The amount paid or payable by an indemnified party as a result of the Liabilities referred to in this Section 7 shall be deemed to include any legal fees and disbursements or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such claim, subject to the limitations provided in subsection (e) above. If any expenses so paid by the indemnifying party are subsequently determined to not be required to be borne by the indemnifying party hereunder, the party which received such payment shall promptly refund the amount so paid to the party which made such payment. Notwithstanding the provisions of subsection (e) above or this subsection (f), no Underwriter shall be required to contribute or deemed to contribute any amount in excess of the amount by which (i) the total underwriting discounts and commissions and other fees received by such Underwriter in connection with the offering of the Offered Certificates exceeds (ii) the amount of damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this calculation, the fees payable to Drexel Hamilton, LLC shall be deemed to be $50,000. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this subsection (f), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this subsection (f).
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(g) No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
(h) The indemnity and contribution agreements contained in this Section 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Depositor, an Underwriter, any of their respective directors or officers, or any person controlling the Depositor or such Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (iii) acceptance of and payment for any of the Offered Certificates.
(i) The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective amount of Offered Certificates they have purchased hereunder, and not joint.
8. Certain Provisions to Survive Delivery.
The respective indemnities, agreements, representations, warranties and other statements of the Depositor, BANA and the Underwriters as set forth in this Agreement shall remain in full force and effect, regardless of any investigations (or any statements as to the results thereof) made in connection with the issuance of Certificates by or on behalf of the Underwriters or any officer or director or controlling person of an Underwriter, or the Depositor or BANA, or any officer, director or controlling person of the Depositor or BANA and shall survive delivery of and payment for the Certificates. The provisions of Sections 5(h), 7 and 10(c) hereof shall survive the termination or cancellation of this Agreement.
9. Defaulting Underwriter.
(a) If, on the Closing Date, any of the Underwriters shall fail or refuse to purchase Offered Certificates that it has agreed to purchase hereunder on such date, and the aggregate principal amount of Offered Certificates which such defaulting Underwriter agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of Offered Certificates to be purchased on such date, each other Underwriter shall be obligated to purchase a pro rata portion (based on the allocation set forth on Schedule I) of the Offered Certificates which such defaulting Underwriter agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Offered Certificates that any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such principal amount of Offered Certificates, without the written consent of such Underwriter, and provided, further, that no Underwriter shall be obligated under this Section 9 to purchase Offered Certificates of a Class that it is not otherwise obligated to purchase under this Agreement.
(b) If, on the Closing Date, one of the Underwriters shall fail or refuse to purchase Offered Certificates that it has agreed to purchase hereunder on such date and the aggregate principal amount of Offered Certificates with respect to which such default occurs is
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more than one-tenth of the aggregate principal amount of Offered Certificates to be purchased on such date and arrangements satisfactory to the non-defaulting Underwriters and the Depositor for the purchase of such Offered Certificates are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or of the Depositor. In any such case any such non-defaulting Underwriter or the Depositor shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Prospectus or in any other documents or arrangements may be effected. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
10. Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this Agreement, by notice to the Depositor, at any time at or prior to the Closing Date if the sale of the Offered Certificates provided for herein is not consummated because of any failure or refusal on the part of the Depositor to comply in all material respects with the terms, or to fulfill in all material respects any of the conditions of, this Agreement (including if any of the opinions and certificates mentioned in Section 6 hereof or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters), or if for any reason the Depositor shall be unable to perform in all material respects its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase the Offered Certificates shall be terminable by the Underwriters, in the absolute discretion of the Underwriters, by notice given to the Depositor and BANA, if at any time on or prior to the delivery of and payment for the Offered Certificates (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Depositor or the Trust Fund which, in the judgment of the Underwriters, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Certificates, (ii) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, or the over-the-counter market, or minimum prices shall have been established on any such exchange, (iii) trading of any securities of the Depositor or its affiliates shall have been suspended on any exchange or in any over-the-counter market, (iv) any downgrading in the intended rating of any of the Offered Certificates by any Rating Agency shall have occurred, or any such ratings shall have been withdrawn, suspended or qualified, (v) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or State of New York authorities, or (vi) there shall have occurred any attack, outbreak or escalation of hostilities or any act of terrorism, or any change in financial markets or any calamity or crisis, or any major disruption of settlement or clearance of securities in the United States that, in the judgment of such Underwriter, is material and adverse and, in the case of any of the events specified in the immediately preceding clauses (i) through (vi), such event singly or together with any other such event, makes it, in the judgment of the Underwriters, impracticable to market
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the Offered Certificates on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) If any Underwriter terminates its obligations under this Agreement in accordance with Section 10(a), the Depositor shall reimburse such Underwriter upon demand for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been reasonably incurred by such Underwriter in connection with the proposed purchase and sale of the Offered Certificates.
11. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed duly given if delivered by courier, with appropriate confirmation of receipt, as follows: if to (i) the Depositor, shall be directed to Banc of America Merrill Lynch Commercial Mortgage Inc., One Bryant Park, New York, New York 10036, Attention: Director of CMBS Securitizations, with a copy to W. Todd Stillerman, Assistant General Counsel, Bank of America Merrill Lynch Legal Department, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255; (ii) Merrill Lynch, Pierce, Fenner & Smith Incorporated, shall be directed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036, Attention: Director of CMBS Securitizations, with a copy to W. Todd Stillerman, Assistant General Counsel, Bank of America Merrill Lynch Legal Department, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255; (iii) if to UBS Securities LLC, shall be directed to UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: David Schell, Email: david.schell@ubs.com, Facsimile: (212) 821-2943, with a copy to Henry Chung, Email: henry.chung@ubs.com, Facsimile: (212) 821-2943, and with a copy to UBS Securities LLC, 153 West 51st Street, New York, New York 10019, Chad Eisenberger, Esq., Legal Department, Email: chad.eisenberger@ubs.com; and (iv) if to Drexel Hamilton, LLC, shall be directed to Drexel Hamilton, LLC, 77 Water Street, New York, New York 10005, Attention: John D. Kerin, Director of Debt Syndicate, or, in the case of any such party, shall be directed to such other address as may hereafter be furnished by such party to the others in writing.
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Depositor and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person or entity, other than the Underwriters and the Depositor and their respective successors and the controlling persons and officers and directors referred to in Section 7 and their respective successors, heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Depositor and their respective successors, and said controlling persons and officers and directors and their respective successors, heirs and legal representatives, and for the benefit of no other person or entity. No purchaser of Offered Certificates from the Underwriters shall be deemed to be a successor by reason merely of such purchase.
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13. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
14. Entire Agreement.
This Agreement represents the entire agreement between the Depositor, on the one hand, and the Underwriters, on the other, with respect to the preparation of the Prospectus, and the conduct of the offering, and the purchase and sale of the Offered Certificates. This Agreement supersedes all prior or contemporaneous agreements and understandings between the parties hereto relating to the subject matter hereof.
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15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.
16. Amendment.
Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated except by a writing signed by the party against whom enforcement of such amendment, waiver, discharge or termination is sought.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Depositor a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters, BANA and the Depositor in accordance with its terms.
Very truly yours, | |||
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. | |||
By: | /s/ Leland F. Bunch, III | ||
Name: | Leland F. Bunch, III | ||
Title: | Senior Vice President | ||
BANK OF AMERICA, NATIONAL ASSOCIATION | |||
By: | /s/ Leland F. Bunch, III | ||
Name: | Leland F. Bunch, III | ||
Title: | Managing Director |
BACM 2015-UBS7 - Underwriting Agreement |
CONFIRMED
AND ACCEPTED, as of the date first above written: | |||
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | |||
By: | /s/ Leland F. Bunch, III | ||
Name: | Leland F. Bunch, III | ||
Title: | Managing Director |
One
Bryant Park
New York, New York 10036
UBS SECURITIES LLC | |||
By: | /s/ Nicholas Galeone | ||
Name: | Nicholas Galeone | ||
Title: | Executive Director |
By: | /s/ David Schell | ||
Name: | David Schell | ||
Title: | Executive Director |
1285
Avenue of the Americas
New York, New York 10019
DREXEL HAMILTON, LLC | |||
By: | /s/ Arion K. Williams | ||
Name: | Arion K. Williams | ||
Title: | Director |
77
Water Street
New York, New York 10005
BACM 2015-UBS7 - Underwriting Agreement |
ANNEX A
FIRST PAGE OF THE TRANSACTION FWP
The information in this free writing prospectus may be amended and/or supplemented prior to the time of sale. The information in this free writing prospectus supersedes any contrary information contained in any prior free writing prospectus relating to the subject securities and will be superseded by any contrary information contained in any subsequent free writing prospectus prior to the time of sale. In addition, certain information regarding the subject securities is not yet available and, accordingly, has not been included in this free writing prospectus.
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including a prospectus) with the SEC (File Number 333-201743) for the offering to which this free writing prospectus relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting EDGAR on the SEC website at http://www.sec.gov. Alternatively, the depositor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll free 1-800-294-1322 or by email to dg.Prospectus_Requests@baml.com.
This free writing prospectus does not contain all information that is required to be included in the prospectus and the prospectus supplement.
THIS FREE WRITING PROSPECTUS DATED SEPTEMBER 8, 2015 MAY BE AMENDED OR SUPPLEMENTED PRIOR TO THE TIME OF SALE
$703,324,000 (Approximate)
Banc of America Merrill Lynch Commercial Mortgage Inc.
Depositor
UBS Real Estate Securities Inc.
Bank of America, National Association
Sponsors and Mortgage Loan Sellers
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Issuing Entity
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7
Consider carefully the risk factors beginning on page S-57 in this free writing prospectus and page 9 in the attached prospectus. | ||
Neither the certificates nor the underlying mortgage loans are insured or guaranteed by any governmental agency. | ||
The certificates will represent interests only in the issuing entity and will not represent interests in or obligations of the depositor, Bank of America, National Association, or any of their affiliates, including Bank of America Corporation. |
The Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 will consist of the following classes:
• | senior certificates consisting of the Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class X-E, Class X-FG and Class X-NR certificates; |
• | subordinate certificates consisting of the Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H certificates; |
• | the Class V certificates representing the right to receive certain payments of excess interest received with respect to mortgage loans having anticipated repayment dates; and |
• | the residual certificates consisting of the Class R certificates. |
Only the Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D certificates are offered hereby.
Distributions on the offered certificates will occur monthly, commencing in October 2015, to the extent of available funds, as described in this free writing prospectus under “Description of the Offered Certificates—Distributions.” The mortgage loans constitute the sole source of repayment on the offered certificates.
The issuing entity’s assets will consist primarily of forty-two (42) fixed rate mortgage loans and other property described in this free writing prospectus and the attached prospectus. The mortgage loans are secured by first liens on fifty-seven (57) commercial, multifamily and manufactured housing community properties. This free writing prospectus more fully describes the offered certificates, as well as the characteristics of the mortgage loans and the related mortgaged properties. The only credit support for any class of offered certificates will be provided by the subordination of the class(es), if any, that have a lower payment priority as described in this free writing prospectus under “Description of the Offered Certificates—Distributions—Subordination; Allocation of Collateral Support Deficit.”
Certain characteristics of the offered certificates include:
Class | Expected
Ratings ([REDACTED]) |
Approximate
Initial Certificate Principal Balance or Notional Amount |
Approximate
Initial Pass-Through Rate |
Pass-Through Rate Description |
Expected Final Distribution Date | Rated Final Distribution Date | ||
Class A-1 | [REDACTED] | $ | 38,700,000 | % | September 2020 | September 2048 | ||
Class A-SB | [REDACTED] | $ | 62,400,000 | % | June 2025 | September 2048 | ||
Class A-3 | [REDACTED] | $ | 200,000,000 | % | August 2025 | September 2048 | ||
Class A-4 | [REDACTED] | $ | 228,996,000 | % | September 2025 | September 2048 | ||
Class X-A | [REDACTED] | $ | 530,096,000 | % | Variable | September 2025 | September 2048 | |
Class X-B | [REDACTED] | $ | 50,170,000 | % | Variable | September 2025 | September 2048 | |
Class X-D | [REDACTED] | $ | 39,879,000 | % | Variable | September 2025 | September 2048 | |
Class A-S | [REDACTED] | $ | 50,170,000 | % | September 2025 | September 2048 | ||
Class B | [REDACTED] | $ | 50,169,000 | % | September 2025 | September 2048 | ||
Class C | [REDACTED] | $ | 33,010,000 | % | September 2025 | September 2048 | ||
Class D | [REDACTED] | $ | 39,879,000 | % | September 2025 | September 2048 |
(Explanatory notes to this table start on page S-1)
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these offered securities or determined if this free writing prospectus or the attached prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, the underwriters, will purchase the certificates offered to you from Banc of America Merrill Lynch Commercial Mortgage Inc. and will offer them to the public in one or more negotiated transactions, or otherwise, at varying prices determined at the time of sale. The offered certificates are offered by the underwriters when, as and if issued by the issuing entity and delivered to and accepted by the underwriters and subject to their right to reject orders in whole or in part. The underwriters expect to deliver the offered certificates to purchasers on or about September 24, 2015.
BofA Merrill Lynch | UBS Securities LLC | |
Drexel Hamilton | ||
September , 2015 |
ANNEX B
FIRST
PAGE OF THE STRUCTURAL AND COLLATERAL TERM SHEET FWP
September 8, 2015
FREE WRITING PROSPECTUS
STRUCTURAL AND COLLATERAL TERM SHEET
$757,280,331
(Approximate Total Mortgage Pool Balance)
$703,324,000
(Approximate Offered Certificates)
BACM 2015-UBS7 |
Banc of America Merrill Lynch Commercial Mortgage Inc.
Depositor
UBS Real Estate Securities Inc.
Bank of America, National Association
Sponsors and Mortgage Loan Sellers
BofA Merrill Lynch | UBS Securities LLC | |
Joint Bookrunning Managers and Co-Lead Managers | ||
Drexel Hamilton | ||
Co-Manager |
The depositor has filed a registration statement (including the prospectus) with the SEC (File No. 333-201743) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC or any other underwriter, or any dealer participating in this offering will arrange to send you the prospectus if you request it by calling toll-free 1-800-294-1322 or by email to the following address: dg.Prospectus_Requests@baml.com. The offered certificates referred to in these materials, and the asset pool backing them, are subject to modification or revision (including the possibility that one or more classes of certificates may be split, combined or eliminated at any time prior to issuance or availability of a final prospectus) and are offered on a “when, as and if issued” basis. You understand that, when you are considering the purchase of these certificates, a contract of sale will come into being no sooner than the date on which the relevant class has been priced and we have verified the allocation of certificates to be made to you; any “indications of interest” expressed by you, and any “soft circles” generated by us, will not create binding contractual obligations for you or us.
SCHEDULE I
Underwriting Agreement, dated as of September 14, 2015
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D
Underwriters | Amount
of Offered Certificates to be Purchased |
Class
of Offered Certificates to be Purchased |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $38,700,000 | A-1 |
UBS Securities LLC | $0 | A-1 |
Drexel Hamilton, LLC | $0 | A-1 |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $62,400,000 | A-SB |
UBS Securities LLC | $0 | A-SB |
Drexel Hamilton, LLC | $0 | A-SB |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $200,000,000 | A-3 |
UBS Securities LLC | $0 | A-3 |
Drexel Hamilton, LLC | $0 | A-3 |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $228,996,000 | A-4 |
UBS Securities LLC | $0 | A-4 |
Drexel Hamilton, LLC | $0 | A-4 |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $530,096,000 | X-A |
UBS Securities LLC | $0 | X-A |
Drexel Hamilton, LLC | $0 | X-A |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $50,170,000 | X-B |
UBS Securities LLC | $0 | X-B |
Drexel Hamilton, LLC | $0 | X-B |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $39,879,000 | X-D |
UBS Securities LLC | $0 | X-D |
Drexel Hamilton, LLC | $0 | X-D |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $50,170,000 | A-S |
UBS Securities LLC | $0 | A-S |
Drexel Hamilton, LLC | $0 | A-S |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $50,169,000 | B |
UBS Securities LLC | $0 | B |
Drexel Hamilton, LLC | $0 | B |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $33,010,000 | C |
UBS Securities LLC | $0 | C |
Drexel Hamilton, LLC | $0 | C |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | $39,879,000 | D |
UBS Securities LLC | $0 | D |
Drexel Hamilton, LLC | $0 | D |
SCHEDULE I (CONTINUED)
Class Designation |
Initial
Aggregate Principal Amount or Notional Amount of Class(1) |
Approximate
Initial Pass-Through Rate(2) |
Purchase Price(3) |
A-1 | $38,700,000 | 1.608% | 99.99993% |
A-SB | $62,400,000 | 3.429% | 102.99878% |
A-3 | $200,000,000 | 3.441% | 100.99314% |
A-4 | $228,996,000 | 3.705% | 102.99254% |
X-A | $530,096,000 | 0.946% | 6.58137% |
X-B | $50,170,000 | 0.377% | 3.48656% |
X-D | $39,879,000 | 1.199% | 9.51563% |
A-S | $50,170,000 | 3.989% | 102.99268% |
B | $50,169,000 | 4.366% | 102.46214% |
C | $33,010,000 | 4.366% | 96.17991% |
D | $39,879,000 | 3.167% | 75.45114% |
(1) | Subject to a variance of plus or minus 5.0%. |
(2) | Rate per annum. |
(3) | Expressed as a percentage of the aggregate principal amount or notional amount, as applicable, of the relevant class of Offered Certificates to be purchased. The purchase price for each class of the Offered Certificates shown is net of accrued interest. The purchase price to be paid will include accrued interest at the initial Pass-Through Rate therefor on the aggregate principal amount or notional amount, as applicable, thereof to be purchased from the Cut-off Date to but not including the Closing Date. The purchase price does not reflect any underwriting discount. |
Exhibit 4.1
Execution Version
BANC OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE INC.
as Depositor,
MIDLAND LOAN SERVICES, A DIVISION OF
PNC BANK,
NATIONAL ASSOCIATION,
as Master Servicer,
LNR PARTNERS, LLC,
as Special Servicer,
PENTALPHA SURVEILLANCE LLC,
as Trust Advisor,
U.S.
BANK NATIONAL ASSOCIATION,
as Trustee, Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2015
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-UBS7
TABLE OF CONTENTS
Page | |||||
ARTICLE I DEFINITIONS; CALCULATIONS AND CERTAIN OTHER MATTERS | 5 | ||||
Section 1.1 | Definitions | 5 | |||
Section 1.2 | Calculations Respecting Mortgage Loans | 113 | |||
Section 1.3 | Calculations Respecting Accrued Interest | 116 | |||
Section 1.4 | Interpretation | 116 | |||
Section 1.5 | ARD Loans | 117 | |||
Section 1.6 | Certain Matters with Respect to Loan Pairs, A/B Whole Loans and Non-Serviced Loan Combinations | 118 | |||
Section 1.7 | Rating Agency Confirmations | 123 | |||
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES | 125 | ||||
Section 2.1 | Conveyance of Mortgage Loans | 125 | |||
Section 2.2 | Acceptance by Trustee | 129 | |||
Section 2.3 | Sellers’ Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties | 132 | |||
Section 2.4 | Representations and Warranties | 140 | |||
Section 2.5 | Conveyance of Interests | 141 | |||
Section 2.6 | Certain Matters Relating to Non-Serviced Mortgage Loans | 141 | |||
ARTICLE III THE CERTIFICATES | 142 | ||||
Section 3.1 | The Certificates | 142 | |||
Section 3.2 | Registration | 143 | |||
Section 3.3 | Transfer and Exchange of Certificates | 143 | |||
Section 3.4 | Mutilated, Destroyed, Lost or Stolen Certificates | 149 | |||
Section 3.5 | Persons Deemed Owners | 150 | |||
Section 3.6 | Access to List of Certificateholders’ Names and Addresses | 150 | |||
Section 3.7 | Book-Entry Certificates | 151 | |||
Section 3.8 | Notices to Clearing Agency | 154 | |||
Section 3.9 | Definitive Certificates | 154 | |||
ARTICLE IV ADVANCES | 156 | ||||
Section 4.1 | P&I Advances by Master Servicer | 156 | |||
Section 4.1A | P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans | 157 | |||
Section 4.2 | Servicing Advances | 158 | |||
Section 4.3 | Advances by the Trustee | 159 | |||
Section 4.4 | Evidence of Nonrecoverability | 160 |
-i- |
Section 4.5 | Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan | 161 | |||
Section 4.6 | Reimbursement of Advances and Advance Interest | 162 | |||
ARTICLE V ADMINISTRATION OF THE TRUST | 164 | ||||
Section 5.1 | Collections | 164 | |||
Section 5.2 | Withdrawals of Funds in the Collection Account | 167 | |||
Section 5.3 | Distribution Account and Reserve Accounts | 177 | |||
Section 5.4 | Certificate Administrator Reports | 179 | |||
Section 5.5 | Certificate Administrator Tax Reports | 188 | |||
Section 5.6 | Access to Certain Information | 189 | |||
Section 5.7 | Exchange Act Rule 17g-5 Procedures | 191 | |||
ARTICLE VI DISTRIBUTIONS | 197 | ||||
Section 6.1 | Distributions Generally | 197 | |||
Section 6.2 | Compliance with Withholding Requirements | 198 | |||
Section 6.3 | REMIC I | 199 | |||
Section 6.4 | REMIC II | 199 | |||
Section 6.5 | REMIC III | 200 | |||
Section 6.6 | Allocation of Collateral Support Deficits | 206 | |||
Section 6.7 | Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls | 207 | |||
Section 6.8 | Adjustment of Master Servicing Fees | 207 | |||
Section 6.9 | Appraisal Reductions | 207 | |||
Section 6.10 | Prepayment Premiums | 211 | |||
Section 6.11 | Allocation of Trust Advisor Expenses | 213 | |||
ARTICLE VII CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR | 215 | ||||
Section 7.1 | Duties of the Trustee, the Custodian and the Certificate Administrator | 215 | |||
Section 7.2 | Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator | 217 | |||
Section 7.3 | The Trustee, the Custodian and the Certificate Administrator Not Liable for Certificates or Interests or Mortgage Loans | 221 | |||
Section 7.4 | The Trustee, the Custodian and the Certificate Administrator May Own Certificates | 222 | |||
Section 7.5 | Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator | 222 | |||
Section 7.6 | Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator | 224 | |||
Section 7.7 | Successor Trustee, Custodian or Certificate Administrator | 227 | |||
Section 7.8 | Merger or Consolidation of Trustee, Custodian or Certificate Administrator | 228 |
-ii- |
Section 7.9 | Appointment of Co-Trustee, Separate Trustee, Agents or Custodian | 229 | |||
Section 7.10 | Authenticating Agents | 231 | |||
Section 7.11 | Indemnification of Trustee, the Custodian and the Certificate Administrator | 232 | |||
Section 7.12 | Fees and Expenses of Trustee, the Custodian and the Certificate Administrator | 234 | |||
Section 7.13 | Collection of Moneys | 235 | |||
Section 7.14 | Trustee To Act; Appointment of Successor | 235 | |||
Section 7.15 | Notification to Holders | 237 | |||
Section 7.16 | Representations and Warranties of the Trustee, the Custodian and the Certificate Administrator | 238 | |||
Section 7.17 | Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee, the Custodian and the Certificate Administrator | 241 | |||
Section 7.18 | Capacities | 241 | |||
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS | 241 | ||||
Section 8.1 | Servicing Standard; Servicing Duties | 241 | |||
Section 8.2 | Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer | 244 | |||
Section 8.3 | Master Servicer’s General Power and Duties | 244 | |||
Section 8.4 | Sub-Servicing | 252 | |||
Section 8.5 | Master Servicer May Own Certificates | 254 | |||
Section 8.6 | Maintenance of Hazard Insurance, Other Insurance, Taxes and Other | 254 | |||
Section 8.7 | Enforcement of Due-on-Sale Clauses; Assumption Agreements; Due-on-Encumbrance Clause | 257 | |||
Section 8.8 | Custodian to Cooperate; Release of Trust Mortgage Files | 261 | |||
Section 8.9 | Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for the Benefit of the Certificateholders | 262 | |||
Section 8.10 | Servicing Compensation | 262 | |||
Section 8.11 | Master Servicer Reports; Account Statements | 266 | |||
Section 8.12 | Reserved | 268 | |||
Section 8.13 | Reserved | 268 | |||
Section 8.14 | CREFC® Operating Statement Analysis Reports Regarding the Mortgaged Properties | 268 | |||
Section 8.15 | Other Available Information and Certain Rights of the Master Servicer | 269 | |||
Section 8.16 | Rule 144A Information | 271 | |||
Section 8.17 | Inspections | 271 | |||
Section 8.18 | Modifications, Waivers, Amendments, Extensions and Consents | 272 | |||
Section 8.19 | Specially Serviced Mortgage Loans | 275 | |||
Section 8.20 | Representations, Warranties and Covenants of the Master Servicer | 276 | |||
Section 8.21 | Merger or Consolidation | 277 | |||
Section 8.22 | Resignation of Master Servicer | 278 | |||
Section 8.23 | Assignment or Delegation of Duties by Master Servicer | 279 | |||
Section 8.24 | Limitation on Liability of the Master Servicer and Others | 279 |
-iii- |
Section 8.25 | Indemnification; Third-Party Claims | 282 | |||
Section 8.26 | Loan Registry | 284 | |||
Section 8.27 | Compliance with REMIC Provisions and Grantor Trust Provisions | 284 | |||
Section 8.28 | Termination | 285 | |||
Section 8.29 | Procedure Upon Termination | 288 | |||
Section 8.30 | Certain Matters with Respect to Joint Mortgage Loans | 291 | |||
Section 8.31 | Delivery of Excluded Information to the Certificate Administrator | 295 | |||
ARTICLE IX | ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER | 296 | |||
Section 9.1 | Duties of Special Servicer | 296 | |||
Section 9.2 | Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer | 297 | |||
Section 9.3 | Special Servicer General Powers and Duties | 298 | |||
Section 9.4 | Sub-Servicers | 300 | |||
Section 9.5 | “Due-on-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans;Due-on-Encumbrance Clauses | 301 | |||
Section 9.6 | Custodian to Cooperate; Release of Mortgage Files | 305 | |||
Section 9.7 | Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee | 306 | |||
Section 9.8 | Representations, Warranties and Covenants of the Special Servicer | 307 | |||
Section 9.9 | Standard Hazard, Flood and Commercial General Liability Policies | 309 | |||
Section 9.10 | Presentment of Claims and Collection of Proceeds | 311 | |||
Section 9.11 | Compensation to the Special Servicer | 311 | |||
Section 9.12 | Realization Upon Defaulted Loans | 315 | |||
Section 9.13 | Foreclosure | 317 | |||
Section 9.14 | Operation of REO Property | 318 | |||
Section 9.15 | Sale of REO Property | 321 | |||
Section 9.16 | Realization on Collateral Security | 323 | |||
Section 9.17 | Sale of Defaulted Loans | 323 | |||
Section 9.18 | A/B Whole Loans | 327 | |||
Section 9.19 | Reserved | 327 | |||
Section 9.20 | Merger or Consolidation | 327 | |||
Section 9.21 | Resignation of Special Servicer | 328 | |||
Section 9.22 | Assignment or Delegation of Duties by Special Servicer | 330 | |||
Section 9.23 | Limitation on Liability of the Special Servicer and Others | 331 | |||
Section 9.24 | Indemnification; Third-Party Claims | 333 | |||
Section 9.25 | Reserved | 335 | |||
Section 9.26 | Special Servicer May Own Certificates | 335 | |||
Section 9.27 | Tax Reporting | 336 | |||
Section 9.28 | Application of Funds Received | 336 | |||
Section 9.29 | Compliance with REMIC Provisions and Grantor Trust Provisions | 336 | |||
Section 9.30 | Termination | 336 | |||
Section 9.31 | Procedure Upon Termination | 344 |
-iv- |
Section 9.32 | Certain Special Servicer Reports | 345 | |||
Section 9.33 | Special Servicer to Cooperate with the Master Servicer, the Trustee, the Custodian and the Certificate Administrator | 351 | |||
Section 9.34 | Litigation Control | 352 | |||
ARTICLE X | CERTAIN MATTERS RELATING TO THE CONTROLLING CLASS REPRESENTATIVE, THE TRUST ADVISOR AND THE HOLDERS OF THE SERVICED B NOTES AND SERVICED COMPANION LOANS | 356 | |||
Section 10.1 | Selection and Removal of the Controlling Class Representative | 356 | |||
Section 10.2 | Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders | 357 | |||
Section 10.3 | Rights and Powers of Controlling Class Representative | 358 | |||
Section 10.4 | Controlling Class Representative and Trust Advisor Contact with Master Servicer and Special Servicer | 361 | |||
Section 10.5 | Appointment, Duties and Compensation of the Trust Advisor | 361 | |||
Section 10.6 | Representations, Warranties and Covenants of the Trust Advisor | 367 | |||
Section 10.7 | Merger or Consolidation of the Trust Advisor | 368 | |||
Section 10.8 | Resignation of Trust Advisor | 369 | |||
Section 10.9 | Assignment or Delegation of Duties by Trust Advisor | 370 | |||
Section 10.10 | Limitation on Liability of the Trust Advisor and Others | 370 | |||
Section 10.11 | Indemnification; Third-Party Claims | 372 | |||
Section 10.12 | Termination of the Trust Advisor | 373 | |||
Section 10.13 | Rights of the Holders of a Serviced B Note and Serviced Companion Loan | 377 | |||
Section 10.14 | Rights of Non-Directing Holders | 379 | |||
ARTICLE XI PURCHASE AND TERMINATION OF THE TRUST | 380 | ||||
Section 11.1 | Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans | 380 | |||
Section 11.2 | Procedure Upon Termination of Trust | 382 | |||
Section 11.3 | Additional Trust Termination Requirements | 383 | |||
ARTICLE XII REMIC AND GRANTOR TRUST ADMINISTRATION | 384 | ||||
Section 12.1 | REMIC Administration | 385 | |||
Section 12.2 | Prohibited Transactions and Activities | 390 | |||
Section 12.3 | Modifications of Mortgage Loans | 390 | |||
Section 12.4 | Liability with Respect to Certain Taxes and Loss of REMIC Status | 391 | |||
Section 12.5 | Grantor Trust | 391 | |||
Section 12.6 | Grantor Trust Reporting Requirements | 392 | |||
ARTICLE XIII | EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE | 393 | |||
Section 13.1 | Intent of the Parties; Reasonableness | 393 |
-v- |
Section 13.2 | Information to be Provided by the Master Servicer, the Special Servicer, the Custodian, any Primary Servicer and the Certificate Administrator | 394 | |||
Section 13.3 | Filing Obligations | 396 | |||
Section 13.4 | Form 10-D Filings | 396 | |||
Section 13.5 | Form 10-K Filing | 399 | |||
Section 13.6 | Sarbanes-Oxley Certification | 401 | |||
Section 13.7 | Form 8-K Filings | 402 | |||
Section 13.8 | Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports | 404 | |||
Section 13.9 | Annual Compliance Statements | 405 | |||
Section 13.10 | Annual Reports on Assessment of Compliance with Servicing Criteria | 407 | |||
Section 13.11 | Annual Independent Public Accountants’ Servicing Report | 409 | |||
Section 13.12 | Indemnification | 410 | |||
Section 13.13 | Amendments | 414 | |||
Section 13.14 | Exchange Act Report Signatures | 414 | |||
Section 13.15 | Significant Obligors | 415 | |||
ARTICLE XIV MISCELLANEOUS PROVISIONS | 416 | ||||
Section 14.1 | Binding Nature of Agreement | 416 | |||
Section 14.2 | Entire Agreement | 416 | |||
Section 14.3 | Amendment | 416 | |||
Section 14.4 | GOVERNING LAW | 419 | |||
Section 14.5 | Notices | 419 | |||
Section 14.6 | Severability of Provisions | 421 | |||
Section 14.7 | Indulgences; No Waivers | 421 | |||
Section 14.8 | Headings Not to Affect Interpretation | 421 | |||
Section 14.9 | Benefits of Agreement | 421 | |||
Section 14.10 | Reserved | 422 | |||
Section 14.11 | Counterparts | 422 | |||
Section 14.12 | Intention of Parties | 422 | |||
Section 14.13 | Recordation of Agreement | 423 | |||
Section 14.14 | Rating Agency Surveillance Fees | 424 | |||
Section 14.15 | Waiver of Jury Trial | 424 | |||
Section 14.16 | Submission to Jurisdiction | 424 | |||
Section 14.17 | Limitation on Rights of Holders | 424 | |||
Section 14.18 | Acts of Holders of Certificates | 425 | |||
Section 14.19 | Compliance with Patriot Act | 426 | |||
Section 14.20 | Precautionary Trust Indenture Act Provisions | 426 | |||
Section 14.21 | Limitation on Liability of the Depositor and Others | 427 | |||
Section 14.22 | PNC Bank, National Association | 427 |
-vi- |
EXHIBITS AND SCHEDULES
EXHIBIT A-1 | Form of Class A-1 Certificate | |
EXHIBIT A-2 | Form of Class A-SB Certificate | |
EXHIBIT A-3 | Form of Class A-3 Certificate | |
EXHIBIT A-4 | Form of Class A-4 Certificate | |
EXHIBIT A-5 | Form of Class X-A Certificate | |
EXHIBIT A-6 | Form of Class X-B Certificate | |
EXHIBIT A-7 | Form of Class X-D Certificate | |
EXHIBIT A-8 | Form of Class A-S Certificate | |
EXHIBIT A-9 | Form of Class B Certificate | |
EXHIBIT A-10 | Form of Class C Certificate | |
EXHIBIT A-11 | Form of Class D Certificate | |
EXHIBIT A-12 | Form of Class X-E Certificate | |
EXHIBIT A-13 | Form of Class X-FG Certificate | |
EXHIBIT A-14 | Form of Class X-NR Certificate | |
EXHIBIT A-15 | Form of Class E Certificate | |
EXHIBIT A-16 | Form of Class F Certificate | |
EXHIBIT A-17 | Form of Class G Certificate | |
EXHIBIT A-18 | Form of Class H Certificate | |
EXHIBIT A-19 | Form of Class V Certificate | |
EXHIBIT A-20 | Form of Class R Certificate | |
EXHIBIT B-1 | Form of Initial Certification (Section 2.2) | |
EXHIBIT B-2 | Form of Final Certification (Section 2.2) | |
EXHIBIT C | Form of Request for Release | |
EXHIBIT D-1 | Form of Transferor Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-2A | Form I of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-2B | Form II of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-3 | Form of Transfer Certificate to an Interest in a Rule 144A Global Certificate | |
EXHIBIT E-1 | Form of Transferee Affidavit and Agreement (Class R) (Section 3.3(e)) | |
EXHIBIT E-2 | Form of Transferor Affidavit and Agreement (Class R) (Section 3.3(e)) | |
EXHIBIT F | Form of Regulation S Certificate | |
EXHIBIT G | Form of Exchange Certification (“Exchange Certificate”) | |
EXHIBIT H | Form of Euroclear Bank or Clearstream Bank Certificate (Section 3.7(d)) | |
EXHIBIT I-1A | Form of Investor Certification for Non-Borrower Party (for Persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder) | |
EXHIBIT I-1B | Form of Investor Certification for Non-Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder) |
-vii- |
EXHIBIT I-1C | Form of Investor Certification for Borrower Party (for Persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder) | |
EXHIBIT I-1D | Form of Investor Certification for Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder) | |
EXHIBIT I-1E | Form of Notice of Excluded Controlling Class Holder | |
EXHIBIT I-1F | Form of Notice of Excluded Controlling Class Holder to Certificate Administrator | |
EXHIBIT I-1G | Form of Certification of the Controlling Class Representative | |
EXHIBIT J | Form of NRSRO Certification (“NRSRO Certification”) | |
EXHIBIT K | Form of Distribution Date Statement (“Distribution Date Statement”) | |
EXHIBIT L | Form of Trust Advisor Annual Report | |
EXHIBIT M | Form of Financial Market Publishers Certification (Section 5.4(h)) and CREFC® Certification (Section 5.4(k)) | |
EXHIBIT N-1 | Reserved | |
EXHIBIT N-2 | Reserved | |
EXHIBIT O-1 | Form of Limited Power of Attorney to Master Servicer (Section 8.3(c)) | |
EXHIBIT O-2 | Form of Limited Power of Attorney to Special Servicer (Section 9.3(a)) | |
EXHIBIT P-1 | Form of Sarbanes-Oxley Certification (Section 13.6) | |
EXHIBIT P-2 | Reporting Servicer Form of Performance Certification (Section 13.6) | |
EXHIBIT Q | Form of Exchange Letter | |
EXHIBIT R | [Reserved] | |
EXHIBIT S-1 | Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT S-2 | Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT T | Form of Note Holder Certification | |
SCHEDULE I | BANA Loan Schedule | |
SCHEDULE II | UBSRES Loan Schedule | |
SCHEDULE III | List of Mortgage Loans Secured by the Interest of the Related Mortgagor under a Ground Lease, Space Lease or Air Rights Lease (Section 8.3(i)) | |
SCHEDULE IV | List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a) | |
SCHEDULE V | Certain Escrow Accounts for Which a Required Repair is Outstanding Under Section 5.1(g) | |
SCHEDULE VI | Mortgage Loans as to Which a Lender Register is to be Maintained | |
SCHEDULE VII | Mortgage Loans Secured by Mortgaged Properties Covered by an Environmental Insurance Policy | |
SCHEDULE VIII | Servicing Criteria to be Addressed in Assessment of Compliance | |
SCHEDULE IX | Additional Form 10-D Disclosure | |
SCHEDULE X | Additional Form 10-K Disclosure | |
SCHEDULE XI | Form 8-K Disclosure Information | |
SCHEDULE XII | Additional Disclosure Notification | |
SCHEDULE XIII | Seller Sub-Servicers | |
SCHEDULE XIV | Letters of Credit | |
SCHEDULE XV | Class A-SB Planned Principal Balance |
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SCHEDULE XVI | Hospitality Properties Subject to Franchise, Management or Similar Agreement | |
SCHEDULE XVII | Designated Escrow/Reserve Mortgage Loans |
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THIS POOLING AND SERVICING AGREEMENT is dated as of September 1, 2015 (this “Agreement”) between BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC., a Delaware corporation, as depositor (the “Depositor”), MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, as master servicer (in such capacity, the “Master Servicer”), LNR PARTNERS, LLC, as special servicer (the “Special Servicer”), PENTALPHA SURVEILLANCE LLC, as trust advisor (the “Trust Advisor”), and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), certificate registrar, authenticating agent and custodian (in such capacity, the “Custodian”).
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans from UBS Real Estate Securities Inc., as seller (“UBSRES”) and Bank of America, National Association, as seller (“BANA”), and will be the owner of the Mortgage Loans and the other property being conveyed by it to the Trustee for inclusion in the Trust which is hereby created. On the Closing Date, the Depositor will acquire: (i) the REMIC I Regular Interests and, to the extent they represent the REMIC I Residual Interest, the Class R Certificates as consideration for its transfer to the Trust of the Mortgage Loans (other than any Excess Interest payable thereon) and the other property constituting REMIC I; (ii) the REMIC II Regular Interests and, to the extent they represent the REMIC II Residual Interest, the Class R Certificates as consideration for its transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III Regular Certificates and, to the extent they represent the REMIC III Residual Interest, the Class R Certificates as consideration for its transfer of the REMIC II Regular Interests to the Trust; and (iv) the Class V Certificates as consideration for its transfer to the Trust of the right to receive Excess Interest. The Depositor has duly authorized the execution and delivery of this Agreement to provide for the foregoing and the issuance of (A) the REMIC I Regular Interests and, to the extent they represent the REMIC I Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and, to the extent they represent the REMIC II Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC II, (C) the REMIC III Regular Certificates and, to the extent they represent the REMIC III Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC III and (D) the Class V Certificates, representing in the aggregate the entire beneficial ownership of the Class V Specific Grantor Trust Assets. Excess Interest received on the Mortgage Loans shall be held in the Grantor Trust for the benefit of the Holders of the Class V Certificates. All covenants and agreements made by the Depositor herein with respect to the Mortgage Loans and the other property constituting the Trust are for the benefit of the holders of the REMIC I Regular Interests, the holders of the REMIC II Regular Interests, the Holders of the REMIC III Regular Certificates and the Holders of the Class V and Class R Certificates. The parties hereto are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A Senior Certificates and the Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D Certificates (collectively, the “Registered Certificates”)
were offered for sale pursuant to the Depositor’s prospectus dated September 8, 2015, as supplemented by the free writing prospectus dated September 8, 2015, as further supplemented by the free writing prospectus dated September 11, 2015 (collectively, the “Free Writing Prospectus”, and together with the Depositor’s prospectus dated September 8, 2015, the “Preliminary Prospectus”), and as further supplemented by the final prospectus supplement dated the Pricing Date (the “Prospectus Supplement”, and together with the Depositor’s prospectus dated the Pricing Date, the “Prospectus”, the “Final Prospectus”). The Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G, Class H, Class V and Class R Certificates will be offered for sale pursuant to a Preliminary Private Placement Memorandum dated September 8, 2015 (as supplemented by the preliminary private placement memorandum supplement, dated September 11, 2015, collectively, the “Preliminary Private Placement Memorandum”) and a final Private Placement Memorandum dated the Pricing Date (the “Private Placement Memorandum”).
REMIC I
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the first (1st) paragraph of Section 12.1(a) hereof (including the Mortgage Loans (other than any Excess Interest payable with respect to such Mortgage Loans)) to be treated for federal income tax purposes as a REMIC (“REMIC I”). The REMIC I Regular Interests will be designated as the “regular interests” in REMIC I and the Class R Certificates will evidence the sole class of “residual interests” in REMIC I for purposes of the REMIC Provisions.
Each REMIC I Regular Interest will relate to, and constitute the “Corresponding REMIC I Regular Interest” with respect to, a separate specific Mortgage Loan (including an REO Mortgage Loan and any Qualifying Substitute Mortgage Loan that may replace such Mortgage Loan). Each REMIC I Regular Interest will have a Pass-Through Rate equal to the applicable REMIC I Net Mortgage Rate from time to time, an initial REMIC I Principal Amount equal to the Cut-off Date Principal Balance of the Mortgage Loan to which such REMIC I Regular Interest relates, and a “latest possible maturity date” set to the Rated Final Distribution Date. The Class R Certificates will have no principal amount and no Pass-Through Rate, but (insofar as such Certificates represent the REMIC I Residual Interest) will entitle Holders thereof to receive the proceeds of any assets remaining in REMIC I after all the REMIC I Regular Interests have been paid in full.
REMIC II
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the second (2nd) paragraph of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be treated for federal income tax purposes as a REMIC (“REMIC II”). The REMIC II Regular Interests will be designated as the “regular interests” in REMIC II and the Class R Certificates will evidence the sole class of “residual interests” in REMIC II for purposes of the REMIC Provisions.
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The following table sets forth the designation, the initial REMIC II Principal Amount, the corresponding Class of Principal Balance Certificates (the “Corresponding Certificates”) and corresponding Class X REMIC III Regular Interest (the “Corresponding Class X REMIC III Regular Interest”) with respect to each REMIC II Regular Interest. Each REMIC II Regular Interest shall have a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time. The Class R Certificates will have no principal amount and no Pass-Through Rate, but (insofar as such Certificates represent the REMIC II Residual Interest) will entitle Holders thereof to receive the proceeds of any assets remaining in REMIC II after all the REMIC II Regular Interests have been paid in full.
Designations
of REMIC II Regular Interests |
Initial
REMIC II Principal Amount |
Corresponding Certificates |
Corresponding
Class X REMIC III Regular Interest | ||||
A-1 | $ | 38,700,000 | Class A-1 | X-A-1 | |||
A-SB | $ | 62,400,000 | Class A-SB | X-A-SB | |||
A-3 | $ | 200,000,000 | Class A-3 | X-A-3 | |||
A-4 | $ | 228,996,000 | Class A-4 | X-A-4 | |||
A-S | $ | 50,170,000 | Class A-S | X-A-S | |||
B | $ | 50,169,000 | Class B | N/A | |||
C | $ | 33,010,000 | Class C | N/A | |||
D | $ | 39,879,000 | Class D | X-D | |||
E | $ | 17,038,000 | Class E | X-E | |||
F | $ | 7,573,000 | Class F | X-F | |||
G | $ | 7,573,000 | Class G | X-G | |||
H | $ | 21,772,331 | Class H | X-H |
REMIC III
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the third (3rd) paragraph of Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be treated for federal income tax purposes as a REMIC (“REMIC III”). The Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates and the Class X REMIC III Regular Interests will be designated as the “regular interests” in REMIC III, and the Class R Certificates will evidence the sole class of “residual interests” in REMIC III for purposes of the REMIC Provisions.
The following table sets forth the Class designation, initial Aggregate Certificate Balance (or initial Notional Amount) and corresponding REMIC II Regular Interest(s) (each, a “Corresponding REMIC II Regular Interest”) with respect to each Class of REMIC III Regular Certificates. On each Distribution Date, the Pass-Through Rate for each Class of Certificates (other than the Class V and Class R Certificates) will be determined as set forth herein under the definition of “Pass-Through Rate.” The Class R Certificates will have no Aggregate Certificate Balance or Pass-Through Rate, but (insofar as such Certificates represent the REMIC III Residual Interest) will entitle the Holders thereof to receive the proceeds of any remaining assets in REMIC III after the Aggregate Certificate Balance of the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates have been reduced to zero and any Collateral Support Deficits previously allocated thereto (and any interest thereon) have been reimbursed.
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Class Designation | Initial Aggregate Certificate Balance or Notional Amount |
Corresponding
REMIC II Regular Interest(s) | |||
Class A-1 | $ | 38,700,000 | A-1 | ||
Class A-SB | $ | 62,400,000 | A-SB | ||
Class A-3 | $ | 200,000,000 | A-3 | ||
Class A-4 | $ | 228,996,000 | A-4 | ||
Class A-S | $ | 50,170,000 | A-S | ||
Class B | $ | 50,169,000 | B | ||
Class C | $ | 33,010,000 | C | ||
Class D | $ | 39,879,000 | D | ||
Class E | $ | 17,038,000 | E | ||
Class F | $ | 7,573,000 | F | ||
Class G | $ | 7,573,000 | G | ||
Class H | $ | 21,772,331 | H | ||
Class X-A(a) | $ | 530,096,000(b) | A-1, A-SB, A-3 and A-4(c) | ||
Class X-B(d) | $ | 50,170,000(b) | A-S(e) | ||
Class X-D(f) | $ | 39,879,000(b) | D(g) | ||
Class X-E(h) | $ | 17,038,000(b) | E(i) | ||
Class X-FG(j) | $ | 15,146,000(b) | F and G(k) | ||
Class X-NR(l) | $ | 21,772,331(b) | H(m) |
(a) | The Class X-A Certificates represent ownership of the Class X-A REMIC III Regular Interests. |
(b) | Notional Amount equals the aggregate REMIC II Principal Amount of the Corresponding REMIC II Regular Interest(s). |
(c) | REMIC II Regular Interest A-1 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-1; REMIC II Regular Interest A-SB is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-SB; REMIC II Regular Interest A-3 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-3; and REMIC II Regular Interest A-4 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-4. |
(d) | The Class X-B Certificates represent ownership of the Class X-B REMIC III Regular Interest. |
(e) | REMIC II Regular Interest A-S is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-S. |
(f) | The Class X-D Certificates represent ownership of the Class X-D REMIC III Regular Interest. |
(g) | REMIC II Regular Interest D is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-D. |
(h) | The Class X-E Certificates represent ownership of the Class X-E REMIC III Regular Interest. |
(i) | REMIC II Regular Interest E is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-E. |
(j) | The Class X-FG Certificates represent ownership of the Class X-FG REMIC III Regular Interests. |
(k) | REMIC II Regular Interest F is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-F and REMIC II Regular Interest G is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-G. |
(l) | The Class X-NR Certificates represent ownership of the Class X-NR REMIC III Regular Interest. |
(m) | REMIC II Regular Interest E is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-H. |
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GRANTOR TRUST
The parties intend that the portion of the Trust consisting of the segregated pool of assets consisting of the Class V Specific Grantor Trust Assets (if any) (such portion of the Trust, the “Grantor Trust”) be treated as a grantor trust under Subpart E of Part 1 of subchapter J of the Code, as an “investment trust” under Treasury Regulations Section 301.7701-4(c) and as a “domestic trust” under Treasury Regulations Section 301.7701-7. If any Class V Specific Grantor Trust Assets exist, then the Class V Certificates shall represent undivided beneficial interests in a portion of the Grantor Trust consisting of the related Class V Specific Grantor Trust Assets. For federal income tax purposes the Certificate Administrator shall treat the Grantor Trust as a grantor trust and shall treat each Holder of a Class V Certificate as the owner of the individual, underlying assets represented by any such Certificate. In addition, to the fullest extent possible, ownership of a Class V Certificate shall be treated as direct ownership of the individual, underlying assets represented by such Certificate for federal income tax reporting purposes.
ARTICLE
I
DEFINITIONS; CALCULATIONS AND CERTAIN OTHER MATTERS
Section 1.1 Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
“10-K Filing Deadline” has the meaning set forth in Section 13.5.
“17g-5 Indemnified Party” has the meaning set forth in Section 5.7(c).
“17g-5 Indemnifying Party” means each of the 17g-5 Information Provider, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Certificate Registrar, the Trustee, the Custodian and (other than with respect to the Sellers, the Underwriters and the Initial Purchasers) the Master Servicer.
“17g-5 Information Provider” means the Certificate Administrator.
“17g-5 Information Provider’s Website” means the internet website of the 17g-5 Information Provider, initially located at www.usbank.com/abs, under the “NRSRO” tab of the respective transaction, access to which is limited to Rating Agencies and other NRSROs who have provided an NRSRO Certification.
“30/360 Basis” has the meaning set forth in the definition of REMIC I Net Mortgage Rate.
“200 Helen Street A/B Whole Loan” means, collectively, the 200 Helen Street Mortgage Loan and the 200 Helen Street B Note.
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“200 Helen Street B Note” means the promissory note designated as “Note B,” that is generally subordinate in right of payment to the 200 Helen Street Mortgage Loan to the extent provided in the 200 Helen Street Intercreditor Agreement.
“200 Helen Street Intercreditor Agreement” means the intercreditor, co-lender or comparable agreement between the initial holders of the 200 Helen Street Mortgage Loan and the 200 Helen Street B Note.
“200 Helen Street Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated “Note A” and identified as “200 Helen Street” on the Mortgage Loan Schedule, and that is generally senior in right of payment to the 200 Helen Street B Note to the extent set forth in the 200 Helen Street Intercreditor Agreement.
“261 Fifth Avenue Companion Loan” means the promissory note designated “Note A-1” that is not included in the Trust and is secured on a pari passu basis with the 261 Fifth Avenue Mortgage Loan to the extent set forth in the 261 Fifth Avenue Intercreditor Agreement. The 261 Fifth Avenue Companion Loan is not a “Mortgage Loan.” Prior to the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Companion Loan shall be a “Serviced Companion Loan.” On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Companion Loan shall be a “Non-Serviced Companion Loan.”
“261 Fifth Avenue Companion Loan Securitization Date” means the date on which the 261 Fifth Avenue Companion Loan is included in a securitization trust; provided, that the holder of the 261 Fifth Avenue Companion Loan provides each of the Master Servicer, the Special Servicer and the Trustee (in each case only to the extent such party will not also be a party to the related Other Securitization) with notice in accordance with the terms of the 261 Fifth Avenue Intercreditor Agreement that the 261 Fifth Avenue Companion Loan is to be included in such Other Securitization.
“261 Fifth Avenue Directing Holder” means the “Controlling Note Holder” or any analogous concept under the 261 Fifth Avenue Intercreditor Agreement.
“261 Fifth Avenue Intercreditor Agreement” means the intercreditor, co-lender or comparable agreement between the initial holders of the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan.
“261 Fifth Avenue Loan Pair” means, collectively, the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan, collectively, shall be a “Non-Serviced Loan Combination.”
“261 Fifth Avenue Mortgage” means the Mortgage securing the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan.
“261 Fifth Avenue Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-2” and identified as “261 Fifth Avenue” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the 261 Fifth Avenue Companion
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Loan to the extent set forth in the 261 Fifth Avenue Intercreditor Agreement. Prior to the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan shall be a “Serviced Pari Passu Mortgage Loan.” On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan shall be a “Non-Serviced Mortgage Loan.”
“A Note” means, with respect to any A/B Whole Loan, the mortgage note (or notes) included in the Trust that is senior in right of payment to the related Serviced B Note or any other subordinated note(s) to the extent set forth in the related Intercreditor Agreement. The only A Notes related to the Trust as of the Closing Date are the mortgage notes evidencing the Charles River Plaza North Mortgage Loan and the 200 Helen Street Mortgage Loan.
“A/B Whole Loan” means any mortgage loan serviced under this Agreement that is divided into a senior mortgage note that is included in the Trust and one or more subordinated mortgage note(s) not included in the Trust. References herein to an A/B Whole Loan shall be construed to refer to the aggregate indebtedness under the related A Note and the related subordinated note(s). The 200 Helen Street A/B Whole Loan is the only A/B Whole Loan related to the Trust as of the Closing Date.
“A/B Whole Loan Custodial Account” means each of the custodial sub-account(s) of the Collection Account (but which are not included in the Trust) created and maintained by the Master Servicer with respect to an A/B Whole Loan pursuant to Section 5.1(c) on behalf of the holder of a related Serviced B Note. Any such sub-account(s) shall be maintained as a sub-account of an Eligible Account.
“Acceptable Insurance Default” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any default arising when the related Mortgage Loan documents require that the related Mortgagor must maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with the Servicing Standard, but subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the related Mortgaged Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate.
“Accountant” means a person engaged in the practice of accounting who is Independent.
“Accrued Certificate Interest” means: (a) with respect to any Class of Certificates (other than the Class X, Class V and Class R Certificates) for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the Aggregate Certificate Balance of such Class immediately prior to such Distribution Date at the applicable Pass-Through Rate for such Class and Distribution Date; and (b) with respect to any Class of Class X Certificates for any Distribution Date, all Accrued Interest with respect to the related
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Class X REMIC III Regular Interests for such Distribution Date. Accrued Certificate Interest will be calculated on a 30/360 Basis.
“Accrued Interest” means: (a) with respect to any REMIC I Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the REMIC I Principal Amount of such REMIC I Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such REMIC I Regular Interest and Distribution Date; (b) with respect to any REMIC II Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the REMIC II Principal Amount of such REMIC II Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such REMIC II Regular Interest and Distribution Date; and (c) with respect to any Class X REMIC III Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the Notional Amount of such Class X REMIC III Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such Class X REMIC III Regular Interest and Distribution Date. Accrued Interest will be calculated on a 30/360 Basis.
“Acquisition Date” means the date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest therein, in the case of the Mortgaged Properties securing any A/B Whole Loan, Non-Serviced Mortgage Loan, Non-Serviced Companion Loan or Loan Pair).
“Actual Recoveries” means any actual recoveries of Trust Advisor Expenses from third parties (i.e., other than the related Mortgagor) or from the related Mortgagor to the extent such amounts paid by the related Mortgagor were specifically identified as a reimbursement of the Trust Advisor Expenses and paid in respect of a Collection Period when no other amounts were currently due and owing (or when the related Mortgagor contemporaneously paid all amounts due and owing) in respect of the related Mortgage Loan to which such Trust Advisor Expenses related.
“Actual/360 Basis” means the accrual of interest calculated on the basis of the actual number of days elapsed during any calendar month (or other applicable accrual period, including any Interest Accrual Period) in a year assumed to consist of 360 days.
“Additional Disclosure Notification” means the form of notification attached hereto as Schedule XII to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information.
“Additional Form 10-D Disclosure” has the meaning set forth in Section 13.4.
“Additional Form 10-K Disclosure” has the meaning set forth in Section 13.5.
“Additional Servicer” means each Affiliate of the Master Servicer, the Special Servicer, the Sellers, the Certificate Administrator, the Custodian, the Trustee, the Depositor or any of the Underwriters that Services any of the Mortgage Loans and each Person, other than the Special Servicer, who is not an Affiliate of the Master Servicer, the Sellers, the Certificate
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Administrator, the Custodian, the Trustee, the Depositor or any of the Underwriters, that Services 10% or more of the Mortgage Loans (based on their Unpaid Principal Balances).
“Additional Trust Expense” means any of the following items: (i) Special Servicing Fees, Workout Fees and Liquidation Fees (in each case to the extent not collected from the related Mortgagor); (ii) Advance Interest that cannot be paid in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, the Trust Advisor (subject to the last sentence of this definition), any applicable Non-Serviced Mortgage Loan Special Servicer, the Trustee, the Custodian, the Certificate Administrator (or any other Person) pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid, any federal, state, or local taxes imposed on the Trust or its assets and paid from amounts on deposit in the Collection Account or Distribution Account; and (v) subject to the last sentence of this definition, to the extent not otherwise covered by indemnification by one of the parties hereto or otherwise and not payable by the related Mortgagor under any Mortgage Loan, any other unanticipated cost, liability, or expense (or portion thereof) of the Trust (including costs of collecting such amounts or other Additional Trust Expenses) that the Trust has not recovered, and in the judgment of the Master Servicer (or Special Servicer) will not recover, from any other source; provided that, in the case of an A/B Whole Loan or Loan Pair, “Additional Trust Expense” shall not include any of the foregoing amounts to the extent that the payment of those expenses are allocated to a related Serviced B Note as a result of the subordination of such related Serviced B Note or to the related Serviced Companion Loan, in each case in accordance with the terms of the related Intercreditor Agreement. Notwithstanding anything to the contrary, “Additional Trust Expenses” shall not include (A) allocable overhead of the Master Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, any applicable Non-Serviced Mortgage Loan Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Certificate Registrar, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses, and similar costs and expenses related to allocable overhead (and each of such parties shall be solely responsible for any such costs incurred by it), or (B) with respect to any Class of Control Eligible Certificates, Trust Advisor Expenses (including Excess Trust Advisor Expenses).
“Administrative Cost Rate” means, with respect to each Mortgage Loan, the sum of the Master Servicing Fee Rate, the Trust Advisor Fee Rate, the Certificate Administrator Fee Rate, the CREFC® License Fee Rate and, in the case of any Non-Serviced Mortgage Loan, the related Pari Passu Loan Primary Servicing Fee Rate.
“Advance” means either a P&I Advance or a Servicing Advance.
“Advance Interest” means interest at the Advance Rate payable to the Master Servicer, the Special Servicer or the Trustee on outstanding Advances (other than Unliquidated Advances) pursuant to Section 4.5 of this Agreement and any interest payable to any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Fiscal Agent with respect to Pari Passu Loan Nonrecoverable Advances pursuant to Section 4.4(c) hereof.
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“Advance Rate” means a per annum rate equal to the Prime Rate as published in the “Money Rates” section of The Wall Street Journal from time to time. If The Wall Street Journal ceases to publish the “prime rate,” then the Trustee shall select an equivalent publication that publishes such “prime rate”; and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body then the Trustee shall select a comparable interest rate index. In either case, such selection shall be made by the Trustee in its reasonable discretion and the Trustee shall notify the Master Servicer and the Special Servicer in writing of its selection.
“Advance Report Date” means the second (2nd) Business Day prior to each Distribution Date.
“Adverse Grantor Trust Event” means any action that, under the Code, if taken or not taken, as the case may be, would result in the imposition of an entity level tax on the income of the Grantor Trust or any of its assets or transactions.
“Adverse REMIC Event” means any action that, under the REMIC Provisions, if taken or not taken, as the case may be, would either (i) endanger the status of any REMIC Pool as a REMIC or (ii) except as permitted by Section 9.14(e), result in the imposition of a tax upon the income of any REMIC Pool or any of its assets or transactions, including without limitation the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on contributions set forth in Section 860G(d) of the Code.
“Affected Reporting Party” has the meaning set forth in Section 13.12.
“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Aggregate Certificate Balance” means, when used with respect to Certificates, means, at any time of determination, the aggregate of the Certificate Balances of any two or more Principal Balance Certificates or of all the Certificates of any particular Class or Classes of Principal Balance Certificates.
“Aggregate Stated Principal Balance” means, at the time of any determination and as the context may require, the aggregate of the Stated Principal Balances for all Mortgage Loans (including REO Mortgage Loans).
“Agreement” means this Pooling and Servicing Agreement and all amendments and supplements hereto.
“Allocable Modification Fee” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, as to which a Modification Fee is collected, the excess, if any, of (i) such Modification Fee, over (ii) 0.75% of the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair
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immediately following the related restructuring, modification, extension, waiver or amendment in connection with which such Modification Fee was collected.
“Anticipated Repayment Date” means, with respect to each ARD Mortgage Loan, the anticipated maturity date set forth in the related Mortgage Note.
“Applicable Control Party” means, with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan, Loan Pair or related REO Property, as the context may require, subject to the restrictions set forth in Section 10.1(c), the Controlling Class Representative (during any Subordinate Control Period and except with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder) or any related Loan-Specific Directing Holder (solely with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of a related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable. During any Collective Consultation Period and any Senior Consultation Period, there shall be no Applicable Control Party except: (i) to the extent provided for under the related Intercreditor Agreement, with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder; and (ii) with respect to the Controlling Class Representative if it is otherwise specifically granted consent rights during any Collective Consultation Period with respect to any particular matter as set forth herein. Provisions in this Agreement that contemplate any other Person having to obtain the consent or approval of, consult with or otherwise interact with an Applicable Control Party in circumstances involving a Mortgage Loan, A/B Whole Loan, Loan Pair or related REO Property as to which there is no Applicable Control Party shall be of no force and effect.
“Applicable Laws” has the meaning set forth in Section 14.19.
“Appraisal” means an appraisal by an Independent licensed MAI appraiser having at least five (5) years’ experience in appraising property of the same type as, and in the same geographic area as, the Mortgaged Property being appraised, which appraisal complies with the Uniform Standards of Professional Appraisal Practices and states the “market value” of the subject property as defined in 12 C.F.R. § 225.62.
“Appraisal Event” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, the occurrence of the earliest of:
(a) the date on which a modification of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, becomes effective following the occurrence of a Servicing Transfer Event that, among other things, materially affects the amount or timing of any payment of principal or interest on such Mortgage Loan, A/B Whole Loan or Loan Pair or materially affects any other Money Term (other than an extension of the date that a Balloon Payment is due for a period of less than six (6) months from the original due date of such Balloon Payment), or changes any other material economic term
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of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, or impairs the security of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be;
(b) that date on which such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, is sixty (60) days or more delinquent in respect of any Scheduled Payment (other than a Balloon Payment);
(c) solely in the case of a delinquent Balloon Payment, (i) the date occurring sixty (60) days beyond the date on which that Balloon Payment was due (except as described in clause (ii)) or (ii) if the related Mortgagor has delivered a refinancing commitment acceptable to the Special Servicer prior to the date sixty (60) days after maturity, the date occurring 120 days after the date on which that Balloon Payment was due (or for such shorter period beyond the date on which that Balloon Payment was due during which the refinancing is scheduled to occur);
(d) that date on which the related Mortgaged Property became an REO Property;
(e) the day on which Special Servicer receives notice that a receiver or similar official has been appointed (and continues in that capacity) in respect of the related Mortgaged Property;
(f) the date the related Mortgagor becomes subject to (i) a voluntary bankruptcy, insolvency or similar proceeding, or (ii) an involuntary bankruptcy, insolvency or similar proceeding that remains undismissed for sixty (60) days; or
(g) the date on which such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, remains outstanding five (5) years following any extension of its maturity date pursuant to this Agreement.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, an “Appraisal Event” shall occur upon receipt of notice from the related Non-Serviced Mortgage Loan Master Servicer of an “Appraisal Event” pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, upon which notice the parties hereto may conclusively rely.
“Appraisal Reduction” means, with respect to any Required Appraisal Loan (including any Required Appraisal Loan that is or is comprised of an REO Mortgage Loan, REO Serviced B Note or REO Serviced Companion Loan, as the case may be) with respect to which an Appraisal or internal valuation is performed pursuant to Section 6.9, an amount equal to the excess of (A) the sum of (i) the Stated Principal Balance of such Required Appraisal Loan, less the principal amount of any payment guaranty or surety bond with a rating of at least “BBB-“ (or its equivalent) by a NRSRO and the undrawn principal amount of any letter of credit or debt service reserve, if applicable, that is then securing such Required Appraisal Loan, (ii) to the extent not previously advanced by the Master Servicer, the Trustee or, in respect of any Serviced Companion Loan, any related Other Master Servicer or Other Trustee, all accrued and unpaid interest on such Required Appraisal Loan at a per annum rate equal to the applicable Mortgage Rate, (iii) all unreimbursed Advances and interest on such Advances at the Advance Rate, and all
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Unliquidated Advances, with respect to such Required Appraisal Loan (together with any similar amounts, including unreimbursed advances, due and owing under any related Other Companion Loan Pooling and Servicing Agreement), and (iv) to the extent funds on deposit in any applicable Escrow Accounts are not sufficient therefor, and to the extent not previously advanced by the Master Servicer, the Special Servicer or the Trustee all currently due and unpaid real estate taxes and assessments, insurance premiums and, if applicable, ground rents and other amounts which were required to be deposited in any Escrow Account (but were not deposited) in respect of the related Mortgaged Property or REO Property, as the case may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of the related Mortgaged Property or REO Property, as the case may be, as determined by such Appraisal or internal valuation, as the case may be, plus the full amount of any escrows held by or on behalf of the Trustee as security for such Required Appraisal Loan (less the estimated amount of the obligations anticipated to be payable in the next twelve months to which such escrows relate); provided that, if any Required Appraisal Loan is secured by more than one (1) Mortgaged Property (other than by cross-collateralization with another Mortgage Loan), and one or more of the related Mortgaged Properties has been defeased, the Stated Principal Balance of such Required Appraisal Loan shall not include the portion of the principal balance of such Required Appraisal Loan that has been defeased, and any defeasance collateral will not be included for purposes of determining the value of the Mortgaged Property or REO Property that secures the related Required Appraisal Loan; and provided, further, that each Appraisal Reduction will be reduced to zero as of the date the related Required Appraisal Loan becomes a Rehabilitated Mortgage Loan and no Appraisal Reduction will exist as to any Required Appraisal Loan after it has been paid in full, liquidated, repurchased or otherwise disposed of; and provided, further, that any Appraisal Reduction in respect of any Non-Serviced Mortgage Loan shall be (x) calculated in accordance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement based upon the applicable allocation of the items set forth in clauses (A) and (B) above between the Non-Serviced Mortgage Loans and the related Non-Serviced Companion Loans and all other related pari passu loans and B Notes and (y) applied to any Non-Serviced Mortgage Loan to the extent notice of such Appraisal Reduction has been delivered to the Master Servicer by the related Non-Serviced Mortgage Loan Master Servicer. Receipt by the Master Servicer of a distribution date statement from the related Non-Serviced Mortgage Loan Master Servicer shall constitute notice of such Appraisal Reduction if such Appraisal Reduction information is contained therein, upon which the Master Servicer may conclusively rely without any independent calculation. Notwithstanding the foregoing, (1) if an Appraisal is required to be obtained in accordance with Section 6.9 of this Agreement but is not obtained within 120 days following the events described in the applicable clause of the definition “Appraisal Event” (without regard to the time periods stated therein), then, until such Appraisal is obtained and solely for purposes of determining the amounts of P&I Advances, the Appraisal Reduction shall equal 25% of the Stated Principal Balance of the related Required Appraisal Loan; provided that, upon receipt of an Appraisal, the Appraisal Reduction for such Required Appraisal Loan shall be recalculated in accordance with this definition without regard to this sentence and (2) with respect to any Non-Serviced Mortgage Loan, if the related Non-Serviced Mortgage Loan Master Servicer has not delivered notice of an Appraisal Reduction within 120 days following its notification of an Appraisal Event, then, until such notice is received and solely for purposes of determining the amounts of P&I Advances, the Appraisal Reduction shall equal 25% of the Stated Principal Balance of such Non-Serviced
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Mortgage Loan; provided that, upon receipt of such notice, the Appraisal Reduction shall be the amount determined by such Non-Serviced Mortgage Loan Master Servicer.
“Appraised Value” means, (i) with respect to any Mortgaged Property (other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan), the appraised value thereof determined by an Appraisal of the Mortgaged Property securing such Mortgage Loan made by an Independent appraiser selected by the Master Servicer, the Special Servicer or, as and when provided in Section 6.9, the Requesting Holders, as applicable, or, in the case of an internal valuation performed by the Special Servicer pursuant to Section 6.9, the value of the Mortgaged Property determined by such internal valuation and (ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage Loan, the portion of the appraised value allocable thereto.
“Appraised-Out Class” has the meaning set forth in Section 6.9.
“ARD Loan” means any Mortgage Loan, Serviced B Note or Serviced Companion Loan that provides that if the unamortized principal balance thereof is not repaid by a date certain set forth in the related Mortgage Loan documents, such Mortgage Loan, Serviced B Note or Serviced Companion Loan, as the case may be, will accrue additional interest (payable under the related Mortgage Loan documents only after the original principal balance of the subject Mortgage Loan, Serviced B Note or Serviced Companion Loan, as the case may be, has been paid or otherwise discharged in full and, for the avoidance of doubt, excluding from such determination regarding the repayment or discharge of such original principal balance any Excess Interest capitalized as additional principal pursuant to the related Mortgage Loan documents) at the rate specified in the related Mortgage Note and the related Mortgagor is required to apply certain excess monthly cash flow generated by the related Mortgaged Property to the repayment of the outstanding principal balance on such Mortgage Loan. As of the Cut-off Date, the only ARD Loan related to the Trust is the Charles River Plaza North Mortgage Loan.
“ARD Mortgage Loan” means a Mortgage Loan that is an ARD Loan. As of the Cut-off Date, the only ARD Mortgage Loan related to the Trust is the Charles River Plaza North Mortgage Loan.
“ARP Report” has the meaning set forth in Section 13.12.
“Asset Status Report” has the meaning set forth in Section 9.32.
“Assignment of Leases” means, with respect to any Mortgage Loan, any assignment of leases, rents and profits or equivalent instrument, whether contained in the related Mortgage or executed separately, assigning to the holder or holders of such Mortgage all of the related Mortgagor’s interest in the leases, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of the related Mortgaged Property as security for repayment of such Mortgage Loan.
“Assignment of Mortgage” means an assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the transfer of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one
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or more blanket assignments covering the Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction, if permitted by law.
“Assumed Scheduled Payment” means: (i) with respect to any Balloon Mortgage Loan as to which advancing is required hereunder for its Maturity Date (provided that such Balloon Mortgage Loan has not been paid in full, and no Final Recovery Determination or other sale or liquidation has occurred in respect thereof, on or before the end of the Collection Period in which such Maturity Date occurs) and for any subsequent Due Date therefor as of which such Balloon Mortgage Loan remains outstanding and part of the Trust, if no Scheduled Payment (other than the related delinquent Balloon Payment) is due for such Due Date, the scheduled monthly payment of principal and/or interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment that would have been due in respect of such Balloon Mortgage Loan on such Due Date, if it had been required to continue to accrue interest in accordance with its terms, and to pay principal in accordance with the amortization schedule in effect immediately prior to, and without regard to the occurrence of, its most recent Maturity Date (as such may have been extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment of such Balloon Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to the terms hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date therefor as of which the related REO Property or an interest therein remains part of the Trust, the scheduled monthly payment of principal and interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in clause (i) of this definition, the Assumed Scheduled Payment) that was due in respect of the related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for any A Note shall be calculated solely by reference to the terms thereof (as modified in connection with any bankruptcy or similar proceeding involving the related Mortgagor or pursuant to a modification, waiver or amendment of such Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to the terms hereof) and without regard to the remittance provisions of the related Intercreditor Agreement.
“Assumption Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any and all assumption fees of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, for transactions effected under Section 8.7 and/or Section 9.5 (excluding assumption application fees), actually paid by the related Mortgagor and other applicable fees (excluding assumption application fees) actually paid by the related Mortgagor in accordance with the related Mortgage Loan documents, with respect to any assumption or substitution agreement entered into by the Master Servicer or the Special Servicer, as applicable, on behalf of the Trust (or, in the case of an A/B Whole Loan or a Loan Pair, on behalf of the Trust and the holder of any related Serviced B Note or Serviced Companion Loan, as applicable) pursuant to, or paid by the related Mortgagor with respect to, any transfer of an interest in such Mortgagor pursuant to Section 8.7 or Section 9.5, as applicable.
“Authenticating Agent” means any authenticating agent serving in such capacity pursuant to Section 7.10.
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“Authorized Officer” means any Person that may execute an Officer’s Certificate on behalf of the Depositor.
“Available Advance Reimbursement Amount” has the meaning set forth in Section 4.6(a).
“Available Distribution Amount” means, with respect to any Distribution Date, an amount equal to the aggregate, without duplication, of the following amounts payable with respect to the Certificates: (a) all amounts on deposit in the Distribution Account (or any subaccount thereof) as of the commencement of business on such Distribution Date that represent payments and other collections on or in respect of the Mortgage Loans and any REO Properties that were received by the Master Servicer or the Special Servicer through the end of the related Collection Period (together with any amounts received in respect of payments or other collections relating to any Non-Serviced Mortgage Loan from the related Non-Serviced Mortgage Loan Master Servicer as part of the applicable monthly remittance) exclusive of any portion thereof that represents one or more of the following: (i) any such amounts that were deposited in the Distribution Account in error, (ii) amounts that are payable or reimbursable to any Person other than the Holders of the Principal Balance Certificates and the Class X and Class R Certificates (including, without limitation, amounts payable (A) to the Master Servicer in respect of unpaid Master Servicing Fees, the Special Servicer in respect of unpaid Special Servicer Compensation, the Trust Advisor in respect of unpaid Trust Advisor Fees or Trust Advisor Consulting Fees (to the extent that such Trust Advisor Consulting Fee is actually received from the related Mortgagor), the Certificate Administrator in respect of unpaid Certificate Administrator Fees, including any portion of the Certificate Administrator Fees payable to the Trustee in respect of unpaid Trustee Fees or to the Custodian in respect of unpaid Custodian Fees or CREFC® in respect of unpaid CREFC® License Fees and/or (B) in reimbursement of outstanding Advances (with interest thereon)), (iii) amounts that constitute Prepayment Premiums, (iv) except with respect to the final Distribution Date, if such Distribution Date occurs during January, other than during a leap year, or February of any year, the Interest Reserve Amounts of one (1) day’s interest with respect to Interest Reserve Loans deposited in the Interest Reserve Account; (v) in the case of each REO Property related to an A/B Whole Loan or Loan Pair, all amounts received with respect to such A/B Whole Loan or Loan Pair that are required to be paid to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the terms of the related Serviced B Note or Serviced Companion Loan, as applicable, and the related Intercreditor Agreement (which amounts will be deposited into the related Custodial Account pursuant to Section 5.1(c) and withdrawn from such account pursuant to Section 5.2(a)); and (vi) Scheduled Payments collected but due on a Due Date subsequent to the related Collection Period; and (b) if and to the extent not already among the amounts described in clause (a), (i) the aggregate amount of any P&I Advances made by the Master Servicer or the Trustee for such Distribution Date on the Mortgage Loans pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest payments made by the Master Servicer on the Mortgage Loans for such Distribution Date pursuant to the terms hereof, (iii) if such Distribution Date occurs in March of any year, commencing March 2016, or on the final Distribution Date, the aggregate of the Interest Reserve Amounts then held on deposit in the Interest Reserve Account in respect of each Interest Reserve Loan; and (iv) any Balloon Payments received during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer
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Remittance Date and remitted by the Master Servicer to the Distribution Account pursuant to Section 5.2(c).
“Aviare Place Apartments Intercreditor Agreement” means the intercreditor, co-lender or comparable agreement between the initial holders of the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Non-Serviced Companion Loan.
“Aviare Place Apartments Non-Serviced Loan Combination” means, collectively, the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Non-Serviced Loan Combination.
“Aviare Place Apartments Mortgage” means the Mortgage securing the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Non-Serviced Companion Loan.
“Aviare Place Apartments Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-2” and identified as “Aviare Place Apartments” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the Aviare Place Apartments Non-Serviced Companion Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. The Aviare Place Apartments Mortgage Loan is a “Mortgage Loan.”
“Aviare Place Apartments Non-Serviced Companion Loan” means the promissory note designated as “Note A-1” that is not included in the Trust and is secured on a pari passu basis with the Aviare Place Apartments Mortgage Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. The Aviare Place Apartments Non-Serviced Companion Loan is not a “Mortgage Loan.”
“B Note” means (i) with respect to any A/B Whole Loan, any related subordinated note not included in the Trust, which is subordinated in right of payment to the related A Note to the extent set forth in the related Intercreditor Agreement and (ii) the Charles River Plaza North Non-Serviced B Note. The only B Notes related to any Mortgage Loans included in the Trust on the Closing Date are the Charles River Plaza North Non-Serviced B Note and the 200 Helen Street B Note (individually or collectively, as the context may require).
“Balloon Loan” means a Mortgage Loan, A/B Whole Loan or Loan Pair that provides for Scheduled Payments based on an amortization schedule that is significantly longer than its term to maturity and that is expected to have a remaining principal balance equal to or greater than 5% of its Cut-off Date Principal Balance as of its stated maturity date, unless prepaid prior thereto.
“Balloon Mortgage Loan” means a Mortgage Loan that is a Balloon Loan.
“Balloon Payment” means, with respect to any Balloon Loan (and any related Serviced B Note, Serviced Companion Loan or Non-Serviced Companion Loan), the Scheduled Payment payable on the Maturity Date of such Balloon Loan.
“BANA” has the meaning set forth in the Preliminary Statement hereto.
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“BANA Lender Successor Borrower Right” has the meaning set forth in Section 8.3(h) hereof.
“BANA Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on Schedule I hereto (or, with respect to any Joint Mortgage Loan, BANA’s pro rata share of such Joint Mortgage Loans based on BANA’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“Bankruptcy Loss” means a loss arising from a proceeding under the United States Bankruptcy Code or any other similar state law or other proceeding with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan, A/B Whole Loan or Loan Pair, including, without limitation, any Deficient Valuation Amount or losses, if any, resulting from any Debt Service Reduction Amount for the month in which the related Distribution Date occurs.
“Base Interest Fraction” means, with respect to any Principal Prepayment of any Mortgage Loan that provides for payment of a Prepayment Premium, and with respect to any Class of Principal Balance Certificates (other than the Control Eligible Certificates), a fraction (A) whose numerator is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on that Class of Certificates and (ii) the applicable Discount Rate and (B) whose denominator is the difference between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the applicable Discount Rate, provided that under no circumstances will the Base Interest Fraction be greater than one. If the Discount Rate referred to above is greater than or equal to the Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction will equal zero; provided that if the Discount Rate referred to above is greater than or equal to the Mortgage Rate on the related Mortgage Loan, but is less than the Pass-Through Rate on the subject Class of Principal Balance Certificates, then the Base Interest Fraction shall be equal to 1.0.
“Borrower Party” means (a) a borrower, a Mortgagor, a Manager or a foreclosing mezzanine lender, (b) any other Person controlling or controlled by or under common control with such borrower, Mortgagor, Manager or foreclosing mezzanine lender, as applicable, and (c) any other Person owning, directly or indirectly, twenty-five percent (25%) or more of the beneficial interests in such borrower, Mortgagor, Manager or foreclosing mezzanine lender, as applicable. For purposes of this definition, “foreclosing mezzanine lender” means a mezzanine lender that has accelerated the related mezzanine loan or commenced foreclosure proceedings against the equity collateral pledged to secure the related mezzanine loan. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Book-Entry Certificates” means any Certificates as to which ownership and transfer thereof shall be made through book entries as set forth in Section 3.7; provided, that after the occurrence of a condition whereupon book-entry registration and transfer are no longer authorized and Definitive Certificates are to be issued to the Certificate Owners, such certificates shall no longer be “Book-Entry Certificates.”
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“Business Day” means any day other than (i) a Saturday or a Sunday, (ii) a day on which the Federal Reserve or the New York Stock Exchange is closed, (iii) a legal holiday in New York, New York, Charlotte, North Carolina, Pittsburgh, Pennsylvania, Overland Park, Kansas, or any principal city (or cities) in which any of the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Master Servicer conducts servicing or trust operations or in which any such party’s corporate office or corporate trust office is located, or (iv) a day on which banking institutions or savings associations in New York, New York, Charlotte, North Carolina, Pittsburgh, Pennsylvania, Overland Park, Kansas, or any principal city (or cities) in which any of the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Master Servicer conducts servicing or trust operations or in which any such party’s corporate office or corporate trust office is located, are authorized or obligated by law or executive order to be closed.
“Calculation Rate” means a discount rate appropriate for the type of cash flows being discounted, namely: (A) for principal and interest payments on a Mortgage Loan, Serviced B Note or Serviced Companion Loan or from the sale of a Defaulted Loan, the higher of (1) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of the related Mortgagor as of such date of determination, and (2) the related Mortgage Rate based on its Unpaid Principal Balance; and (B) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.
“Cash Liquidation” means, as to any Defaulted Loan other than a Mortgage Loan with respect to which the related Mortgaged Property became REO Property, the sale of such Defaulted Loan for cash. The Master Servicer shall maintain records in accordance with the Servicing Standard (and, in the case of Specially Serviced Mortgage Loans, based solely on the written reports with respect to such Cash Liquidation delivered by the Special Servicer to the Master Servicer), of each Cash Liquidation.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.).
“Certificate Administrator” means U.S. Bank National Association and any successor or assign, as provided herein.
“Certificate Administrator Fee” means, with respect to each Mortgage Loan (including a Mortgage Loan if it relates to an REO Property or is a Defeasance Loan) for any related Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related Certificate Administrator Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan during such related Mortgage Loan Accrual Period; provided, that a portion of the Certificate Administrator Fee shall be applied to pay the Trustee Fee and the Custodian Fee.
“Certificate Administrator Fee Rate” means 0.0041% per annum, which rate includes the per annum rate applicable to calculation of the Trustee Fee and the Custodian Fee.
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“Certificate Administrator Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Certificate Administrator, the Depositor, the Initial Purchasers and the Underwriters, which agreement may be the same agreement as the Trustee Indemnification Agreement, if the Certificate Administrator and the Trustee are the same entity.
“Certificate Administrator’s Website” means the internet website of the Certificate Administrator, initially located at www.usbank.com/abs.
“Certificate Balance” means, with respect to any Principal Balance Certificate, as of any date or time of determination, the maximum specified dollar amount of principal to which the Holder of such Certificate is then entitled hereunder, such amount being equal to the initial principal amount set forth on the face of such Certificate (in the case of a Certificate), minus (a)(i) the amount of all principal distributions previously made pursuant to Section 6.5(a), (ii) all Collateral Support Deficits allocated pursuant to Section 6.6, and (iii) any Excess Trust Advisor Expenses allocated pursuant to Section 6.11, in each case with respect to such Certificate in reduction of its Certificate Balance, plus (b) any prior increase in the Certificate Balance of such Certificate attributable to the amounts identified in clause (I)(C) of the definition of “Principal Distribution Amount” with respect to any Distribution Date, plus (c) any prior increase in the Certificate Balance of such Certificate pursuant to Section 6.11 in connection with the allocation of Actual Recoveries of Trust Advisor Expenses. On each Distribution Date, prior to any distributions being made on such Distribution Date, the Certificate Balances of the Principal Balance Certificates will be increased by the aggregate of the amounts identified in clause (I)(C) of the definition of “Principal Distribution Amount” for such Distribution Date, such increase to be allocated to the respective Classes of the Principal Balance Certificates in descending sequential order of payment priority (i.e., to the most senior such Class first), in each case up to, and in reduction of, the amount of Collateral Support Deficits previously allocated thereto and not otherwise reimbursed hereunder. Any such increase in the Certificate Balances of the Principal Balance Certificates of any particular Class thereof shall, in turn, be allocable among such Principal Balance Certificates on a pro rata basis in accordance with their respective initial Certificate Balances.
“Certificate Owner” means, with respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Book-Entry Certificate, as may be reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Certificate Register” has the meaning set forth in Section 3.2.
“Certificate Registrar” means the registrar appointed pursuant to Section 3.2, which initially shall be the Certificate Administrator.
“Certificateholders” has the meaning set forth in the definition of “Holder.”
“Certificates” means, collectively, the REMIC III Regular Certificates and the Class V and Class R Certificates.
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“Certification Parties” has the meaning set forth in Section 13.6 and shall also include such parties in an Other Securitization.
“Certifying Certificateholder” means a Certificateholder or Certificate Owner that has provided the Certificate Administrator with an executed Investor Certification.
“Certifying Person” has the meaning set forth in Section 13.6.
“Certifying Servicer” has the meaning set forth in Section 13.9.
“Charles River Plaza North Directing Holder” means the “Controlling Note Holder” or any analogous concept under the Charles River Plaza North Intercreditor Agreement.
“Charles River Plaza North Intercreditor Agreement” means the intercreditor, co-lender or comparable agreements between the initial holders of the promissory notes comprising the Charles River Plaza North Non-Serviced Loan Combination.
“Charles River Plaza North Mortgage” means the Mortgage securing the Charles River Plaza North Mortgage Loan, the Charles River Plaza North Non-Serviced Companion Loans and the Charles River Plaza North Non-Serviced B Note.
“Charles River Plaza North Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-3-1” and identified as “Charles River Plaza North” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the Charles River Plaza North Non-Serviced Companion Loans to the extent set forth in the Charles River Plaza North Intercreditor Agreement and that is, together with the Charles River Plaza North Non-Serviced Companion Loans, generally senior in right of payment to the Charles River Plaza North Non-Serviced B Note to the extent set forth in the Charles River Plaza North Intercreditor Agreement. The Charles River Plaza North Mortgage Loan is a “Mortgage Loan.”
“Charles River Plaza North Non-Serviced B Note” means the promissory notes designated as “Note B” that is generally subordinate in right of payment to the Charles River Plaza North Mortgage Loan and the Charles River Plaza North Non-Serviced Companion Loans to the extent provided in the Charles River Plaza North Intercreditor Agreement. The Charles River Plaza North Non-Serviced B Note is not a “Mortgage Loan” and is not included in the Trust.
“Charles River Plaza North Non-Serviced Companion Loans” means the promissory notes designated as “Note A-1”, “Note A-2” and “Note A-3-2” that are not included in the Trust and that is pari passu in right of payment with the Charles River Plaza North Mortgage Loan to the extent set forth in the Charles River Plaza North Intercreditor Agreement and that are, together with the Charles River Plaza North Mortgage Loan, generally senior in right of payment to the Charles River Plaza North Non-Serviced B Note to the extent set forth in the Charles River Plaza North Intercreditor Agreement. Neither of the Charles River Plaza North Non-Serviced Companion Loans is a “Mortgage Loan.”
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“Charles River Plaza North Non-Serviced Loan Combination” means, collectively, the Charles River Plaza North Mortgage Loan, the Charles River Plaza North Non-Serviced Companion Loans and the Charles River Plaza North Non-Serviced B Note.
“Class” means all Certificates bearing the same alphabetic or alphanumeric class designation.
“Class A Senior Certificates” means the Class A-1 Certificates, the Class A-SB Certificates, the Class A-3 Certificates and the Class A-4 Certificates.
“Class A-1 Certificates”, “Class A-SB Certificates”, “Class A-3 Certificates”, “Class A-4 Certificates”, “Class A-S Certificates”, “Class X-A Certificates”, “Class X-B Certificates”, “Class X-D Certificates”, “Class X-E Certificates”, “Class X-FG Certificates”, “Class X-NR Certificates”, “Class B Certificates”, “Class C Certificates”, “Class D Certificates”, “Class E Certificates”, “Class F Certificates”, “Class G Certificates”, “Class H Certificates”, “Class V Certificates” and “Class R Certificates” mean, in each such case, the Certificates designated as “Class A-1”, “Class A-SB”, “Class A-3”, “Class A-4”, “Class A-S”, “Class X-A”, “Class X-B”, “Class X-D”, “Class X-E”, “Class X-FG”, “Class X-NR”, “Class B”, “Class C”, “Class D”, “Class E”, “Class F”, “Class G”, “Class H”, “Class V” and “Class R”, respectively, on the face thereof, in substantially the forms attached hereto as Exhibits A-1 to A-20.
“Class V Specific Grantor Trust Assets” means that portion of the Trust consisting of any Excess Interest (whether now or hereafter arising) and the Excess Interest Sub-account.
“Class X Certificate” means any Class X-A Certificate, Class X-B Certificate, Class X-D Certificate, Class X-E Certificate, Class X-FG Certificate or Class X-NR Certificate.
“Class X-A REMIC III Regular Interest” means any of REMIC III Regular Interest X-A-1, REMIC III Regular Interest X-A-SB, REMIC III Regular Interest X-A-3 and REMIC III Regular Interest X-A-4. The Class X-A REMIC III Regular Interests relate to, and are evidenced by, the Class X-A Certificates.
“Class X-B REMIC III Regular Interest” means REMIC III Regular Interest X-A-S. The Class X-A-S REMIC III Regular Interest relates to, and is evidenced by, the Class X-A-S Certificates.
“Class X-D REMIC III Regular Interest” means REMIC III Regular Interest X-D. The Class X-D REMIC III Regular Interest relates to, and is evidenced by, the Class X-D Certificates.
“Class X-E REMIC III Regular Interest” means REMIC III Regular Interest X-E. The Class X-E REMIC III Regular Interest relates to, and is evidenced by, the Class X-E Certificates.
“Class X-FG REMIC III Regular Interest” means any of REMIC III Regular Interest X-F and REMIC III Regular Interest X-G. The Class X-FG REMIC III Regular Interests relate to, and are evidenced by, the Class X-FG Certificates.
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“Class X-NR REMIC III Regular Interest” means REMIC III Regular Interest X-H. The Class X-NR REMIC III Regular Interest relates to, and is evidenced by, the Class X-NR Certificates.
“Class X REMIC III Regular Interest” means any Class X-A REMIC III Regular Interest, Class X-B REMIC III Regular, Class X-D REMIC III Regular Interest, Class X-E REMIC III Regular Interest, Class X-FG REMIC III Regular Interest or Class X-NR REMIC III Regular Interest.
“Class X Strip Rate” means, with respect to any REMIC II Regular Interest for any Distribution Date, the excess, if any, of the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over the Pass-Through Rate for the Class of Corresponding Certificates.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act, which initially shall be the Depository.
“Clearstream Bank” means Clearstream Banking, société anonyme.
“Closing Date” means September 24, 2015.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form and proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust.
“Collateral Support Deficit” means:
(a) with respect to any REMIC I Regular Interest, as of any Distribution Date, following the deemed distributions with respect to such REMIC I Regular Interest on such Distribution Date pursuant to Section 6.3(a), but prior to any reduction in the REMIC I Principal Amount of such REMIC I Regular Interest on such Distribution Date pursuant to Section 6.6(a), the amount, if any, by which (i) the then Stated Principal Balance of the Mortgage Loan (including an REO Mortgage Loan) as to which such REMIC I Regular Interest is the Corresponding REMIC I Regular Interest, is less than (ii) the then REMIC I Principal Amount of such REMIC I Regular Interest;
(b) with respect to the REMIC II Regular Interests, as of any Distribution Date, following any deemed allocations of Trust Advisor Expenses to REMIC II Regular Interest A-1, REMIC II Regular Interest A-SB, REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest A-S, REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II Regular Interest D on such Distribution Date pursuant to Section 6.11 and the deemed distributions with respect to the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.4, but prior to any reduction in the REMIC II Principal Amounts of the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.6(b), the amount, if any, by which (i) the then Aggregate Stated Principal Balance of the Mortgage Loans (including
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any REO Mortgage Loan) (for purposes of this calculation only, not giving effect to any reductions of such Aggregate Stated Principal Balance for principal payments received on the Mortgage Loans (including any REO Mortgage Loan) that were used to reimburse the Master Servicer, the Special Servicer or the Trustee from general collections of principal on the Mortgage Loans (including any REO Mortgage Loan) for Workout-Delayed Reimbursement Amounts, to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances), is less than (ii) the then aggregate REMIC II Principal Amount of the REMIC II Regular Interests; and
(c) with respect to the Principal Balance Certificates, as of any Distribution Date, following any allocations of Trust Advisor Expenses to the Class A Senior Certificates and the Class A-S, Class B, Class C and Class D Certificates on such Distribution Date pursuant to Section 6.11 and the distributions with respect to the Principal Balance Certificates on such Distribution Date pursuant to Section 6.5, but prior to any reduction in the respective Certificate Balances of the Principal Balance Certificates on such Distribution Date pursuant to Section 6.6(c), the amount, if any, by which (i) the then Aggregate Stated Principal Balance of the Mortgage Loans (including any REO Mortgage Loans) (for purposes of this calculation only, not giving effect to any reductions of the Aggregate Stated Principal Balance for principal payments received on the Mortgage Loans (including REO Mortgage Loans) that were used to reimburse the Master Servicer, the Special Servicer or the Trustee from general collections of principal on the Mortgage Loans (including REO Mortgage Loans) for Workout-Delayed Reimbursement Amounts, to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances), is less than (ii) the then Aggregate Certificate Balance of the Principal Balance Certificates.
“Collection Account” means one or more separate accounts established and maintained by the Master Servicer (or any Sub-Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a).
“Collection Period” means, with respect to any Distribution Date, the period beginning on the day after the Determination Date in the month preceding the month of such Distribution Date (or, in the case of the first (1st) Distribution Date, commencing immediately following the Cut-off Date) and ending on the Determination Date in the month in which the Distribution Date occurs.
“Collective Consultation Period” means any period when both (i) the Aggregate Certificate Balance of the Class E Certificates, as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9, is less than 25% of the initial Aggregate Certificate Balance of the Class E Certificates and (ii) the Aggregate Certificate Balance of the Class E Certificates, without regard to any Appraisal Reductions allocable to such Class in accordance with Section 6.9, is at least 25% of the initial Aggregate Certificate Balance of the Class E Certificates.
“Commission” means the U.S. Securities and Exchange Commission.
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“Compensating Interest” means with respect to any Distribution Date, an amount equal to the lesser of (A) the excess, if any, of (i) Prepayment Interest Shortfalls incurred during the related Collection Period in respect of all Mortgage Loans (and not in respect of any B Note, any Serviced Companion Loan, any Non-Serviced Companion Loan, any Specially Serviced Mortgage Loan or any Mortgage Loan that was previously a Specially Serviced Mortgage Loan with respect to which the Special Servicer has waived or amended the prepayment restrictions) resulting from voluntary or involuntary Principal Prepayments made thereon over (ii) the aggregate of Prepayment Interest Excesses resulting from Principal Prepayments on such Mortgage Loans collected during the related Collection Period and (B) the aggregate of the portion of the aggregate Master Servicing Fee accrued at a rate per annum equal to 0.0025% (0.25 basis points) for the related Collection Period calculated in respect of such Mortgage Loans (including any related REO Mortgage Loans), plus any investment income earned on the amount prepaid prior to such Distribution Date; provided that Compensating Interest shall only include (without regard to clause (B) above), the amount of any Prepayment Interest Shortfall otherwise described in clause (A) above incurred in connection with any Principal Prepayment received in respect of any such Mortgage Loan during the related Collection Period to the extent such Prepayment Interest Shortfall occurs as a result of the Master Servicer deviating, or allowing the related Mortgagor to deviate, from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (v) subsequent to a default or imminent default under the related Mortgage Loan documents if the Master Servicer reasonably believes that acceptance of such prepayment is consistent with the Servicing Standard, (w) if the related Mortgage Loan is a Specially Serviced Mortgage Loan, (x) in connection with the payment of Insurance Proceeds or Condemnation Proceeds unless the Master Servicer did not apply the proceeds thereof in accordance with the terms of the related Mortgage Loan documents, (y) pursuant to applicable law or a court order or (z) at the request of or with the consent of the Special Servicer). For the avoidance of doubt, no Repurchased Loan shall be included as a Mortgage Loan for purposes of computing the amount of Compensating Interest. The Master Servicer’s obligations to pay any Compensating Interest, and the rights of the Certificateholders to offset of the aggregate Prepayment Interest Shortfalls against those amounts, shall not be cumulative.
“Condemnation Proceeds” means any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to a Mortgaged Property by or to any governmental, quasi-governmental authority or private entity with condemnation powers other than amounts to be applied to the restoration, preservation or repair of such Mortgaged Property or released to the related Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable) its related Serviced B Note or Serviced Companion Loan. With respect to any Mortgaged Property securing any A/B Whole Loan or Loan Pair, only an allocable portion of such Condemnation Proceeds shall be distributable to the Certificateholders. With respect to the Mortgaged Property securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Condemnation Proceeds.
“Consent Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any and all fees actually paid by a Mortgagor with respect to any consent or approval required pursuant to the terms of the related Mortgage Loan documents that does not involve a restructuring, modification, assumption, extension, waiver or amendment of the terms of such Mortgage Loan documents.
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“Control Eligible Certificates” means any of the Class E, Class F, Class G and Class H Certificates.
“Controlling Class” means, as of any time of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has an Aggregate Certificate Balance (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) at least equal to 25% of the initial Aggregate Certificate Balance of such Class; provided that if no Class of Control Eligible Certificates has an Aggregate Certificate Balance (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) at least equal to 25% of the initial Aggregate Certificate Balance of such Class, then the Controlling Class shall be the most senior Class of Control Eligible Certificates. The Controlling Class as of the Closing Date will be the Class H Certificates.
“Controlling Class Certificateholder” means each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar from time to time.
“Controlling Class Representative” means the Controlling Class Certificateholder (or other representative) selected or designated, as applicable, in accordance with Section 10.1. For the avoidance of doubt, there will be no Controlling Class Representative with respect to any Excluded Mortgage Loan (for so long as such Mortgage Loan is an Excluded Mortgage Loan).
“Controlling Person” means, with respect to any Person, any other Person who “controls” such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
“Corporate Trust Office” means the principal corporate trust office of the Trustee and Certificate Administrator, presently located at 190 S. LaSalle Street, 7th Floor, Mail Code MK-IL-SL7C, Chicago, Illinois 60603, Attention: BACM 2015-UBS7, and the office of the Certificate Administrator located, for certificate transfer purposes, at 111 Fillmore Avenue, St. Paul, Minnesota 55107, Attention: Bondholder Services – BACM 2015-UBS7, or with respect to the Custodian, the office of the Custodian located at 1133 Rankin Street, Suite 100, St. Paul, Minnesota 55116, Attention: Document Custody Services – BACM 2015-UBS7; or at such other address as the Trustee, Certificate Administrator or Custodian, as applicable, may designate from time to time by notice to the Certificateholders and each of the other Parties to this Agreement.
“Corresponding Certificates” means the Class of Principal Balance Certificates designated as such in the Preliminary Statement with respect to any REMIC II Regular Interest.
“Corresponding Class X REMIC III Regular Interest” means the Class X REMIC III Regular Interest designated as such in the Preliminary Statement with respect to any REMIC II Regular Interest.
“Corresponding REMIC I Regular Interest” means the REMIC I Regular Interest that relates to any particular Mortgage Loan (including an REO Mortgage Loan or Qualifying Substitute Mortgage Loan that replaces such Mortgage Loan), which REMIC I Regular Interest has the characteristics described in the Preliminary Statement.
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“Corresponding REMIC II Regular Interest” means the REMIC II Regular Interest or one of the REMIC II Regular Interests, as applicable, designated as such in the Preliminary Statement with respect to any Class of Principal Balance Certificates, any Class of Class X Certificates or any Class X REMIC III Regular Interest.
“CREFC®” means the CRE Finance Council®, formerly known as Commercial Mortgage Securities Association, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC®” shall be deemed to refer to such other association or organization as may exist whose principal membership consists of servicers, trustees, certificateholders, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and whose principal purpose is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC®” shall be deemed to refer to such other association or organization as shall be selected by the Master Servicer and reasonably acceptable to the Trustee, the Certificate Administrator, the Special Servicer and, during any Subordinate Control Period, the Controlling Class Representative.
“CREFC® Advance Recovery Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Bond Level File” means the data file (prepared by the Certificate Administrator) substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Collateral Summary File” means the data file (prepared by the Certificate Administrator) substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Comparative Financial Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Comparative Financial Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and
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containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Delinquent Loan Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Financial File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Historical Loan Modification and Corrected Mortgage Loan Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification and Corrected Mortgage Loan Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Investor Reporting Package (IRP)” means:
(a) The following seven (7) electronic files (and any other files as may become adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Loan Setup File, (ii) CREFC® Loan Periodic Update File, (iii) CREFC® Property File, (iv) CREFC® Bond Level File, (v) CREFC® Financial File, (vi) CREFC® Collateral Summary File and (vii) CREFC® Special Servicer Loan File;
(b) The following eleven supplemental reports (and any other reports as may become adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Delinquent Loan Status Report, (ii) CREFC® Historical Loan Modification and Corrected Mortgage Loan Report, (iii) CREFC® REO Status Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® Comparative Financial Status Report, (vi) CREFC® Servicer Watch List, (vii) CREFC® Loan Level Reserve/LOC Report, (viii) CREFC® NOI Adjustment Worksheet, (ix) CREFC® Advance Recovery Report, (x) CREFC® Total Loan Report and (xi) CREFC® Reconciliation of Funds Report; and
(c) such other reports as CREFC® may designate from time to time.
“CREFC® License Fee” means, with respect to each Mortgage Loan (including a Mortgage Loan that relates to an REO Property or is a Defeasance Loan) for any related
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Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related CREFC® License Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan during such related Mortgage Loan Accrual Period. Any payments of the CREFC® License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC® to the Master Servicer in writing):
Account Name: Commercial Real Estate
Finance Council (CREFC)
Bank Name: JPMorgan Chase Bank, National Association
Bank Address: 80 Broadway, New York, NY 10005
Routing Number: 021000021
Account Number: 213597397
“CREFC® License Fee Rate” means 0.0005% per annum.
“CREFC® Loan Level Reserve/LOC Report” means the monthly report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Loan Periodic Update File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Periodic Update File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Loan Setup File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® NOI Adjustment Worksheet” means a report prepared by the Master Servicer with respect to all the Non-Specially Serviced Mortgage Loans, and by the Special Servicer with respect to Specially Serviced Mortgage Loans and, if they relate to any REO Property or REO Mortgage Loans, which report shall be substantially in the form of, and contain the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
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“CREFC® Operating Statement Analysis Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Property File” means a data file substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Reconciliation of Funds Report” means a monthly report (prepared by the Certificate Administrator) in the “Reconciliation of Funds” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® REO Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Reports” means the reports and files comprising the CREFC® Investor Reporting Package (IRP), as the forms thereof are modified, expanded or otherwise changed from time to time by the CREFC®.
“CREFC® Servicer Watch List” means, as of each Determination Date, a report (prepared by the Master Servicer), including and identifying each Non-Specially Serviced Mortgage Loan satisfying the “CREFC® Portfolio Review Guidelines” approved from time to time by the CREFC® in the “CREFC® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Special Servicer Loan File” means the report (prepared by the Special Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
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“CREFC® Total Loan Report” means the monthly report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Website” means the CREFC®’s Website located at www.crefc.org or such other primary website as the CREFC® may establish for dissemination of its report forms.
“Crossed Mortgage Loan” has the meaning set forth in Section 2.3(a).
“CSAIL 2015-C3 Pooling and Servicing Agreement” means the Pooling and Servicing Agreement, dated as of August 1, 2015, between Credit Suisse First Boston Mortgage Securities Corp., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, Rialto Capital Advisors, LLC, as special servicer, Pentalpha Surveillance LLC, as operating advisor, Wells Fargo Bank, National Association, as certificate administrator, and Wells Fargo Bank, National Association, as trustee.
“Custodial Account” means (i) with respect to any Serviced B Note, the related A/B Whole Loan Custodial Account and (ii) with respect to any Serviced Companion Loan, the related Serviced Companion Loan Custodial Account.
“Custodian” means U.S. Bank National Association and any successor or assign, as provided herein.
“Custodian Fee” means the portion of the Certificate Administrator Fee payable to the Custodian in an amount agreed to between the Custodian and the Certificate Administrator.
“Custodian Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Custodian, the Depositor, the Initial Purchasers and the Underwriters.
“Customer” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Cut-off Date” means the close of business on September 1, 2015. The Cut-off Date for any Mortgage Loan that has a Due Date on a date other than the first (1st) day of each month shall be the close of business on September 1, 2015, and for purposes of determining amounts allocable to the related Seller, Scheduled Payments due in September 2015 with respect to Mortgage Loans not having Due Dates on the first (1st) of each month have been deemed due and received on September 1, 2015, not the actual day or days on which such Scheduled Payments were due.
“Cut-off Date Principal Balance” means, with respect to any Mortgage Loan, Serviced B Note, A/B Whole Loan, Serviced Companion Loan or Loan Pair, the unpaid principal
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balance thereof as of its Due Date in September 2015, after application of all payments of principal due on or before such date, whether or not received.
“DBRS” means DBRS, Inc. or its successors in interest. If neither such rating agency nor any successor remains in existence, “DBRS” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Debt Service Coverage Ratio” means, with respect to any Mortgage Loan, as of any date of determination and for any period, the amount calculated for such date of determination in accordance with the formulas set forth in the CREFC® Operating Statement Analysis Report, whether or not the Mortgage Loan has an interest-only period that has not expired as of the Cut-off Date.
“Debt Service Reduction Amount” means, with respect to a Due Date and the related Determination Date, the amount of the reduction of the Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with respect to a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note as a result of any proceeding under bankruptcy law or any similar proceeding (other than a Deficient Valuation Amount); provided, that in the case of an amount that is deferred, but not forgiven, such reduction shall include only the net present value (calculated at the related Mortgage Rate) of the reduction.
“Default Interest” means, with respect to any Mortgage Loan, A/B Whole Loan, REO Mortgage Loan or Loan Pair, all interest accrued in respect of such Mortgage Loan, A/B Whole Loan or Loan Pair as provided in the related Mortgage Loan documents as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate and, in the case of an ARD Loan after its Anticipated Repayment Date, the per annum rate at which Excess Interest (or the equivalent) accrues, but excluding any such amounts allocable to a Non-Serviced Mortgage Loan and related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement.
“Defaulted Loan” means a Mortgage Loan (other than any Non-Serviced Mortgage Loan) (i) if it is delinquent at least thirty (30) days in respect of its Scheduled Payments or delinquent in respect of its Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any grace period permitted by the related Mortgage Loan documents and without regard to any acceleration of payments under the related Mortgage Loan documents or (ii) as to which the Master Servicer or Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note.
“Defeasance Collateral” means, with respect to any Defeasance Loan, the Government Securities required to be pledged in lieu of prepayment pursuant to the terms thereof.
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“Defeasance Loan” means any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note which requires or permits the related Mortgagor (or permits the holder of such Mortgage Loan, Serviced Companion Loan or Serviced B Note to require the related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
“Defective Mortgage Loan” has the meaning set forth in Section 2.3(a).
“Deficient Exchange Act Deliverable” means, with respect to the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Sub-Servicer retained by it (other than a Seller Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XIII of this Agreement that does not conform to the express provisions of the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.
“Deficient Valuation” means, with respect to any Mortgage Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Whole Loan or any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged Property (or, with respect to a Non-Serviced Mortgage Loan, the pro rata portion of the valuation allocable to such Non-Serviced Mortgage Loan) relating to such Mortgage Loan, A/B Whole Loan or Loan Pair in an amount less than the then outstanding indebtedness under such Mortgage Loan, A/B Whole Loan or Loan Pair, which valuation results from a proceeding initiated under the United States Bankruptcy Code, as amended from time to time, and that reduces the amount the Mortgagor is required to pay under such Mortgage Loan, A/B Whole Loan or Loan Pair.
“Deficient Valuation Amount” means (i) with respect to each Mortgage Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Whole Loan or any Loan Pair, the amount by which the total amount due with respect to such Mortgage Loan, A/B Whole Loan or Loan Pair (excluding interest not yet accrued), including the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair plus any accrued and unpaid interest thereon and any other amounts recoverable from the Mortgagor with respect thereto pursuant to the terms thereof, is reduced in connection with a Deficient Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage Loan, the portion of any Deficient Valuation Amount for the related A/B Whole Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or Serviced Pari Passu Mortgage Loan, as applicable, under the related Intercreditor Agreement.
“Definitive Certificates” means Certificates of any Class issued in definitive, fully registered, certificated form without interest coupons.
“Deleted Mortgage Loan” means a Mortgage Loan which is repurchased from the Trust pursuant to the terms hereof or as to which one or more Qualifying Substitute Mortgage Loans are substituted.
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“Demand” means any request or demand to repurchase or replace a Mortgage Loan for a breach of representation or warranty or document deficiency.
“Depository” means The Depository Trust Company or its successor in interest.
“Depository Agreement” means the Letter of Representations dated the Closing Date and by and among the Depositor, the Certificate Administrator and the Depository.
“Determination Date” means the eleventh (11th) calendar day of each month or, if such day is not a Business Day, the next succeeding Business Day, commencing in October 2015.
“Directly Operate” means, with respect to any REO Property, the furnishing or rendering of services to the tenants thereof that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for sale to customers in the ordinary course of a trade or business or any use of such REO Property in a trade or business conducted by the Trust, or the performance of any construction work on the REO Property (other than the completion of a building or improvement, where more than 10% of the construction of such building or improvement was completed before default became imminent), other than through an Independent Contractor; provided that the Special Servicer, on behalf of the Trust, shall not be considered to Directly Operate an REO Property solely because the Special Servicer, on behalf of the Trust, establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
“Disclosable Special Servicer Fees” means, with respect to any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Borrower, any Manager, any guarantor or indemnitor in respect of a Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property and any purchaser of any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (or Loan Pair or A/B Whole Loan, if applicable), the management or disposition of any REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the Special Servicer is entitled pursuant to this Agreement including but not limited to Section 9.11.
“Discount Rate” means, for the purposes of the distribution of Prepayment Premiums, (i) if a discount rate was used in the calculation of the applicable Prepayment Premium pursuant to the terms of the related Mortgage Loan, that discount rate, converted (if necessary) to a monthly equivalent yield, and (ii) if a discount rate was not used in the calculation of the applicable Prepayment Premium pursuant to the terms of the related Mortgage
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Loan, the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi-annually. “Treasury Rate” is the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15–Selected Interest Rates under the heading “U.S. government securities/Treasury constant maturities” for the week ending prior to the date of the relevant Principal Prepayment, of U.S. Treasury constant maturities with a maturity date, one longer and one shorter, most nearly approximating the maturity date (or Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer published, the Certificate Administrator will select a comparable publication to determine the Treasury Rate.
“Dispute” means, with respect to any Demand, any disagreement (whether oral or in writing) between the applicable Request Recipient and the Person making such Demand whether to pursue or act in accordance with, as applicable, such Demand.
“Disqualified Organization” means any of (i) the United States, any State or any political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization or any agency or instrumentality of either of the foregoing, (iii) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code, and (v) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel that the holding of an ownership interest in a Class R Certificate by such Person may cause (A) any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that the Certificates are outstanding, or (B) any of REMIC I, REMIC II or REMIC III or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.
“Distributable Certificate Interest” means, with respect to any Class of REMIC III Regular Certificates for any Distribution Date, the sum of: (A) Accrued Certificate Interest in respect of such Class for such Distribution Date, reduced (to not less than zero) by (1) any Net Aggregate Prepayment Interest Shortfall allocated on such Distribution Date to such Class pursuant to Section 6.7, (2) with respect to each Class of the Class B, Class C and Class D Certificates, any Trust Advisor Expenses allocated on such Distribution Date to such Class in reduction of the Distributable Certificate Interest thereon pursuant to Section 6.11, and (3) with respect to each Class of Class C and Class D Certificates, any amounts reimbursable in accordance with Section 6.11, out of amounts otherwise distributable as interest in respect of such Class, to any more senior Class of Certificates on such Distribution Date in respect of Trust Advisor Expenses allocated on prior Distribution Dates to such more senior Class of Certificates pursuant to Section 6.11, plus (B) if such Distribution Date is subsequent to the initial Distribution Date, any Unpaid Interest in respect of such Class for such Distribution Date, plus
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(C) in the case of a Class of Principal Balance Certificates, if the Aggregate Certificate Balance of such Class of Certificates, is increased on such Distribution Date in accordance with clause (b) of the definition of “Certificate Balance”, the total amount of interest at the applicable Pass-Through Rate that would have accrued and been distributable with respect to the amount by which the related Aggregate Certificate Balance of such Class of Certificates was so increased, if such Aggregate Certificate Balance of such Class of Certificates had not been reduced by that amount in connection with the allocation of Collateral Support Deficits in the first place, and assuming that any reinstatements of the Aggregate Certificate Balance of such Class of Certificates are in reverse order of the original reductions therein, plus (D) in the case of each Class of the Class B, Class C and Class D Certificates, the amount of any Actual Recoveries of Trust Advisor Expenses allocated in accordance with Section 6.11 to such Class of Certificates to increase the Distributable Certificate Interest thereof for such Distribution Date, plus (E) in the case of each Class of the Class B and Class C Certificates, any amounts reimbursed in accordance with Section 6.11 to such Class of Certificates by any more junior Class of Certificates on such Distribution Date in respect of Trust Advisor Expenses allocated on prior Distribution Dates to the subject Class of Certificates pursuant to Section 6.11. Any increase in the Distributable Certificate Interest with respect to any Class of Principal Balance Certificates for any Distribution Date pursuant to clause (C) of the prior sentence shall result in a corresponding reduction of interest payable on unreimbursed allocations of Collateral Support Deficits in respect of such Class of Principal Balance Certificates.
“Distributable Interest” means, with respect to any REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest for any Distribution Date, the sum of (A) Accrued Interest in respect of such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, for such Distribution Date, reduced (to not less than zero) by (1) any Net Aggregate Prepayment Interest Shortfall allocated on such Distribution Date to such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, pursuant to Section 6.7, (2) in the case of each of REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II Regular Interest D, the aggregate amount in respect of the Class of Principal Balance Certificates with the same alphabetic designation for such Distribution Date described in clause (A)(2) and clause (A)(3) of the definition of “Distributable Certificate Interest” and (3) in the case of the Class X-D REMIC III Regular Interest, the aggregate amount in respect of the Class X-D Certificates for such Distribution Date described in clause (A)(2) and clause (A)(3) of the definition of “Distributable Certificate Interest”, plus (B) if such Distribution Date is subsequent to the initial Distribution Date, any Unpaid Interest in respect of such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, for such Distribution Date, plus (C) in the case of a REMIC II Regular Interest, if the REMIC II Principal Amount of such REMIC II Regular Interest is increased on such Distribution Date in accordance with the definition of “REMIC II Principal Amount” in conjunction with an increase in the Aggregate Certificate Balance of the Class of Corresponding Certificates, the total amount of interest at the applicable Pass-Through Rate that would have accrued and been distributable with respect to the amount by which the related REMIC II Principal Amount was so increased, if such REMIC II Principal Amount had not been reduced by that amount in connection with the allocation of Collateral Support Deficits in the first place and assuming that the reinstatement of REMIC II Principal Amount is in reverse order of the original reductions therein, plus (D) in the case of each of REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II
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Regular Interest D, the aggregate amount in respect thereof (or in respect of the Class of Corresponding Certificates) for such Distribution Date described in clause (D) and clause (E) of the definition of “Distributable Certificate Interest”, plus (E) in the case of the Class X-D REMIC III Regular Interest, the aggregate amount in respect thereof for such Distribution Date described in clause (D) of the definition of “Distributable Certificate Interest”. Any increase in the Distributable Interest with respect to any REMIC II Regular Interest for any Distribution Date pursuant to clause (C) of the prior sentence shall result in a corresponding reduction of interest payable on unreimbursed allocations of Collateral Support Deficits in respect of such REMIC II Regular Interest.
“Distribution Account” means, collectively, the Distribution Account maintained by the Certificate Administrator on behalf of the Trustee, in accordance with the provisions of Section 5.3 and the Excess Interest Sub-Account.
“Distribution Date” means, with respect to any Determination Date, the fourth (4th) Business Day after the related Determination Date, commencing in October 2015. The first Distribution Date shall be October 19, 2015.
“Distribution Date Statement” means, with respect to any Distribution Date, a report substantially in the form of Exhibit K attached hereto, setting forth, among other things, the following information:
(a) the amount of the distribution on such Distribution Date to the Holders of each Class of Principal Balance Certificates in reduction of the Aggregate Certificate Balance of such Class of Certificates;
(b) the amount of the distribution on such Distribution Date to the Holders of each Class of REMIC III Regular Certificates allocable to the interest distributable on such Class of Certificates;
(c) the aggregate amount of P&I Advances made in respect of the Mortgage Loans (including REO Mortgage Loans) for such Distribution Date;
(d) the aggregate amount of compensation paid to the Certificate Administrator, Trustee, Custodian and the Trust Advisor, and servicing compensation paid to the Master Servicer and the Special Servicer, in respect of the related Distribution Date;
(e) the aggregate Stated Principal Balance of the Mortgage Loans (including REO Mortgage Loans) outstanding immediately before and immediately after such Distribution Date;
(f) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans (excluding REO Mortgage Loans) as of the end of the related Collection Period;
(g) (i) the number and aggregate principal balance of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent ninety (90) days or
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more and (D) current but specially serviced or in foreclosure but not an REO Property and (ii) the information described in Item 1100(b)(5) of Regulation AB to the extent material;
(h) the value of any REO Property included in the Trust Fund as of the end of the related Collection Period, on a loan-by-loan basis, based on the most recent appraisal or valuation;
(i) the Available Distribution Amount for such Distribution Date;
(j) the amount of the distribution on such Distribution Date to the Holders of any Class of REMIC III Regular Certificates allocable to Prepayment Premiums;
(k) the total Distributable Certificate Interest for each Class of Certificates for such Distribution Date, whether or not paid;
(l) the Pass-Through Rate in effect for each Class of REMIC III Regular Certificates for such Distribution Date;
(m) the Principal Distribution Amount for such Distribution Date, separately setting forth the portion thereof that represents scheduled principal and the portion thereof representing prepayments and other unscheduled collections in respect of principal;
(n) the Aggregate Certificate Balance or Notional Amount, as the case may be, of each Class of REMIC III Regular Certificates immediately before and immediately after such Distribution Date, separately identifying any reduction in these amounts as a result of the allocation of Collateral Support Deficit and Excess Trust Advisor Expenses;
(o) the amount of any Appraisal Reductions in effect as of such Distribution Date on a loan-by-loan basis and the aggregate amount of Appraisal Reductions as of such Distribution Date;
(p) the number and aggregate principal balance of any Mortgage Loans extended or modified during the related Collection Period on a loan-by-loan basis;
(q) the amount of any remaining unpaid Distributable Certificate Interest for each Class of Certificates (other than the Class V and Class R Certificates); and, in the case of the Class B, Class C and Class D Certificates, any unreimbursed interest shortfalls for such Class of Certificates resulting from the allocation of Trust Advisor Expenses, as of the close of business on such Distribution Date;
(r) a loan-by-loan listing of each Mortgage Loan which was the subject of a Principal Prepayment during the related Collection Period and the amount of such Principal Prepayment occurring;
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(s) the amount of the distribution on such Distribution Date to the Holders of each Class of Principal Balance Certificates in reimbursement of Collateral Support Deficits and Trust Advisor Expenses previously allocated thereto;
(t) the aggregate Unpaid Principal Balance of the Mortgage Loans (including REO Mortgage Loans) outstanding as of the close of business on the related Determination Date;
(u) with respect to any Mortgage Loan as to which a Final Recovery Determination was made during the related Collection Period (other than through a payment in full), (A) the loan number thereof, (B) the aggregate of all Liquidation Proceeds which are included in the Available Distribution Amount and other amounts received in connection with the Final Recovery Determination (separately identifying the portion thereof allocable to distributions on the Certificates), and (C) the amount of any Realized Loss attributable to the Final Recovery Determination;
(v) with respect to any REO Property as to which a Final Recovery Determination was made during the related Collection Period, (A) the loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Certificates), and (C) the amount of any Realized Loss attributable to the related REO Mortgage Loan in connection with that determination;
(w) the aggregate amount of interest on P&I Advances in respect of the Mortgage Loans paid to the Master Servicer and/or the Trustee since the prior Distribution Date;
(x) the aggregate amount of interest on Servicing Advances in respect of the Mortgage Loans paid to the Master Servicer, the Special Servicer and/or the Trustee since the prior Distribution Date;
(y) a loan-by-loan listing of any Mortgage Loan which was defeased during the related Collection Period;
(z) a loan-by-loan listing of any Mortgage Loan that was the subject of material modification, extension or waiver during the related Collection Period;
(aa) a loan-by-loan listing of any Mortgage Loan that was the subject of a Material Breach of a representation or warranty given with respect thereto by the applicable Seller, as provided by the Master Servicer, the Special Servicer or the Depositor;
(bb) the respective amounts of the distributions on such Distribution Date to the Holders of the Class V and Class R Certificates;
(cc) the Distribution Date, Record Date, Interest Accrual Period and Determination Date for the related Distribution Date;
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(dd) an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period; and
(ee) the amount of any CREFC® License Fee payable on such Distribution Date.
In the case of the information contemplated by clauses (a), (b), (d), (j), (k), (q) and (s) of this definition, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per $1,000 of original Certificate Balance or Notional Amount, as the case may be.
If and for so long as the Trust is subject to the reporting requirements of the Exchange Act, no Distribution Date Statement that is part of an Exchange Act Filing shall include references to the Rating Agencies or any ratings ascribed by any Rating Agency to any Class of Certificates; provided, that the form of Distribution Date Statement posted on the Certificate Administrator’s Website may include such information.
“Due Date” means, with respect to a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note, the date on which a Scheduled Payment is (or in the case of a Balloon Loan past its maturity date or an REO Loan, would otherwise have been) due.
“Due Diligence Service Provider” has the meaning set forth in Section 5.7(l).
“EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“EDGAR-Compatible Format” means any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.
“Eligible Account” means an account (or accounts) that is any of the following: (i) maintained with a depository institution or trust company (A) whose commercial paper, short-term unsecured debt obligations or other short-term deposits are rated at least “P-1” by Moody’s, at least “F1” by Fitch and at least a rating equivalent to either of the foregoing from KBRA (if then rated by KBRA), in the case of accounts in which funds are held for thirty (30) days or less or, in the case of accounts in which funds are held for more than thirty (30) days, the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, at least “A” by Fitch and at least a rating equivalent to either of the foregoing from KBRA (if then rated by KBRA), (ii) an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long term unsecured debt rating shall be at least “A2” from Moody’s, at least “BBB+” from Fitch and at least a rating equivalent to either of the foregoing from KBRA (if then rated by KBRA), if the deposits are to be held in the account for more than thirty (30) days or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt obligations rating shall be at least “P-1” from Moody’s, “F2” from Fitch and at least a rating equivalent to either of the foregoing from KBRA (if then rated by KBRA), if the deposits are to be held in the account for thirty (30) days or less, (iii) an account or accounts maintained with PNC Bank, National Association so long as such entity’s long term unsecured debt obligations or deposit account rating shall be at least “A2” from Moody’s, at least “BBB+” from Fitch and at least a rating equivalent to either of the foregoing from KBRA (if
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then rated by KBRA), if the deposits are to be held in the account for more than thirty (30) days or such entity’s commercial paper, deposit account or short-term unsecured debt obligations rating shall be at least “P-1” from Moody’s, “F2” from Fitch and at least a rating equivalent to either of the foregoing from KBRA (if then rated by KBRA), if the deposits are to be held in the account for thirty (30) days or less, (iv) a segregated trust account maintained with the trust department of a federal or state chartered depository institution or trust company (which, subject to the remainder of this clause (iv), may include the Certificate Administrator, the Custodian or the Trustee) acting in its fiduciary capacity, and which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b) and the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, (v) an account other than one listed in clauses (i) – (iv) above that is maintained with any insured depository institution that is the subject of a Rating Agency Confirmation from each and every Rating Agency or (vi) an account that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i), (ii) and (iii) above that is the subject of a Rating Agency Confirmation from Morningstar and each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such account.
“Eligible Investments” means any one or more of the following financial assets or other property:
(i) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof, provided that each such obligation is backed by the full faith and credit of the United States;
(ii) demand or time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, (A) if it has a term of three months or less, (1) the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s and (2) the short-term obligations of which are rated in the highest short term debt rating category of KBRA and Fitch, (B) if it has a term of more than three months and not in excess of six (6) months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated at least “Aa3” by Moody’s and (C) if it has a term of more than six (6) months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long term obligations of which are rated “Aaa” by Moody’s (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (x) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (y) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (z) such investments must not be subject to liquidation prior to their maturity;
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(iii) repurchase agreements or obligations with respect to any security set forth in clause (i) above where such security has a remaining maturity of one (1) year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) set forth in clause (ii) above and where such repurchase obligation will mature prior to the Business Day preceding the next date upon which, as set forth in this Agreement, such amounts are required to be withdrawn from the Collection Account and which meets the minimum rating requirement for such entity set forth above;
(iv) commercial paper of any corporation incorporated under the laws of the United States or any state thereof (including both non-interest bearing discount obligations and interest bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof), (A) if it has a term of less than three months, the short-term obligations of which are rated at least “P-1” by Moody’s or, in the case of Moody’s, the long-term obligations of which are rated at least “A2” by Moody’s, “F1” by Fitch and in the highest short term debt rating category of KBRA; (B) if it has a term of more than three months and not in excess of six months, (1) the short-term debt obligations of which are rated at least “P-1” by Moody’s and the long-term debt obligations of which are rated at least “Aa3” by Moody’s, (2) the short-term debt obligations of which are rated in the highest short-term rating category by Fitch and KBRA and (3) the short-term obligations of which are rated at least “F1+” by Fitch (or “F1” if the long-term obligations of which are rated at least “AA-” by Fitch); and (C) if it has a term of more than six months, (1) the short-term debt obligations of which are rated at least “P-1” by Moody’s and the long-term debt obligations of which are rated at least “Aaa” by Moody’s, (2) the short-term debt obligations of which are rated at least “F1+” by Fitch (or “F1” by Fitch, if the long-term debt obligations of which are rated at least “AA-” by Fitch) and (3) the short-term debt obligations of which are rated in the highest short-term rating category by KBRA (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(v) guaranteed reinvestment agreements maturing within 365 days or less issued by any bank, insurance company or other corporation the short-term unsecured debt obligations of which are rated in the highest short-term debt rating category of each of Moody’s (or such lower rating for which Rating Agency Confirmation is obtained from Moody’s and Morningstar) and Fitch (or such lower rating for which Rating Agency Confirmation is obtained from Fitch and Morningstar) and the long-term unsecured debt obligations of which are rated in the highest long-term category by Moody’s (or such lower rating for which each of Moody’s and Morningstar has provided a Rating Agency Confirmation) and in
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the highest long-term category by Fitch (or such lower rating for which Fitch and Morningstar has provided a Rating Agency Confirmation);
(vi) Wells Fargo Advantage Heritage Money Market Fund or any other money market funds (including those managed or advised by the Certificate Administrator or its affiliates) that (A) maintain a constant asset value and that are rated by each of Moody’s and Fitch in their highest money market fund ratings category, or as confirmed in a Rating Agency Confirmation by Moody’s, Fitch and Morningstar or (B)(1) have substantially all of its assets invested continuously in the types of investments referred to in clause (i) above, (2) has net assets of not less than $5,000,000,000, and (3) has the highest rating obtainable for money market funds from Moody’s, Fitch and Morningstar;
(vii) an obligation, security or investment that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (ii) - (vi) above, and is the subject of a Rating Agency Confirmation from Morningstar and each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such obligation, security or investment; and
(viii) any other obligation, security or investment other than one listed in clauses (i) – (vi) above, that is the subject of a Rating Agency Confirmation from each and every Rating Agency;
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provided (A) such investment is held for a temporary period pursuant to Section 1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by the obligor in U.S. dollars, and (C) that no such instrument shall be an Eligible Investment (1) if such instrument evidences either (a) a right to receive only interest payments or only principal payments with respect to the obligations underlying such instrument or (b) a right to receive both principal and interest payments derived from obligations underlying such instrument and the principal and interest payments with respect to such instrument provide a yield to maturity of greater than 120% of the yield to maturity at par of such underlying obligations, or (2) if it may be redeemed at a price below the purchase price or (3) if it is not treated as a “permitted investment” that is a “cash flow investment” under Section 860G(a)(5) of the Code; and provided, further, that any such instrument shall have a maturity date no later than the date such instrument is required to be used to satisfy the obligations under this Agreement, and, in any event, shall not have a maturity in excess of one (1) year; any such instrument must have a predetermined fixed dollar of principal due at maturity that cannot vary or change; interest on any variable rate instrument shall be tied to a single interest rate index plus a single fixed spread (if any) and move proportionally with that index; and provided, further, that no amount beneficially owned by any REMIC Pool (including any amounts collected by the Master Servicer but not yet deposited in the Collection Account) may be invested in investments treated as equity interests for Federal income tax purposes. No Eligible Investments shall be purchased at a price in excess of par. For the purpose of this definition, units of investment funds (including money market funds) shall be deemed to mature daily.
“Eligible Trust Advisor” means an entity that (i)(A) is (or as to which each of the personnel responsible for supervising the obligations of the Trust Advisor is) (I) regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five (5) years of experience in collateral analysis and loss projections and (II) has (or as to which each of the personnel responsible for supervising the obligations of the Trust Advisor has) at least five (5) years of experience in commercial real estate asset management and in the workout and management of distressed commercial real estate assets or (B) is the special servicer or trust advisor/operating advisor on a commercial mortgage-backed securities transaction rated by DBRS, Fitch, KBRA, Moody’s, Morningstar or S&P (including, in the case of Pentalpha Surveillance LLC, this transaction) but has not been special servicer on a transaction for which DBRS, Fitch, KBRA, Moody’s, Morningstar or S&P has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing concerns with the special servicer as the sole or material factor in such rating action, (ii) is not the Depositor, a Seller, the Master Servicer, the Special Servicer or any Affiliate of any of the foregoing, (iii) can and will make the representations and warranties set forth in Section 10.6, (iv) is not the Controlling Class Representative, a Loan-Specific Directing Holder or an Affiliate of the Controlling Class Representative or a Loan-Specific Directing Holder and (v) has not been paid by the Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations under this Agreement or (y) for the appointment or recommendation for replacement of a successor special servicer to become the Special Servicer.
“Environmental Insurance Policy” means, with respect to any Mortgage Loan or the related Mortgaged Property or REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect
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of such Mortgage Loan, Mortgaged Property or REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.
“Environmental Laws” means any and all federal, state and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions, now or hereafter in effect, relating to health or the environment or to emissions, discharges or releases of chemical substances, including, without limitation, any and all pollutants, contaminants, petroleum or petroleum products, asbestos or asbestos-containing materials, polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial, toxic or hazardous substances or wastes, into the environment, including, without limitation, ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, labeling, registration, treatment, storage, disposal, transport or handling of any of the foregoing substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Escrow Account” means an account established by or on behalf of the Master Servicer pursuant to, and in accordance with the requirements of, Section 8.3(e).
“Escrow Amount” means any amount payable with respect to a Mortgage Loan, A/B Whole Loan or Loan Pair for taxes, assessments, water rates, Standard Hazard Insurance Policy premiums, ground lease payments, reserves for capital improvements, deferred maintenance, repairs, tenant improvements, leasing commissions, rental achievements, environmental matters and other reserves or comparable items.
“Euroclear Bank” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“Excess Interest” means, with respect to any ARD Mortgage Loan that is not prepaid in full on or before its Anticipated Repayment Date, the excess, if any of (i) interest accrued at the rate of interest applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any interest on such interest as may be provided for under the related Mortgage Loan documents) over (ii) interest accrued at the rate of interest applicable to such Mortgage Loan before such Anticipated Repayment Date, to the extent such excess interest is payable under the related Mortgage Loan documents only after the outstanding principal balance of the related ARD Mortgage Loan has been paid in full. Excess Interest on an ARD Mortgage Loan is an asset of the Trust, but shall not be an asset of any REMIC Pool formed hereunder.
“Excess Interest Sub-account” means an administrative account that is (or, to the extent it is established as a separate account, is deemed to be) a sub-account of the Distribution Account; provided, that any separate account constituting the Excess Interest Sub-account shall be entitled “U.S. Bank National Association, as Certificate Administrator on behalf of U.S. Bank National Association, as Trustee, for the benefit of the Holders of the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Class V, Excess Interest Sub-account” and shall conform to the
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requirements applicable to the Distribution Account set forth in Section 5.3(a). The Excess Interest Sub-account shall not be an asset of any REMIC Pool.
“Excess Liquidation Proceeds” means, with respect to any Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO Property, over (ii) the amount that would have been received if a Principal Prepayment in full had been made with respect to such Mortgage Loan (or, in the case of an REO Property related to an A/B Whole Loan, a Principal Prepayment in full had been made with respect to each of the related A Note and Serviced B Note, or, in the case of an REO Property related to a Loan Pair, a Principal Prepayment in full had been made with respect to each of the Serviced Pari Passu Mortgage Loan, the Serviced Companion Loan and any related Serviced B Note) on the date such proceeds were received plus accrued and unpaid interest with respect to such Mortgage Loan and any and all expenses (including Additional Trust Expenses and Unliquidated Advances) with respect thereto. In the case of an A/B Whole Loan or Loan Pair, Excess Liquidation Proceeds means only the portion of such proceeds that are allocated to the Trust pursuant to the related Intercreditor Agreement.
“Excess Liquidation Proceeds Reserve Account” means the Excess Liquidation Proceeds Reserve Account maintained by the Certificate Administrator in accordance with the provisions of Section 5.3, which shall be a subaccount of an Eligible Account.
“Excess Modification Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, the sum of (a) any and all Unallocable Modification Fees with respect to any modification, waiver, extension or amendment of any of the terms of such Mortgage Loan (or A/B Whole Loan or Loan Pair, as applicable) (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), (b) the excess, if any, of (i) any and all Allocable Modification Fees with respect to any modification, waiver, extension or amendment of any of the terms of such Mortgage Loan (or A/B Whole Loan or Loan Pair, as applicable) (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), over (ii) all unpaid or unreimbursed Additional Trust Expenses outstanding or previously incurred with respect to such Mortgage Loan (or A/B Whole Loan or Loan Pair, as applicable) that are reimbursed from such Allocable Modification Fees (which Additional Trust Expenses shall be reimbursed from such Allocable Modification Fees (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Allocable Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement)), and (c) expenses previously paid or reimbursed from Allocable Modification Fees as described in the preceding clause (b), which expenses have been recovered from the related Mortgagor or otherwise.
“Excess Penalty Charges” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, the sum of (a) the excess, if any, of (i) any and all Penalty Charges collected in respect of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Penalty Charges
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payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), over (ii) all unpaid or unreimbursed Additional Trust Expenses outstanding or previously incurred, with respect to the related Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, that are reimbursed from such Penalty Charges (which Additional Trust Expenses shall be reimbursed from such Penalty Charges (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Penalty Charges payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement)), and (b) expenses previously paid or reimbursed from Penalty Charges as described in the preceding clause (a), which expenses have been recovered from the related Mortgagor or otherwise.
“Excess Servicing Fee” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), that portion of the Master Servicing Fee that accrues in the same manner as the Master Servicing Fee at a per annum rate equal to the Excess Servicing Fee Rate.
“Excess Servicing Fee Rate” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), a rate per annum equal to the Master Servicing Fee Rate minus 0.0025% (0.25 basis points); provided, that such rate shall be subject to reduction at any time following any resignation of the Master Servicer pursuant to Section 8.22 of this Agreement (if no successor is appointed in accordance with such Section) or any termination of the Master Servicer pursuant to Section 8.28 of this Agreement, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 8.22(b) of this Agreement.
“Excess Servicing Fee Right” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), the right to receive the related Excess Servicing Fee. In the absence of any transfer of any Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.
“Excess Trust Advisor Expenses” means, with respect to each Distribution Date, an amount equal to the positive amount, if any, of the Trust Advisor Expenses for such Distribution Date, less the amount of any such Trust Advisor Expenses allocated to reduce the aggregate Distributable Certificate Interest of the Class B, Class C and Class D Certificates for such Distribution Date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Exchange Act Filing” means each report on Form 10-D, Form 10-K or Form 8-K that has been filed by the Certificate Administrator with respect to the Trust through the EDGAR system.
“Exchange Certification” means an Exchange Certification substantially in the form set forth in Exhibit G hereto executed by a holder of an interest in a Regulation S Global Certificate or a Rule 144A Global Certificate, as applicable.
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“Excluded Controlling Class Holder” means, with respect to any Excluded Controlling Class Mortgage Loan, the Controlling Class Representative or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Mortgage Loan. Promptly upon obtaining actual knowledge of any such Controlling Class Representative or Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, such Controlling Class Representative or Controlling Class Certificateholder shall provide notice in the form of Exhibit I-1E hereto to the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 14.5 of this Agreement and shall specifically identify the Excluded Controlling Class Holder and the subject Excluded Controlling Class Mortgage Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit I-1F hereto, which such notice shall include each user identification assigned to such Excluded Controlling Class Holder with respect to the Certificate Administrator’s Website, and which such notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as provided in this Agreement. Upon receipt by any such party of any such notice, such party shall treat the Person providing such notice as an Excluded Controlling Class Holder hereunder with respect to the related Excluded Controlling Class Mortgage Loan. Prior to receipt of any such notice, the parties hereto shall be entitled to conclusively assume that such Persons are not Excluded Controlling Class Holders.
“Excluded Controlling Class Mortgage Loan” means any Mortgage Loan, A/B Whole Loan or Loan Pair with respect to which, as of any date of determination, the Controlling Class Representative or any Controlling Class Certificateholder is a Borrower Party. As of the Closing Date, there are no Excluded Controlling Class Mortgage Loans related to the Trust.
“Excluded Information” means, with respect to any Excluded Controlling Class Mortgage Loan, any information and reports solely relating to such Excluded Controlling Class Mortgage Loan(s) and/or the related Mortgaged Properties, including, without limitation, any Asset Status Reports, Final Asset Status Reports or summaries thereof, or any appraisals, inspection reports (related to Specially Serviced Mortgage Loans conducted by the Special Servicer or the Excluded Special Servicer), recoverability officer’s certificates, the Trust Advisor Annual Reports (provided that the Special Servicer shall be entitled to the Trust Advisor Annual Report notwithstanding the inclusion of any information regarding an Excluded Special Servicer Mortgage Loan), any determination of the Special Servicer’s net present value calculation, any appraisal reduction amount calculations, environmental assessments, seismic reports and property condition reports and such other information and reports designated as Excluded Information (other than such information related to such Excluded Controlling Class Mortgage Loan(s) that is aggregated with information of other Mortgage Loans at a pool level) by the Master Servicer, the Special Servicer and the Trust Advisor, as the case may be. For the avoidance of doubt, any file or report contained in the CREFC® Investor Reporting Package (CREFC® IRP) (other than the CREFC® Special Servicer Loan File relating to any Excluded Controlling Class Mortgage Loan) shall not be considered “Excluded Information”. Each of the Master Servicer, the Special Servicer and the Trust Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance with Section 8.31 hereof. For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under a separate tab indicating that the information is excluded or otherwise
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restricted on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 8.31 hereof.
“Excluded Mortgage Loan” means any Mortgage Loan, A/B Whole Loan or Loan Pair with respect to which, as of any date of determination, the Controlling Class Representative or any Majority Controlling Class Certificateholders is a Borrower Party. As of the Closing Date, there are no Excluded Mortgage Loans related to the Trust.
“Excluded Special Servicer” means, with respect any Excluded Special Servicer Mortgage Loan, a special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to the special servicer set forth in this Agreement. For the avoidance of doubt, with respect to each Excluded Special Servicer Mortgage Loan, the Excluded Special Servicer shall be entitled to all Special Servicer compensation earned during such time as such Excluded Special Servicer Mortgage Loan is an Excluded Special Servicer Mortgage Loan; provided that the Special Servicer shall be entitled to all other Special Servicer compensation.
“Excluded Special Servicer Mortgage Loan” means any Mortgage Loan, A/B Whole Loan or Loan Pair with respect to which, as of any date of determination, the Special Servicer is a Borrower Party.
“Exemption” means each of the individual prohibited transaction exemptions relating to pass-through certificates and the operation of asset pool investment trusts granted by the United States Department of Labor to the Underwriters and Initial Purchasers, as amended.
“Expense Loss” means a loss realized upon payment by the Trust of an Additional Trust Expense.
“Extension” has the meaning set forth in Section 9.15(a).
“Fannie Mae” means the Federal National Mortgage Association, or any successor thereto.
“FDIC” means the Federal Deposit Insurance Corporation or any successor thereto.
“Final Asset Status Report” means, with respect to any Specially Serviced Mortgage Loan, each related Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the Controlling Class Representative or any related Loan-Specific Directing Holder, in each case, which does not include any communication (other than the related Final Asset Status Report itself) between the Special Servicer and the Controlling Class Representative or any related Loan-Specific Directing Holder, as applicable, with respect to such Specially Serviced Mortgage Loan; provided that no Asset Status Report shall be considered to be a Final Asset Status Report unless (i) the Applicable Control Party has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to this Agreement in respect of such actions, or has been deemed to have approved or consented to such actions, or (ii) the Asset Status Report is otherwise implemented by the Special Servicer in accordance with this Agreement.
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“Final Certification” has the meaning set forth in Section 2.2.
“Final Judicial Determination” has the meaning set forth in Section 2.3(a).
“Final Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Final Recovery Determination” means a determination with respect to any Mortgage Loan, Serviced B Note, Serviced Companion Loan or REO Property by the Special Servicer in consultation with the Applicable Control Party, and the Master Servicer (including a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note that relates to an REO Property), in each case, in its good faith discretion, consistent with the Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or recoveries that the Special Servicer expects to be finally recoverable on such Mortgage Loan, Serviced B Note, Serviced Companion Loan or REO Property, without regard to any obligation of the Master Servicer, the Special Servicer or the Trustee, as the case may be, to make payments from its own funds pursuant to Article IV hereof, have been recovered.
“Final Scheduled Distribution Date” means, for each Class of rated Certificates, the Distribution Date on which such Class would be paid in full if payments were made on the Mortgage Loans in accordance with their terms, except that ARD Mortgage Loans are assumed to be repaid on their Anticipated Repayment Dates.
“Financial Market Publishers” means BlackRock Financial Management, Inc., Trepp, LLC, Bloomberg L.P., Thomson Reuters, CMBS.com, Inc., Intex Solutions, Inc. and Markit Group Limited, or any successor entities thereof.
“Fitch” means Fitch Ratings, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Form 8-K Disclosure Information” has the meaning set forth in Section 13.7.
“Franchise Mortgage Loan” has the meaning set forth in Section 2.1(d).
“Free Writing Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Freddie Mac” means the Federal Home Loan Mortgage Corporation, or any successor thereto.
“Global Certificate” means any Registered Global Certificate, Rule 144A Global Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent Global Certificate.
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“Government Securities” has the meaning set forth in Section 2(a)(16) of the Investment Company Act of 1940, as amended.
“Grantor Trust” has the meaning set forth in the Preliminary Statement hereto.
“Hazardous Materials” means any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including, without limitation, those so identified pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental laws now or hereafter existing, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.
“Holder” means the Person in whose name a Certificate is registered on the Certificate Register (and, solely for the purposes of distributing reports, statements or other information pursuant to this Agreement, any Certificate Owner or potential transferee of a Certificate to the extent the Person distributing such information has been provided with an Investor Certification; provided, that this Agreement, the Final Prospectus, the Distribution Date Statements and the Exchange Act Reports shall be made available to the general public). Solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, any Excluded Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor or any Borrower Party shall be deemed not to be outstanding and the Voting Rights to which they are entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained. For purposes of obtaining the consent of Certificateholders to any action under this Agreement including any Voting Rights and any action proposed to be taken by the Special Servicer with respect to a Specially Serviced Mortgage Loan or any Excluded Special Servicer with respect to the related Excluded Special Servicer Mortgage Loan, any Certificates that the applicable Responsible Officer has actual knowledge are beneficially owned by the Special Servicer or the Excluded Special Servicer, as applicable, or an Affiliate thereof shall be deemed not to be outstanding (provided, that any Controlling Class Certificate owned by an Excluded Controlling Class Holder shall be deemed to not be outstanding solely with respect to any related Excluded Controlling Class Mortgage Loan; and provided, further, that any Controlling Class Certificate owned by the Special Servicer or an affiliate thereof shall be deemed to not be outstanding solely with respect to any related Excluded Special Servicer Mortgage Loan). Notwithstanding the foregoing, for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates shall be outstanding if such amendment does not relate to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, any Excluded Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates. Also, notwithstanding the foregoing, subject to any restrictions set forth in Section 10.1(c), the restrictions above shall not apply to the exercise of the rights of the Master Servicer, the Special
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Servicer or an Affiliate of the Master Servicer or the Special Servicer, if any, as a member of the Controlling Class.
“Independent” means, when used with respect to (i) any Accountants, a Person who is “independent” within the meaning of Rule 2-01(B) of the Commission’s Regulation S-X and (ii) any other Person, a Person who (A) is in fact independent of another specified Person and any Affiliate of such other Person, (B) does not have any material direct or indirect financial interest in such other Person or any Affiliate of such other Person, (C) is not connected with such other Person or any Affiliate of such other Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions and (D) is not a member of the immediate family of a Person described in clause (B) or (C) above.
“Independent Contractor” means, either (i) with respect to any Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated by the Master Servicer (other than the Master Servicer, but which may be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced Mortgage Loan, any Person designated by the Special Servicer that would be an “independent contractor” with respect to a REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment trust (except that the ownership test set forth in such Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of the Aggregate Certificate Balance or Notional Amount, as the case may be, of any Class of the Certificates (other than the Class V and the Class R Certificates), a Percentage Interest of 35% or more in the Class V Certificates, a Percentage Interest of 35% or more in the Class R Certificates or such other interest in any Class of the Certificates or of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool does not receive or derive any income from such Person and provided that the relationship between such Person and such REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which shall be at the expense of the Person delivering such opinion to the Trustee, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor shall not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code), or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.
“Initial Certification” has the meaning set forth in Section 2.2.
“Initial Deposit” means the amount of all collections made on the Mortgage Loans from the Cut-off Date to and excluding the Closing Date.
“Initial Purchaser” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, and, in each case, its respective successor in interest.
“Inquiries” has the meaning set forth in Section 5.4(c).
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“Inspection Report” means, with respect to a Mortgaged Property, a report substantially in the form of, and containing the information called for in, the downloadable form of the “Property Inspection Form” available on the CREFC® Website.
“Institutional Accredited Investor” means an institutional accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D of the Securities Act or any entity in which all of the equity owners are institutional accredited investors qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D of the Securities Act.
“Insurance Policies” means, collectively, any Standard Hazard Insurance Policy, flood insurance policy, title insurance policy, terrorism insurance policy or Environmental Insurance Policy relating to the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter during the term of this Agreement.
“Insurance Proceeds” means amounts paid by the insurer under any Insurance Policy in connection with a Mortgage Loan, Serviced B Note or Serviced Companion Loan, other than amounts required to be paid over to the Mortgagor pursuant to law and the related Mortgage Loan documents in accordance with the Servicing Standard. With respect to any Mortgaged Property securing any A/B Whole Loan or Loan Pair, only an allocable portion of such Insurance Proceeds shall be distributable to the Certificateholders. With respect to the Mortgaged Property securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Insurance Proceeds.
“Intercreditor Agreement” means: (a) with respect to an A/B Whole Loan, the related intercreditor, co-lender or similar agreement in effect from time to time by and between the holder of the related A Note(s) and the holder of any related Serviced B Note relating to the relative rights of such holders; (b) with respect to a Loan Pair, the related intercreditor, co-lender or similar agreement in effect from time to time by and between the holders of the related Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan relating to the relative rights of such holders; (c) with respect to any Non-Serviced Loan Combination, the related intercreditor agreement, co-lender agreement or similar agreement in effect from time to time between the holders of the related Non-Serviced Companion Loan and Non-Serviced Mortgage Loan (and, in the case of the Charles River Plaza North Non-Serviced Loan Combination, the related B Note); and (d) solely with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and the provisions of Section 8.30 hereof.
“Interest Accrual Period” means, with respect to any REMIC I Regular Interest, REMIC II Regular Interest, Class X REMIC III Regular Interest, Class of REMIC III Regular Certificates or REMIC III Regular Interest, the period beginning on the first (1st) day of the month preceding the month in which such Distribution Date occurs and ending on the last day of the month immediately preceding the month in which such Distribution Date occurs.
“Interest Reserve Account” means any Interest Reserve Account maintained by the Certificate Administrator pursuant to Section 5.3(a), which shall be a subaccount of an Eligible Account.
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“Interest Reserve Amount” has the meaning set forth in Section 5.3(b).
“Interest Reserve Loans” means the Mortgage Loans that bear interest other than on a 30/360 Basis.
“Interested Person” means, as of any date of determination, the Master Servicer, the Special Servicer, the Depositor, the holder of any related Junior Indebtedness (with respect to any particular Mortgage Loan), a Holder or Certificate Owner of 50% or more of the Controlling Class, the Controlling Class Representative, the Trust Advisor, any Seller, any Independent Contractor engaged by the Master Servicer or the Special Servicer pursuant to this Agreement, or any Person actually known to a Responsible Officer of the Trustee or the Certificate Administrator to be an Affiliate of any of them or any Borrower Party.
“Investor Certification” means a certificate (which may be in electronic form) substantially in the form of Exhibit I-1A, Exhibit I-1B, Exhibit I-1C and Exhibit I-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation). The Certificate Administrator may require that Investor Certifications are resubmitted from time to time in accordance with its policies and procedures.
“Investor Q&A Forum” has the meaning set forth in Section 5.4(c).
“Investor Registry” has the meaning set forth in Section 5.4(d).
“IRS” means the Internal Revenue Service.
“Joint Mortgage Loan” means a Mortgage Loan originated by more than one Seller. There are no Joint Mortgage Loans related to the Trust.
“Junior Indebtedness” means any indebtedness of any Mortgagor that is secured by a lien that is junior in right of payment to the lien of the Mortgage securing the related Mortgage Note.
“KBRA” means Kroll Bond Rating Agency, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “KBRA” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Late Collections” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, all amounts received during any Collection Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments or collections of Scheduled Payments due but delinquent for a previous Collection Period and not previously recovered; provided that “Late Collections” shall not include any Actual Recoveries of Trust Advisor Expenses.
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“Late Fee” means a fee paid or payable, as the context may require, to the related lender by a Mortgagor as provided in the related Mortgage Loan, A/B Whole Loan or Loan Pair in connection with a late payment made by such Mortgagor, but excluding any such amounts allocable to a Non-Serviced Mortgage Loan and related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement, and, with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, including only the portion of such amounts that is received by the Trust in accordance with Section 8.30 hereof.
“Lender Register” has the meaning set forth in Section 8.26.
“Liquidation Expenses” means reasonable and direct expenses incurred by the Special Servicer on behalf of the Trust in connection with the liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in respect thereof including, without limitation, reasonable legal fees and expenses in connection with a closing, brokerage commissions and conveyance taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of income from the related REO Property, to the extent available, (ii) paid out of related proceeds from liquidation or (iii) advanced by the Master Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e) hereof, as a Servicing Advance.
“Liquidation Fee” means a fee payable with respect to the final disposition or liquidation of any Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is a Specially Serviced Mortgage Loan (including, for this purpose, any related Serviced Companion Loan or Serviced B Note) or REO Property (other than any REO Property related to a Non-Serviced Mortgage Loan) equal to the lesser of (1) $1,000,000 and (2) the product of (x) 1.0% and (y) the Liquidation Proceeds received in connection with a final disposition of, and any Condemnation Proceeds and Insurance Proceeds received by the Trust (net of any expenses incurred by the Special Servicer on behalf of the Trust in connection with the collection of such Condemnation Proceeds and Insurance Proceeds) with respect to, such Specially Serviced Mortgage Loan or REO Property or portion thereof; provided, that the Liquidation Fee with respect to any Specially Serviced Mortgage Loan or REO Property shall be reduced by the amount of any Excess Modification Fees actually received by the Special Servicer as additional servicing compensation (i) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior eighteen (18) months in connection with each modification, restructure, extension, waiver or amendment that constituted a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Specially Serviced Mortgage Loan and (ii) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior nine (9) months in connection with each modification, restructure, extension, waiver or amendment that constitutes a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Non-Specially Serviced Mortgage Loan, but, in each case, only to the extent those Excess Modification Fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee shall be payable based upon, or out of, Liquidation Proceeds received in connection with (i) the repurchase of, or substitution for, any Mortgage Loan by the related
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Seller under the related Mortgage Loan Purchase Agreement for a Material Breach or Material Document Defect, if such repurchase or substitution occurs on or before one hundred and eighty (180) days after the discovery or receipt of notice by the related Seller of the Material Document Defect or Material Breach, as applicable, that gave rise to the particular repurchase or substitution obligation, (ii) the purchase of any Specially Serviced Mortgage Loan that is, or is part of, an A/B Whole Loan or Loan Pair by the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, within ninety (90) days following the date that such holder’s option to purchase the related Mortgage Loan first becomes exercisable, (iii) the purchase of any Specially Serviced Mortgage Loan by the holder of any related mezzanine loan, pursuant to the related mezzanine loan intercreditor agreement, within ninety (90) days following the date that such holder’s option to purchase such Specially Serviced Mortgage Loan first becomes exercisable, (iv) the purchase of all of the Mortgage Loans and REO Properties in connection with an optional termination of the Trust, (v) the purchase of any Specially Serviced Mortgage Loan by the Special Servicer or any Affiliate thereof (other than the Controlling Class Representative), or (vi) the purchase of any Specially Serviced Mortgage Loan or related REO Property, by the Controlling Class Representative or any affiliate thereof (other than the Special Servicer), if such purchase occurs within ninety (90) days after the date on which the Special Servicer delivers to the Controlling Class Representative for its approval the initial Asset Status Report with respect to such Specially Serviced Mortgage Loan. For the avoidance of doubt, the Special Servicer may not receive a Workout Fee and a Liquidation Fee with respect to the same proceeds collected on a Mortgage Loan, Serviced Companion Loan, Serviced B Note or REO Loan. Notwithstanding the foregoing, if a Mortgage Loan, Serviced B Note or Serviced Companion Loan becomes a Specially Serviced Mortgage Loan only because of an event described in clause (i) of the definition of “Servicing Transfer Event” as a result of a payment default on the related maturity date and the related Liquidation Proceeds are received within three (3) months following the related maturity date as a result of the related Mortgage Loan, Serviced B Note or Serviced Companion Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Liquidation Fee out of the proceeds received in connection with such liquidation if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Mortgagor and retain (x) a liquidation fee, (y) such other fees as are provided for in the related Mortgage Loan documents and (z) other appropriate fees in connection with such liquidation.
“Liquidation Proceeds” means proceeds from the sale or liquidation of a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note or related REO Property, net of Liquidation Expenses. With respect to any Mortgaged Property securing an A/B Whole Loan or Loan Pair, only an allocable portion of such Liquidation Proceeds shall be distributable to the Certificateholders. With respect to the mortgaged property or properties securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Liquidation Proceeds.
“Liquidation Realized Loss” means, with respect to each Mortgage Loan or any REO Property, as the case may be, as to which a Cash Liquidation, or other liquidation or REO Disposition has occurred, an amount equal to the excess, if any, of: (A) the sum, without duplication, of (1) the Unpaid Principal Balance of the Mortgage Loan (or any related REO Mortgage Loan), as the case may be, as of the date of the Cash Liquidation, or other liquidation or REO Disposition, plus (2) unpaid interest and interest accrued thereon at the applicable
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Mortgage Rate through the Due Date (or, in the case of a Balloon Loan past its Maturity Date or an REO Property, the date that would otherwise be the Due Date) in the Collection Period in which the Cash Liquidation or other liquidation or REO Disposition occurred, plus (3) any expenses (including Additional Trust Expenses, unpaid Servicing Advances and unpaid Advance Interest, but excluding Trust Advisor Expenses) incurred in connection with such Mortgage Loan or REO Property that have been paid or are payable or reimbursable to any Person, other than amounts included in the definition of Liquidation Expenses and amounts previously treated as Expense Losses attributable to principal (and interest thereon), plus (4) any Unliquidated Advances incurred with respect to such Mortgage Loan or REO Property; over (B) the sum of (1) REO Income applied as recoveries of principal or interest on the related Mortgage Loan or REO Property, and (2) Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, Late Collections and all other amounts recovered from the related Mortgagor and received during the Collection Period in which such Cash Liquidation, or other liquidation or REO Disposition occurred and which are not required under any Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents) or Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any holder of a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan.
“Loan Pair” means a Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan, collectively. The Loan Pairs related to the Trust as of the Closing Date are the 261 Fifth Avenue Loan Pair and the WPC Department Store Portfolio Loan Pair. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan, collectively, shall cease to be a Loan Pair and shall be a Non-Serviced Loan Combination.
“Loan-Specific Directing Holder” means, with respect to any A/B Whole Loan or Loan Pair, any holder of a related Serviced B Note or Serviced Companion Loan, or any designee thereof or participant in a securitization thereof, that constitutes the “Controlling Holder”, “Controlling Note Holder”, the “Directing Holder”, “Directing Lender” or any analogous concept under the related Intercreditor Agreement. The only Loan-Specific Directing Holder related to the Trust as of the Closing Date shall be, with respect to the 261 Fifth Avenue Loan Pair, the 261 Fifth Avenue Directing Holder. On and after the 261 Fifth Avenue Companion Loan Securitization Date, there shall be no Loan-Specific Directing Holder related to the 261 Fifth Avenue Mortgage Loan with respect to the Trust. With respect to the 200 Helen Street Mortgage Loan, the Directing Holder related to the Issuing Entity as of the Closing Date will be the holder of the 200 Helen Street B Note.
“Loan-Specific Special Servicer” has the meaning set forth in Section 9.30(f).
“Loan-to-Value Ratio” means, as of any date with respect to a Mortgage Loan, the fraction, expressed as a percentage, the numerator of which is the Unpaid Principal Balance of such Mortgage Loan at the date of determination and the denominator of which is the value of the Mortgaged Property as shown on the most recent Appraisal or valuation of the Mortgaged Property which is available as of such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the allocable portion thereof.
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“Lock-Box Account” has the meaning set forth in Section 8.3(g).
“Lock-Box Agreement” means, with respect to any Mortgage Loan, any lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a depositary institution and the Master Servicer (or a sub-servicer on its behalf) pursuant to which a Lock-Box Account is created.
“Losses” has the meaning set forth in Section 12.4.
“MAI” means Member of the Appraisal Institute.
“Major Decision” means any of the following:
(a) any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair that comes into and continues in default;
(b) any modification, consent to a modification or waiver of a Monetary Term (other than Penalty Charges, but including, without limitation, the timing of payments and acceptance of discounted payoffs) or material non-monetary term (including, without limitation, the timing of payments and the acceptance of discounted payoffs) of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair or any extension of the Maturity Date thereof;
(c) following a default or an event of default with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, any exercise of remedies, including any acceleration thereof or initiation of judicial, bankruptcy or similar proceedings under the related Mortgage Loan documents;
(d) any sale of a Defaulted Loan or REO Property for less than the applicable Purchase Price, subject to the terms of Section 11.1 of this Agreement;
(e) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at a Mortgaged Property or an REO Property;
(f) any release of collateral or any acceptance of substitute or additional collateral for a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, or any consent to either of the foregoing, unless required or permitted pursuant to the specific terms of the related Mortgage Loan documents and for which there is no material lender discretion;
(g) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair or, if lender consent is required, any consent to such waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor, other than any such transfer or
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incurrence of debt as may be effected without the consent of the lender under the related Mortgage Loan documents;
(h) with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, any incurrence of additional debt by a Mortgagor or of any mezzanine financing by any beneficial owner of a Mortgagor (to the extent that the lender has consent rights pursuant to the related Mortgage Loan documents (for purposes of the determination whether a lender has such consent rights pursuant to the related Mortgage Loan documents, any Mortgage Loan document provision that requires that an intercreditor agreement be reasonably or otherwise acceptable to the lender will constitute such consent rights));
(i) any material modification, waiver or amendment of an intercreditor agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender or subordinate debt holder related to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, or an action to enforce rights with respect thereto or decision not to enforce such rights;
(j) any franchise changes (with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair for which the lender is required to consent or approve under the related Mortgage Loan documents), or, with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair with an Unpaid Principal Balance greater than $2,500,000, any material property management company changes, including, without limitation, approval of the termination of a manager and appointment of a new property manager;
(k) with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, releases of any escrow accounts, reserve accounts or letters of credit held as performance escrows or reserves other than those required pursuant to the specific terms of the related Mortgage Loan documents and for which there is no material lender discretion;
(l) any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in a Mortgagor, guarantor or other obligor, or releasing a Mortgagor, guarantor or other obligor from liability under a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair other than pursuant to the specific terms thereof and for which there is no lender discretion;
(m) any determination of an Acceptable Insurance Default;
(n) the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of a Mortgagor; and
(o) the exercise of the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement to the “Note A Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term as may be set forth in any such Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, and/or
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the “Servicer” referred to therein, if and to the extent such rights or powers affect the priority, payments, consent rights, or security interest with respect to the “Note A Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term.
“Majority Controlling Class Certificateholders” means the Holder(s) of Certificates representing more than 50% of the Aggregate Certificate Balance of the Controlling Class.
“Manager” means, with respect to any Mortgage Loan, any property manager for the related Mortgaged Property.
“Master Servicer” means Midland Loan Services, a Division of PNC Bank, National Association and its permitted successors or assigns.
“Master Servicer Consent Matters” has the meaning set forth in Section 8.3(a).
“Master Servicer Indemnified Parties” has the meaning set forth in Section 8.25(a).
“Master Servicer Losses” has the meaning set forth in Section 8.25(a).
“Master Servicer Remittance Date” means, for each Distribution Date, the Business Day immediately preceding such Distribution Date.
“Master Servicer Remittance Report” means the CREFC® Loan Periodic Update File.
“Master Servicing Fee” means, with respect to each Mortgage Loan and, if applicable, A/B Whole Loan or Loan Pair (including a Mortgage Loan, A/B Whole Loan or Loan Pair that relates to an REO Property or is a Defeasance Loan), for any related Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related Master Servicing Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan or, if applicable, such A/B Whole Loan or Loan Pair, as the case may be, during such related Mortgage Loan Accrual Period, subject to reduction in respect of Compensating Interest, as set forth in Section 5.2(a)(I)(iv). The Master Servicing Fee shall include all amounts required to be paid to any sub-servicer appointed by the Master Servicer.
“Master Servicing Fee Rate” means, with respect to each Mortgage Loan and any related Serviced Companion Loan or Serviced B Note, including any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or is a Defeasance Loan, a rate equal to:
(i) with respect to each Mortgage Loan (other than the 261 Fifth Avenue Mortgage Loan (after the 261 Fifth Avenue Companion Loan Securitization Date), the Charles River Plaza North Mortgage Loan, The Mall of New Hampshire Mortgage Loan and the Aviare Place Apartments Mortgage
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Loan), 0.0050% per annum plus the primary servicing fee rate set forth next to such Mortgage Loan on the Mortgage Loan Schedule;
(ii) with respect to the Charles River Plaza North Mortgage Loan and The Mall of New Hampshire Mortgage Loan, 0.0025% per annum;
(iii) with respect to the 261 Fifth Avenue Mortgage Loan (after the 261 Fifth Avenue Companion Loan Securitization Date) and the Aviare Place Apartments Mortgage Loan, 0.0025% per annum;
(iv) with respect to the 200 Helen Street B Note, 0.0050% per annum; and
(v) with respect to the 261 Fifth Avenue Companion Loan (prior to the 261 Fifth Avenue Companion Loan Securitization Date) and the WPC Department Store Portfolio Serviced Companion Loans, 0.0025% per annum.
“Material Breach” has the meaning set forth in Section 2.3(a).
“Material Document Defect” has the meaning set forth in Section 2.3(a).
“Maturity Date” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note as of any date of determination, the date on which the last payment of principal is due and payable thereunder, after taking into account all Principal Prepayments received and any Deficient Valuation, Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced Companion Loan or Serviced B Note occurring prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Serviced Companion Loan or Serviced B Note or (ii) any grace period permitted by such Mortgage Loan, Serviced B Note or Serviced Companion Loan.
“Modification Fee” means a fee, if any, collected from a Mortgagor by the Master Servicer in connection with a written restructuring, modification, waiver, extension or amendment of any Mortgage Loan (or A/B Whole Loan or Loan Pair, if applicable, but not any Non-Serviced Mortgage Loan) other than a Specially Serviced Mortgage Loan or collected in connection with a written restructuring, modification, waiver, extension or amendment by the Special Servicer of a Specially Serviced Mortgage Loan, but does not include Assumption Fees, assumption application fees, Consent Fees or defeasance fees. For each written restructuring, modification, extension, waiver or amendment that restructures, modifies, extends, amends or waives any term of the Mortgage Loan, A/B Whole Loan or Loan Pair in connection with working out of a Specially Serviced Mortgage Loan, the Modification Fees collected from the related Mortgagor will be subject to a cap of the lesser of (i) 1.0% of the outstanding principal balance of such Mortgage Loan, A/B Whole Loan or Loan Pair on the closing date of the related modification, restructure, extension, waiver or amendment (prior to giving effect to such modification, restructure, extension, waiver or amendment); provided, that no aggregate cap will exist in connection with the amount of Modification Fees which may be collected from the related Mortgagor with respect to any Specially Serviced Mortgage Loan or REO Loan and (ii) $1,000,000; provided, that no aggregate cap exists in connection with the amount of
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Modification Fees which may be collected from the related Mortgagor with respect to any Specially Serviced Mortgage Loan or REO Loan.
“Modification Loss” means, with respect to each Mortgage Loan, (i) a decrease in the outstanding principal balance thereof as a result of a modification thereof in accordance with the terms hereof, (ii) any fees and expenses connected with such modification, to the extent (x) reimbursable to the Trustee, the Custodian, the Special Servicer or the Master Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a modification of such Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount of interest that would have accrued at a rate equal to the original Mortgage Rate, over interest that actually accrued on such Mortgage Loan during the preceding Collection Period.
“Money Term” means with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, the Maturity Date, Mortgage Rate, principal balance, amortization term or payment frequency thereof or any provision thereof requiring the payment of a Prepayment Premium in connection with a principal prepayment (and shall not include Late Fees or Default Interest provisions).
“Moody’s” means Moody’s Investors Service, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Morningstar” means Morningstar Credit Ratings, LLC or its successor in interest. If neither such rating agency nor any successor remains in existence, “Morningstar” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Mortgage” means the mortgage, deed of trust or other instrument securing a Mortgage Note.
“Mortgage File” means the mortgage documents listed below:
(i) the original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy
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of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed) or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost after recordation, the Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with evidence of recording thereon, or if such original modification, consolidation or extension agreements have been delivered to the appropriate recording office for recordation and either have not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or have been lost after recordation, true copies of such modifications, consolidations or extensions certified by the applicable Seller together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (B) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or a Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan));
(v) originals of all intervening assignments of Mortgage, if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by the applicable Seller, or in
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the case of an original blanket intervening assignment of Mortgage retained by the applicable Seller, a copy thereof certified by the applicable Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by the applicable Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (A) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by the applicable Seller to be a true and complete copy of the original assignment submitted for recording, and (B) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or a Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
(vii) the original or a copy of each guaranty, if any, constituting additional security for the repayment of such Mortgage Loan;
(viii) the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy or if such Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one hundred and eighty (180) days of the Closing Date or a preliminary title report binding on the title company with an original (which may be
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electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one hundred and eighty (180) days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), Space Lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing any related Serviced Companion Loan, Non-Serviced Companion Loan and B Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement (it being understood that each Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee)) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of the Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer shall assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
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(xiii) the original or a copy of the environmental indemnity agreement, if any, related to any Mortgage Loan;
(xiv) third-party management agreements, if any, with respect to any Mortgaged Property;
(xv) copies of any Environmental Insurance Policy;
(xvi) copies of any affidavit and indemnification agreement;
(xvii) if the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to the applicable Seller in connection with such Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the applicable Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
(xviii) with respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, (A) the preceding document delivery requirements shall be met by the delivery by the Depositor of copies of the documents specified above (other than the Mortgage Notes (and all intervening endorsements) respectively evidencing such Non-Serviced Mortgage Loan with respect to which the originals shall be required), including a copy of the Non-Serviced Mortgage Loan Mortgage, and (B) the requirement to deliver any of the preceding documents in the name of the Trustee shall be met by the delivery of such documents in the name of the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan.
Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File by either of the applicable Sellers shall satisfy the delivery requirements for both of the applicable Sellers.
“Mortgage Loan” means a Mortgage Note secured by a Mortgage, and all amendments and modifications thereof, identified on the Mortgage Loan Schedule, as amended from time to time, provided that the term “Mortgage Loan” shall include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not include any Non-Serviced Companion Loan and shall not include, in the case of the Charles River Plaza North Non-Serviced Loan Combination, the related B Note) and with respect to (i) any A/B Whole Loan, shall include the A Note (but shall not include the related Serviced B Note) and (ii) any Loan Pair, shall include
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the Serviced Pari Passu Mortgage Loan (but shall not include the related Serviced Companion Loan). For the avoidance of doubt, no BANA Lender Successor Borrower Right or UBSRES Seller Defeasance Rights and Obligations is part of a “Mortgage Loan”.
“Mortgage Loan Accrual Period” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note (including any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property), the period that commences on any related Due Date (or, in the case of any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or as to which the Maturity Date has passed, the date that would otherwise have been a related Due Date) and that continues to, but not including the next succeeding related Due Date (or, in the case of any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or as to which the Maturity Date has passed, the date next succeeding that would otherwise have been a related Due Date).
“Mortgage Loan Purchase Agreement” means Mortgage Loan Purchase Agreement I and Mortgage Loan Purchase Agreement II, as the case may be.
“Mortgage Loan Purchase Agreement I” means that certain Mortgage Loan Purchase Agreement between BANA and the Depositor dated the Pricing Date with respect to the BANA Loans.
“Mortgage Loan Purchase Agreement II” means that certain Mortgage Loan Purchase Agreement between UBSRES and the Depositor dated the Pricing Date with respect to the UBSRES Loans.
“Mortgage Loan Schedule” or “Loan Schedule” means collectively the schedule attached hereto as Schedule I, which identifies each BANA Loan, and the schedule attached hereto as Schedule II, which identifies each UBSRES Loan, as such schedules may be amended from time to time pursuant to Section 2.3.
“Mortgage Note” means the note or other evidence of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage Rate” means, for a given Mortgage Loan, Serviced Companion Loan or Serviced B Note, the per annum rate at which interest accrues on such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as the case may be, without regard to any increase in such rate after the related Anticipated Repayment Date in the case of an ARD Loan, and without regard to any increase in such rate as a result of a default under such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as the case may be.
“Mortgaged Property” means the real property, together with improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan and, in the case of an A/B Whole Loan, the related Serviced B Note and, in the case of a Loan Pair, the related Serviced Companion Loan and the related Serviced B Note (if any) and, in the case of a Non-Serviced Loan Combination, the related Non-Serviced Companion Loan (and, with respect to the Charles River Plaza North Non-Serviced Loan Combination, the related B Note).
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“Mortgagee” means, with respect to any Mortgage as of any date of determination, the mortgagee named therein as of such date.
“Mortgagor” means the obligor on a Mortgage Note.
“MSBAM 2015-C23 Pooling and Servicing Agreement” means the Pooling and Servicing Agreement, dated as of June 1, 2015, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, LNR Partners, LLC, as general special servicer, Wells Fargo Bank, National Association, as excluded mortgage loan special servicer, Pentalpha Surveillance LLC, as trust advisor, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian.
“Net Aggregate Prepayment Interest Shortfall” means, for any Distribution Date, the excess, if any, of the aggregate of all Prepayment Interest Shortfalls, if any, incurred during the related Collection Period with respect to all Mortgage Loans that are not Specially Serviced Mortgage Loans, over the sum of (A) the Compensating Interest to be paid by the Master Servicer on such Distribution Date with respect thereto and (B) the aggregate of all Prepayment Interest Excesses collected thereon during the related Collection Period.
“Net Mortgage Rate” means, with respect to any Mortgage Loan (including a successor REO Mortgage Loan), as of any date of determination, a per annum rate equal to the Mortgage Rate of such Mortgage Loan, minus the related Administrative Cost Rate.
“New Lease” means any lease of any REO Property entered into on behalf of the Trust, including any lease renewed or extended on behalf of the Trust if the Trust has the right to renegotiate the terms of such lease.
“Non-Directing Holder” means, with respect to any A/B Whole Loan or Loan Pair, the “Non-Directing Holder”, “Non-Controlling Note Holder” or any analogous concept under the related Intercreditor Agreement. The Non-Directing Holders related to the Trust as of the Closing Date are (i) prior to the 261 Fifth Avenue Companion Loan Securitization Date, the “Non-Controlling Note Holder” under the 261 Fifth Avenue Intercreditor Agreement, (ii) the “Non-Controlling Note Holders” under the WPC Department Store Portfolio Intercreditor Agreement and (iii) the “Non-Controlling Noteholder” under the 200 Helen Street Intercreditor Agreement.
“Nondisqualification Opinion” means a written Opinion of Counsel to the effect that a contemplated action (i) will neither cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding nor cause a “prohibited transaction,” “prohibited contribution” or any other tax (other than a tax on “net income from foreclosure property” permitted to be incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and (ii) will not cause the Grantor Trust to fail to qualify as a grantor trust.
“Non-Investment Grade Certificates” means each Class of Certificates that, at the time of transfer, is not rated in one of the four (4) highest generic rating categories by at least one NRSRO approved as a “Rating Agency” under the Exemption.
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“Non-Public Information” means any information in respect of the Trust, the Certificates, the Mortgage Loans or the Trust, in each case prepared and/or made available by any party to this Agreement, other than the Final Prospectus, the Distribution Date Statements, this Agreement and the Exchange Act Reports.
“Nonrecoverable Advance” means any of the following: (i) any Pari Passu Loan Nonrecoverable Advance (including interest accrued thereon at the Advance Rate) and (ii) the portion of any Advance (including interest accrued thereon at the Advance Rate) or Unliquidated Advance (not including interest thereon) previously made (and, in the case of an Unliquidated Advance, not previously reimbursed to the Trust) or proposed to be made by the Master Servicer, the Special Servicer or the Trustee, that, in its respective sole discretion, exercised in good faith and, with respect to the Master Servicer and the Special Servicer, taking into account the Servicing Standard, will not be or, in the case of a current delinquency, would not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds (or from any other collections) with respect to the related Mortgage Loan or Serviced Companion Loan (and taking into consideration any Crossed Mortgage Loans) (in the case of Servicing Advances) or Serviced B Note (in the case of Servicing Advances) or REO Property (in the case of P&I Advances and Servicing Advances), as evidenced by an Officer’s Certificate delivered pursuant to Section 4.4.
“Non-Registered Certificate” means unless and until registered under the Securities Act, any Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G, Class H, Class V or Class R Certificate.
“Non-Serviced Companion Loan” means a loan not included in the Trust that is generally payable on a pari passu basis with the related Non-Serviced Mortgage Loan. The Non-Serviced Companion Loans related to the Trust as of the Closing Date are the Charles River Plaza North Non-Serviced Companion Loans, The Mall of New Hampshire Non-Serviced Companion Loan and the Aviare Place Apartments Non-Serviced Companion Loan. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Companion Loan shall be a Non-Serviced Companion Loan.
“Non-Serviced Loan Combination” means a Non-Serviced Mortgage Loan and the related Non-Serviced Companion Loan (and, in the case of the Charles River Plaza North Non-Serviced Loan Combination, the related B Note), collectively. The Non-Serviced Loan Combinations related to the Trust as of the Closing Date are the Charles River Plaza North Non-Serviced Loan Combination, The Mall of New Hampshire Non-Serviced Loan Combination and the Aviare Place Apartments Non-Serviced Loan Combination. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan, collectively, shall also be a Non-Serviced Loan Combination.
“Non-Serviced Mortgage Loan” means a Mortgage Loan included in the Trust but serviced under another agreement. The Non-Serviced Mortgage Loans included in the Trust as of the Closing Date are the Charles River Plaza North Mortgage Loan, The Mall of New Hampshire Mortgage Loan and the Aviare Place Apartments Mortgage Loan. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan shall also be a Non-Serviced Mortgage Loan.
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“Non-Serviced Mortgage Loan Certificate Administrator” means, with respect to any Non-Serviced Loan Combination, the applicable “certificate administrator” or “paying agent” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Custodian” means, with respect to any Non-Serviced Loan Combination, the applicable “custodian” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Fiscal Agent” means, with respect to any Non-Serviced Loan Combination, the applicable “fiscal agent,” if any, under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Intercreditor Agreement” means the applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
“Non-Serviced Mortgage Loan Master Servicer” means, with respect to any Non-Serviced Loan Combination, the applicable “master servicer” or “servicer” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Mortgage” means the mortgage securing a Non-Serviced Mortgage Loan and the related Non-Serviced Companion Loan (and, in the case of the Charles River Plaza North Non-Serviced Loan Combination, the related B Note).
“Non-Serviced Mortgage Loan Pooling and Servicing Agreement” means a pooling and servicing agreement or trust and servicing agreement, as applicable, under which a Non-Serviced Mortgage Loan is serviced. The only Non-Serviced Mortgage Loan Pooling and Servicing Agreements related to the Trust as of the Closing Date are (i) the CSAIL 2015-C3 Pooling and Servicing Agreement (pursuant to which the Charles River Plaza North Non-Serviced Loan Combination and The Mall of New Hampshire Non-Serviced Loan Combination are serviced) and (ii) the MSBAM 2015-C23 Pooling and Servicing Agreement, pursuant to which the Aviare Place Apartments Non-Serviced Loan Combination is serviced. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the pooling and servicing agreement entered into in connection with the securitization of the 261 Fifth Avenue Companion Loan shall be a Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Special Servicer” means, with respect to any Non-Serviced Loan Combination, the applicable “special servicer” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Trustee” means, with respect to any Non-Serviced Loan Combination, the applicable “trustee” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Specially Serviced Mortgage Loan” means, as of any date of determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note that is not a Specially Serviced Mortgage Loan.
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“Notional Amount” means, as of any date of determination: (i) with respect to any Class X REMIC III Regular Interest, the REMIC II Principal Amount of the Corresponding REMIC II Regular Interest as of such date of determination; (ii) with respect to any Class of Class X Certificates, the aggregate of the Notional Amounts of the related Class X REMIC III Regular Interests as of such date of determination; and (iii) with respect to any Class X Certificate, the product of the Percentage Interest evidenced by such Certificate, multiplied by the Notional Amount of the applicable Class of Class X Certificates as of such date of determination.
“NRSRO” means any nationally recognized statistical ratings organization under the Exchange Act, including the Rating Agencies; provided that, when referred to in connection with the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website, “NRSRO” shall mean a nationally recognized statistical rating organization that has delivered an NRSRO Certification.
“NRSRO Certification” means a certification (which may be submitted electronically by means of a “click-through” confirmation via the 17g-5 Information Provider’s Website) substantially in the form of Exhibit J executed by a NRSRO in favor of the 17g-5 Information Provider.
“Officer’s Certificate” means (i) in the case of the Depositor, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, or any Senior Vice President, Vice President or Assistant Vice President, and by one or more of the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Depositor, (ii) in the case of the Master Servicer and the Special Servicer, any of the officers referred to above or an employee thereof designated as a Servicing Officer or Special Servicing Officer pursuant to this Agreement, (iii) in the case of the Trustee, a certificate signed by a Responsible Officer, (iv) in the case of a Seller, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, any Managing Director or Director, the President, or any Executive Vice President, any Senior Vice President, Vice President, Second Vice President or Assistant Vice President, (v) in the case of the Certificate Administrator or the Custodian, a certificate signed by a Responsible Officer, each with specific responsibilities for the matters contemplated by this Agreement; and (vi) in the case of any other Additional Servicer, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, or any Senior Vice President, Vice President or Assistant Vice President or an employee thereof designated as a Servicing Officer.
“Opinion of Counsel” means a written opinion of counsel addressed to the Trustee and the Certificate Administrator, reasonably acceptable in form and substance to the Trustee and the Certificate Administrator, and who is not in-house counsel to the party required to deliver such opinion but who, in the good faith judgment of the Trustee and the Certificate Administrator, is Independent outside counsel knowledgeable of the issues occurring in the practice of securitization with respect to any such opinion of counsel concerning the taxation, or status as a REMIC for tax purposes, of any REMIC Pool or status as a “grantor trust” under the Code of the Grantor Trust.
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“Other Advance Report Date” means with respect to a Non-Serviced Companion Loan, Serviced Companion Loan or B Note, as applicable, which has been deposited into a commercial mortgage securitization trust, the date under the related Other Companion Loan Pooling and Servicing Agreement that the related Other Master Servicer is required (pursuant to the terms thereof) to make a determination as to whether it will make a P&I Advance as required under such Other Companion Loan Pooling and Servicing Agreement.
“Other Certificate Administrator” means the applicable other “certificate administrator” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Companion Loan Pooling and Servicing Agreement” means a pooling and servicing agreement or trust and servicing agreement, as applicable, relating to a Non-Serviced Companion Loan or a Serviced Companion Loan that creates a commercial mortgage securitization trust, as applicable. The Other Companion Loan Pooling and Servicing Agreements related to the Trust as of the Closing Date are the CSAIL 2015-C3 Pooling and Servicing Agreement and the MSBAM 2015-C23 Pooling and Servicing Agreement. Any pooling and servicing agreement entered into in connection with the securitization of any portion of the 261 Fifth Avenue Companion Loan shall be an Other Companion Loan Pooling and Servicing Agreement.
“Other Controlling Class Representative” means the applicable other “controlling class representative”, if any, under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Custodian” means the applicable other “custodian” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Depositor” means the applicable other “depositor” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Indemnified Parties” has the meaning set forth in Section 1.6(j).
“Other Master Servicer” means the applicable other “master servicer” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other NRSRO” means a NRSRO that is not a Rating Agency.
“Other Securitization” means any commercial mortgage securitization trust that holds a Serviced Companion Loan or Non-Serviced Companion Loan or any successor REO Loan with respect thereto.
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“Other Special Servicer” means the applicable other “special servicer” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Transaction Party” means any party to an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Trust Advisor” means the applicable other “trust advisor” or “operating advisor”, if any, under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Other Trustee” means the applicable other “trustee” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan, a Serviced Companion Loan or B Note, as applicable.
“Ownership Interest” means, as to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.
“P&I Advance” means (other than with respect to a Serviced Companion Loan or a Serviced B Note) for any Distribution Date, subject to Section 4.1(d) of this Agreement: (i) with respect to any Mortgage Loan or Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled Payment (other than a Balloon Payment) due during the related Collection Period was not received by the Master Servicer as of the related Determination Date, the portion of such Scheduled Payment not received; (ii) with respect to any Mortgage Loan that is a Balloon Loan (excluding any REO Property as to which the related Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was due during or prior to the related Collection Period but was delinquent, in whole or in part, as of the related Determination Date, an amount equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon Loan for the related Collection Period, over any Late Collections or other amounts received in respect of such Balloon Payment during such Collection Period that are included in the Available Distribution Amount for such Distribution Date; and (iii) with respect to each REO Mortgage Loan, an amount equal to the excess, if any, of the Assumed Scheduled Payment thereof during the related Collection Period, over any remittances of REO Income to the Master Servicer by the Special Servicer that are included in the Available Distribution Amount for such Distribution Date; provided that the interest portion of any Scheduled Payment or Assumed Scheduled Payment shall be advanced at a per annum rate equal to the sum of the Net Mortgage Rate relating to such Mortgage Loan or such REO Mortgage Loan, the Certificate Administrator Fee Rate, the Trust Advisor Fee Rate and the CREFC® License Fee Rate, such that the Scheduled Payment or Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the Master Servicing Fee; provided, further, that the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which has been modified shall be calculated based on its terms as modified; provided, further, that the interest component of any P&I Advance with respect to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an amount equal to the product of (i) the amount of interest required to be advanced without giving effect to this proviso and (ii) a fraction, the numerator of which is the Stated Principal Balance of such
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Mortgage Loan immediately prior to the subject Distribution Date less any Appraisal Reduction applicable to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan or a Serviced Pari Passu Mortgage Loan, the portion of such Appraisal Reduction allocable (based upon their respective Unpaid Principal Balances) to such Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan under the related Intercreditor Agreement or related Non-Serviced Mortgage Loan Pooling and Servicing Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, Section 8.30 hereof), or in the case of an A/B Whole Loan, the portion of such Appraisal Reduction allocable to the A Note pursuant to the definition of “Appraisal Reduction”), and the denominator of which is the Stated Principal Balance of such Mortgage Loan immediately prior to the subject Distribution Date. All P&I Advances for any Mortgage Loans that have been modified shall be calculated on the basis of their terms as modified.
“P&I Advance Amount” means, with respect to any Mortgage Loan or any REO Mortgage Loan, the amount of the P&I Advance with respect thereto computed for any Distribution Date.
“Pari Passu Loan Nonrecoverable Advance” means any “Nonrecoverable Servicing Advance” (or analogous term) (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan pursuant to and in accordance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement; provided that if the applicable Non-Serviced Mortgage Loan Master Servicer shall have made a “Servicing Advance” (or analogous term) (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the nature of an expenditure benefiting the related Mortgaged Property generally, the portion thereof attributable to any Non-Serviced Mortgage Loan (after taking into account the amount attributable to any related B Note in accordance with the terms of the related Intercreditor Agreement) shall be determined based on the outstanding balances of such Non-Serviced Mortgage Loan and all the related pari passu loans secured by such Non-Serviced Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
“Pari Passu Loan Primary Servicing Fee Rate” means the “Master Servicing Fee Rate” (or analogous term) (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) and any other servicing fee rate (other than those payable to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any Non-Serviced Mortgage Loan. For the avoidance of doubt, (i) the Pari Passu Loan Primary Servicing Fee Rate for the Charles River Plaza North Mortgage Loan shall be 0.0025% per annum, (ii) the Pari Passu Loan Primary Servicing Fee Rate for the 261 Fifth Avenue Mortgage Loan (on and after the 261 Fifth Avenue Companion Loan Securitization Date) shall be the rate set forth in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement entered into in connection with the securitization of the 261 Fifth Avenue Companion Loan, not to exceed 0.0050% per annum, (iii) the Pari Passu Loan Primary Servicing Fee for The Mall of New Hampshire Mortgage Loan shall be 0.0025% per annum, and (iv) the Pari Passu Loan Primary Servicing Fee for the Aviare Place Apartments Mortgage Loan shall be 0.0050% per annum.
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“Participant” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Pass-Through Rate” or “Pass-Through Rates” means, for any Distribution Date: (a) with respect to any REMIC I Regular Interest, the related REMIC I Net Mortgage Rate; (b) with respect to any REMIC II Regular Interest, the Weighted Average REMIC I Net Mortgage Rate; (c) with respect to any Class X REMIC III Regular Interest, the Class X Strip Rate with respect to the Corresponding REMIC II Regular Interest; (d) with respect to any Class of Class X Certificates, (i) the weighted average of the Pass-Through Rates with respect to the related Class X REMIC III Regular Interests, weighted on the basis of the respective Notional Amounts of such Class X REMIC III Regular Interests immediately prior to such Distribution Date or (ii) if there is only one related Class X REMIC III Regular Interest, the Pass-Through Rate with respect to the related Class X REMIC III Regular Interest, as applicable; (e) with respect to the Class A-1 Certificates, 1.608% per annum; (f) with respect to the Class A-SB Certificates, 3.429% per annum; (g) with respect to the Class A-3 Certificates, 3.441% per annum; (h) with respect to the Class A-4 Certificates, 3.705% per annum; (i) with respect to the Class A-S Certificates, the lesser of the Weighted Average REMIC I Net Mortgage Rate and 3.989% per annum; (j) with respect to each Class of the Class B and Class C Certificates, the Weighted Average REMIC I Net Mortgage Rate; (k) with respect to the Class D Certificates, 3.167% per annum; and (k) with respect to each Class of the Class E, Class F, Class G and Class H Certificates, the Weighted Average REMIC I Net Mortgage Rate less 1.250%.
“PCAOB” means the Public Company Accounting Oversight Board.
“Penalty Charges” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair (including any related REO Property), any amounts actually collected thereon that represent Default Interest and/or Late Fees but excluding any amounts allocable to a Non-Serviced Mortgage Loan and its related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement.
“Percentage Interest” means: (a) with respect to each Certificate other than a Class V or Class R Certificate, the fraction of the relevant Class evidenced by such Certificate, expressed as a percentage (carried to four (4) decimal places and rounded, if necessary), the numerator of which is the Certificate Balance or Notional Amount, as applicable, represented by such Certificate as of the Closing Date as stated on the face of such Certificate, and the denominator of which is the Aggregate Certificate Balance or Notional Amount, as applicable, of all of the Certificates of the relevant Class as of the Closing Date as stated on the face of such Certificate; provided, that if at any time the Aggregate Certificate Balance or Notional Amount of such Class equals zero, the “Percentage Interest” with respect to each Certificate of such Class shall equal zero; and (b) with respect to each Class V and Class R Certificate, the percentage interest in distributions (if any) to be made with respect to the relevant Class, as stated on the face of such Certificate.
“Performing Party” has the meaning set forth in Section 13.12.
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“Permitted Special Servicer/Affiliate Fees” means any commercially reasonable treasury management fees, banking fees, customary title agent fees and insurance commissions or fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed hereunder by such party with respect to any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property.
“Permitted Transferee” means any Transferee other than: (a) a Disqualified Organization; (b) any other Person identified in an Opinion of Counsel delivered to the Certificate Administrator and the Trustee to the effect that the transfer of an ownership interest in any Class R Certificate to such Person may cause any REMIC Pool to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a non-United States Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a non-United States Tax Person or (e) a United States Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other United States Tax Person.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Phase I Environmental Report” means a report by an Independent Person who regularly conducts environmental site assessments in accordance with then current standards imposed by institutional commercial mortgage lenders and who has a reasonable amount of experience conducting such assessments.
“Plan” has the meaning set forth in Section 3.3(d).
“Plan Asset Regulations” means the Department of Labor regulations set forth in 29 C.F.R. § 2510.3-101.
“Planned Principal Balance” means for any Distribution Date, the balance shown for such Distribution Date on Schedule XV.
“Preliminary Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Prepayment Interest Excess” means, with respect to any Mortgage Loan as to which a full or partial Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation thereof) is made during that portion of any Collection Period after the related Due Date through and including the last day of the Collection Period, the amount of interest that accrues on the amount of such Principal Prepayment from such Due Date to the date such payment was made, plus (if made) any payment by the Mortgagor of interest that would have accrued to the next succeeding Due Date (net of the Master Servicing Fee, the Special Servicing Fee, the Trust Advisor Fee, the Certificate Administrator Fee, the CREFC® License Fee and any servicing fee, certificate administrator fee,
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trust advisor fee or trustee fee payable in connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan)), to the extent collected.
“Prepayment Interest Shortfall” means, with respect to any Mortgage Loan as to which a full or partial Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation thereof) is made during that portion of any Collection Period prior to the related Due Date in such Collection Period, an amount equal to the excess of (A) the aggregate amount of interest which would have accrued on the Stated Principal Balance of such Mortgage Loan if the Scheduled Payment had been paid on the related Due Date and such Principal Prepayment or Balloon Payment had not been made (net of the Master Servicing Fee, the Special Servicing Fee, the Trust Advisor Fee, the Certificate Administrator Fee, the CREFC® License Fee and any servicing fee, certificate administrator fee, trust advisor fee or trustee fee payable in connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan)) over (B) the aggregate interest that did so accrue through the date such payment was made (net of such fees).
“Prepayment Premium” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note for any Distribution Date, the prepayment premiums, yield maintenance charges or percentage premiums, if any, received during the related Collection Period in connection with Principal Prepayments on such Mortgage Loan, Serviced Companion Loan or Serviced B Note.
“Pricing Date” means September 14, 2015.
“Primary Collateral” means the portion of the Mortgaged Property securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is encumbered by a first mortgage lien.
“Principal Balance Certificates” means, collectively, the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
“Principal Distribution Amount” means on any Distribution Date, the amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other than the principal portion of Balloon Payments) and any Assumed Scheduled Payments, in each case, to the extent received or advanced, as the case may be, in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) for their respective Due Dates occurring during the related Collection Period; plus
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(ii) (x) all payments (including Principal Prepayments and the principal portion of Balloon Payments but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) and any other collections (including Liquidation Proceeds (other than the portion thereof, if any, constituting Excess Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received (including, in the case of any Non-Serviced Mortgage Loan, by the related Non-Serviced Mortgage Loan Master Servicer or Non-Serviced Mortgage Loan Special Servicer) on or in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) during the related Collection Period that were identified and applied by the Master Servicer or the Special Servicer as recoveries of principal thereof in accordance with this Agreement (exclusive of any portion thereof included as part of the Principal Distribution Amount for the immediately preceding Distribution Date pursuant to clause (I)(A)(ii)(y) of this definition) and (y) the principal portion of any Balloon Payments received on or in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer Remittance Date and remitted by the Master Servicer to the Distribution Account pursuant to Section 5.2(c) that were identified and applied by the Master Servicer or the Special Servicer as recoveries of principal thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in respect of the Mortgage Loans and any REO Mortgage Loans during the related Collection Period that, in each case, represents a delinquent amount as to which an Advance had been made, which Advance (or interest thereon) was previously reimbursed during the Collection Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement Amount for which a deduction was made under clause (II)(A) below with respect to a prior Distribution Date;
(C) the aggregate amount of any collections received on or in respect of the Mortgage Loans and any REO Mortgage Loans during the related Collection Period that, in each case, represents a recovery of an amount previously determined (in a Collection Period for a prior Distribution Date) to have been a Nonrecoverable Advance (or interest thereon) and for which a deduction was made under clause (II)(B) below with respect to a prior Distribution Date; and
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(D) any Actual Recoveries of amounts previously paid as Excess Trust Advisor Expenses to the extent such amounts had been allocated as a reduction of the Principal Distribution Amount on any prior Distribution Dates; over
(II) the sum of:
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee from amounts in the Collection Account allocable to principal received or advanced with respect to the Mortgage Loans and any REO Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II);
(B) the aggregate amount of Nonrecoverable Advances (and Advance Interest thereon) previously made in respect of any Mortgage Loan or REO Mortgage Loan that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee during the related Collection Period from amounts in the Collection Account allocable to principal received or advanced with respect to the Mortgage Loans and any REO Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II); and
(C) the amount of any Excess Trust Advisor Expenses allocated to reduce the Aggregate Certificate Balance of the Principal Balance Certificates (other than the Control Eligible Certificates) for such Distribution Date pursuant to Section 6.11.
“Principal Prepayment” means any voluntary or involuntary payment or collection of principal on a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note which is received or recovered in advance of its scheduled Due Date and applied to reduce the Unpaid Principal Balance of the Mortgage Loan, Serviced Companion Loan or Serviced B Note in advance of its scheduled Due Date, including, without limitation, all proceeds, to the extent allocable to principal, received from the payment of cash in connection with a substitution shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to be a Principal Prepayment.
“Private Placement Memorandum” has the meaning set forth in the Preliminary Statement hereto.
“Privileged Information” means any (i) correspondence or other communications between the Controlling Class Representative or a Loan-Specific Directing Holder, on the one hand, and the Special Servicer, the Master Servicer, the Certificate Administrator, the Custodian or the Trustee, on the other hand, related to any Specially Serviced Mortgage Loan or the exercise of the consent or consultation rights of the Controlling Class Representative or a Loan-Specific Directing Holder under this Agreement, (ii) correspondence or other communications between the Controlling Class Representative and a Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer or other party related to the exercise of any consultation rights with respect to a Non-Serviced Mortgage Loan,
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(iii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, and (iv) legally privileged information; provided that the summary of any Final Asset Status Report prepared pursuant to Section 10.5(a) is deemed not to be Privileged Information (although no such summary shall be made available to any Mortgagor, Manager, Affiliate of a Mortgagor or Manager or agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing that relates to the Mortgage Loan as to which the applicable Final Asset Status Report relates).
“Privileged Person” means the Depositor, the Underwriters, the Initial Purchasers, any Seller, the Master Servicer, the Special Servicer, any Excluded Special Servicer, the Rating Agencies, the Controlling Class Representative (during any Collective Consultation Period and any Subordinate Control Period), any Loan-Specific Directing Holder (if and for so long as it is the Loan-Specific Directing Holder with respect to the related A/B Whole Loan or Loan Pair, as the case may be), the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor, a designee of the Depositor and any Person who provides the Certificate Administrator with an Investor Certification or NRSRO Certification, as applicable, which Investor Certification or NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided that in no event shall a Mortgagor, a Manager, an Affiliate of a Mortgagor or Manager or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing be considered a Privileged Person (provided, further, that any Excluded Controlling Class Holder solely with respect to the related Excluded Controlling Class Mortgage Loan will not be considered a Privileged Person). The holder of any Serviced Companion Loan, B Note or Non-Serviced Companion Loan (in each case, including any trustee, master servicer, special servicer, controlling class representative, certificate administrator or custodian with respect to any securitization thereof) shall also be a Privileged Person to the extent any such party provides the Certificate Administrator a certification substantially in the form of Exhibit T hereto.
Notwithstanding the foregoing, the Controlling Class Representative, each Controlling Class Certificateholder and the Special Servicer shall be considered a Privileged Person with respect to any Mortgage Loan or Serviced Companion Loans for which it is not then a Borrower Party, and the limitations on access to information set forth in this Agreement shall apply only with respect the related Mortgage Loan for which the applicable party is a Borrower Party and only with respect to the related Excluded Information.
“Prohibited Party” means (i) a Person that is a proposed Servicing Function Participant that the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee, the Custodian, the Trust Advisor or any primary servicer, as applicable, seeks to retain as a Servicing Function Participant and that the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee, the Custodian, the Trust Advisor or any primary servicer, as applicable, has actual knowledge (obtained by written notice or through actual experience) has failed to comply (after any applicable cure period) with its Exchange Act or Regulation AB compliance obligations with respect to the Trust on any prior date or any other securitization transaction or (ii) any Person identified in writing (delivered prior to the date of retention) by the Depositor to the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee,
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the Custodian, the Trust Advisor or any primary servicer, as applicable, as a Person that the Depositor has knowledge has failed on any prior date to comply (after any applicable cure period) with its Exchange Act or Regulation AB obligations with respect to the Trust or any other securitization transaction.
“Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Prospectus Supplement” has the meaning set forth in the Preliminary Statement hereto.
“PTCE” has the meaning set forth in Section 3.3(d).
“Purchase Price” means, with respect to the purchase by the Seller or liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.17 under the circumstances set forth therein, a price equal to the sum (without duplication) of (A) 100% of the Unpaid Principal Balance of such Mortgage Loan or REO Mortgage Loan, plus (B) accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not including, the Due Date in the Collection Period in which such purchase or liquidation occurs, plus (C) the amount of any expenses related to such Mortgage Loan and any related Serviced Companion Loan, Serviced B Note or REO Property (including any Servicing Advances and any Advance Interest (which have not been paid by the Mortgagor on the related Mortgage Loan and any related Serviced Companion Loan or Serviced B Note) related to such Mortgage Loan and any related Serviced Companion Loan or Serviced B Note, the amount of any Servicing Advances (and Advance Interest thereon) that were reimbursed from collections on the other Mortgage Loans pursuant to Section 5.2(a)(II)(iii) and not subsequently recovered from the related Mortgagor, and all Special Servicing Fees and Liquidation Fees paid or payable with respect to the Mortgage Loan and any related Serviced Companion Loan or Serviced B Note) that are reimbursable or payable to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan Special Servicer, any Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Certificate Administrator, plus (D) if such Mortgage Loan or REO Mortgage Loan is being repurchased or substituted for by a Seller pursuant to the related Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Trustee or the Custodian in respect of the Material Breach or Material Document Defect giving rise to the repurchase or substitution obligation (and that are not otherwise included in clause (C) above) and any Liquidation Fee payable in connection with any such repurchase. With respect to a Joint Mortgage Loan, the Purchase Price for each of the applicable Sellers shall be its respective percentage interest as of the Closing Date of the total Purchase Price for such Joint Mortgage Loan.
“Purchase Proceeds” means any cash amounts received by the Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase of the Mortgage Loans and REO Properties by the Holders of the Controlling Class, the Special Servicer, the Master Servicer, the Holders of the Class R Certificates or any other applicable Person pursuant to Section 11.1(b), (iii) the purchase
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of an A Note by a holder of the related Serviced B Note in accordance with the terms of the related Intercreditor Agreement or (iv) the purchase of a Mortgage Loan by a holder of a mezzanine loan under the related mezzanine intercreditor agreement.
“Qualified Bidder” means as used in Section 8.29(c), a Person qualified to act as successor Master Servicer hereunder pursuant to Section 8.22(b).
“Qualified Institutional Buyer” means a qualified institutional buyer qualifying pursuant to Rule 144A.
“Qualified Insurer” means, (i) with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, an insurance company duly qualified as such under the laws of the state in which the related Mortgaged Property is located, duly authorized and licensed in such state to transact the applicable insurance business and to write the insurance but rated (a) no lower than “A3” by Moody’s (or, if not so rated by Moody’s, then either (1) an equivalent or higher rating by at least two NRSROs (which may include S&P and/or Fitch) or (2) an equivalent or higher rating by one NRSRO (which may include S&P and/or Fitch) and A.M. Best Company, Inc. or (3) Moody’s has issued a Rating Agency Confirmation with respect to such insurance company) and (b) no lower than “A” by Fitch (or, if not so rated by Fitch, (1) an equivalent (or higher) rating by at least (2) two NRSROs (which may include S&P and/or Moody’s) or (2) one NRSRO (which may include S&P and/or Moody’s) and A.M. Best Company, Inc., or (3) Fitch has issued a Rating Agency Confirmation with respect to such insurance company) and (ii) with respect to the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim paying ability with any one of the following ratings: (1) “A-“ or better by Fitch, (2) “A3” or better by Moody’s, (3) “A-” or better by S&P, (4) “A (low)” or better by DBRS or (5) “A:X” or better by A.M. Best Company, Inc., or (iii) in either case, an insurance company not satisfying clause (i) or (ii) but with respect to which a Rating Agency Confirmation is obtained from each Rating Agency. “Qualified Insurer” shall also mean any entity that satisfies all of the criteria, other than the ratings criteria, set forth in one of the foregoing clauses and whose obligations under the related insurance policy are guaranteed or backed by an entity that satisfies the ratings criteria set forth in such clause (construed as if such entity were an insurance company referred to therein).
“Qualifying Substitute Mortgage Loan” means, in the case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date of substitution, (i) has an outstanding principal balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of the Stated Principal Balance of the Deleted Mortgage Loan; provided, that, to the extent that the principal balance of such Mortgage Loan is less than the Stated Principal Balance of the Deleted Mortgage Loan, then such differential in principal amount, together with interest thereon at the Mortgage Rate on the related Mortgage Loan from the date as to which interest was last paid through the last day of the month in which such substitution occurs, shall be paid by the party effecting such substitution to the Master Servicer for deposit into the Collection Account, and shall be treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity not greater than, and not more than two (2) years less than, that of the Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than that of the Deleted Mortgage Loan and a current
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Loan-to-Value Ratio (equal to the outstanding principal balance on the date of substitution divided by its current Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current Debt Service Coverage Ratio equal to or greater than the current Debt Service Coverage Ratio of the Deleted Mortgage Loan; (v) will comply with all of the representations and warranties relating to Mortgage Loans set forth in the applicable Mortgage Loan Purchase Agreement, as of the date of substitution; (vi) has a Phase I Environmental Report relating to the related Mortgaged Property in its Mortgage Files and such Phase I Environmental Report does not, in the good faith reasonable judgment of the Special Servicer, consistent with the Servicing Standard, raise material issues that have not been adequately addressed; (vii) has an engineering report relating to the related Mortgaged Property in its Mortgage Files and such engineering report does not, in the good faith reasonable judgment of the Special Servicer, consistent with the Servicing Standard raise material issues that have not been adequately addressed; and (viii) as to which the Trustee and the Certificate Administrator have received an Opinion of Counsel, at the related Seller’s expense, that such Mortgage Loan is a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan may have a Maturity Date after the date three (3) years prior to the Rated Final Distribution Date, and provided, further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless a Rating Agency Communication has been provided to each Rating Agency, and provided, further, that, during any Subordinate Control Period, no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the Controlling Class Representative shall have approved of such substitution (provided, that such approval of the Controlling Class Representative may not be unreasonably withheld). If either one mortgage loan is substituted for more than one Deleted Mortgage Loan or more than one mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A) the principal balances referred to in clause (i) above shall be determined on the basis of aggregate principal balances and (B) the rates referred to in clause (ii) above and the remaining term to stated maturity referred to in clause (iii) above shall be determined on a weighted average basis (provided, that the Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less than the highest Pass-Through Rate of any outstanding Class of Certificates that is not based on, or subject to a cap equal to, the Weighted Average REMIC I Net Mortgage Rate). Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such substitution shall certify that such Mortgage Loan meets all of the requirements of this definition and shall send such certification to the Certificate Administrator, which shall deliver a copy of such certification to the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Controlling Class Representative promptly, and in any event within five (5) Business Days following the Certificate Administrator’s receipt of such certification.
“Rated Final Distribution Date” means with respect to each rated Class of Certificates, each REMIC I Regular Interest and each REMIC II Regular Interest, the Distribution Date in September 2048.
“Rating Agencies” means Fitch, KBRA, Moody’s and Morningstar; provided, that with respect to any matter affecting a Non-Serviced Mortgage Loan or any Serviced Companion Loan, “Rating Agency” shall also refer to any NRSRO engaged to rate the Serviced Companion Loan Securities or securities related to such Non-Serviced Mortgage Loan.
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“Rating Agency Communication” means any written communication intended for a Rating Agency, which shall be delivered at least ten (10) Business Days prior to completing such action, in electronic document format suitable for website posting to the 17g-5 Information Provider (which will be required to post such request on the 17g-5 Information Provider’s Website in accordance with Section 5.7).
“Rating Agency Confirmation” means, with respect to any matter, written confirmation (which may be in any format that is consistent with the policies, procedures or guidelines of the applicable Rating Agency at the time such Rating Agency Confirmation is sought, including, without limitation, by way of electronic communication, press release or any other written communication and need not be directed or addressed to any party to this Agreement) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade or withdrawal of the then-current rating assigned to any Class of Certificates or, if applicable, any class of Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan, in each case, if then rated by the Rating Agency; provided, that a written waiver or other acknowledgment from any Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation (or such other waiver as set forth in Section 1.7) is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter. At any time during which no Certificates, Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan are rated by a Rating Agency, no Rating Agency Confirmation shall be required from that Rating Agency.
“Rating Agency Inquiry” shall have the meaning set forth in Section 5.7(g).
“Realized Interest Loss” means, with respect to each Mortgage Loan (including an REO Mortgage Loan), (i) in the case of a Liquidation Realized Loss, the portion of any Liquidation Realized Loss that exceeds the Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss attributable to accrued interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an Expense Loss resulting in any period from the payment of the Special Servicing Fee and any Expense Losses treated as Realized Interest Losses pursuant to clause (iv) of the definition of “Realized Principal Loss” or (iv) in the case of a Modification Loss, a Modification Loss set forth in clause (iii) of the definition thereof.
“Realized Loss” means a Liquidation Realized Loss, a Modification Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan (including an REO Mortgage Loan).
“Realized Principal Loss” means, with respect to each Mortgage Loan (including an REO Mortgage Loan), (i) in the case of a Liquidation Realized Loss, the amount of such Liquidation Realized Loss, to the extent that it does not exceed the Unpaid Principal Balance (plus the amount of any Unliquidated Advance with respect to such Mortgage Loan) of the Mortgage Loan, (ii) in the case of a Modification Loss, the amount of such Modification Loss set forth in clause (i) of the definition thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Bankruptcy Loss attributable to the reduction in the principal balance of the related Mortgage Loan, (iv) in the case of an Expense Loss, the amount of such Expense Loss (other
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than Expense Losses resulting from the payment of Special Servicing Fees) to the extent that such Expense Loss does not exceed amounts collected in respect of the Mortgage Loans that were identified as allocable to principal in the Collection Period in which such Expense Losses were incurred, and any such excess shall be treated as a Realized Interest Loss, (v) any Nonrecoverable Advance reimbursed from collections of principal on the Mortgage Loans (including REO Mortgage Loans), and (vi) any Unliquidated Advance that is determined by the Master Servicer to be a Nonrecoverable Advance.
“Record Date” means, for each Distribution Date, the close of business on the last Business Day of the month immediately preceding the month in which such Distribution Date occurs.
“Recoveries” means, as of any Distribution Date, any amounts recovered with respect to a Mortgage Loan, a Serviced Companion Loan, a Serviced B Note or REO Property following the period in which a Final Recovery Determination occurs plus other amounts defined as “Recoveries” herein.
“Registered Certificates” has the meaning set forth in the Preliminary Statement hereto.
“Registered Global Certificate” means, with respect to any Registered Certificate, a single, permanent global Certificate, in definitive, fully registered form without interest coupons.
“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a written certification substantially in the form set forth in Exhibit F hereto certifying that a beneficial owner of an interest in a Regulation S Temporary Global Certificate is not a U.S. Person (as defined in Regulation S).
“Regulation S Global Certificates” means the Regulation S Permanent Global Certificates together with the Regulation S Temporary Global Certificates.
“Regulation S Permanent Global Certificate” means any single permanent global Certificate, in definitive, fully registered form without interest coupons received in exchange for a Regulation S Temporary Global Certificate.
“Regulation S Temporary Global Certificate” means, with respect to any Class of Certificates offered and sold outside of the United States in reliance on Regulation S, a single temporary global Certificate, in definitive, fully registered form without interest coupons.
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“Rehabilitated Mortgage Loan” means any Specially Serviced Mortgage Loan with respect to which (i) three (3) consecutive Scheduled Payments have been made (in the case of any such Mortgage Loan, Serviced Companion Loan or Serviced B Note that was modified, based on the modified terms), or a complete defeasance shall have occurred, (ii) no other Servicing Transfer Event has occurred and is continuing (or, with respect to determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other Appraisal Event has occurred and is continuing) and (iii) the Trust has been reimbursed for all costs incurred as a result of the occurrence of a Servicing Transfer Event (or such amounts constitute a Workout-Delayed Reimbursement Amount or such amounts have been forgiven). An A Note shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced B Note would constitute a Rehabilitated Mortgage Loan. A Serviced B Note shall not constitute a Rehabilitated Mortgage Loan unless its related Mortgage Loan and any related Serviced Companion Loan also would constitute a Rehabilitated Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Companion Loan and any related Serviced B Note also would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Pari Passu Mortgage Loan and any related Serviced B Note also would constitute a Rehabilitated Mortgage Loan
“Release Date” means the date forty (40) days after the later of (i) the commencement of the offering of the Certificates and (ii) the Closing Date.
“Relevant Servicing Criteria” means the Servicing Criteria applicable to each Reporting Servicer (as set forth, with respect to the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Custodian or the Certificate Administrator, on Schedule VIII attached hereto). For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or any Sub-Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or such Sub-Servicer.
“REMIC” means a real estate mortgage investment conduit within the meaning of Section 860D of the Code.
“REMIC I” means the segregated pool of assets consisting of the Mortgage Loans (other than any Excess Interest payable thereon), such amounts with respect thereto as shall from time to time be held in the Collection Account, the Excess Liquidation Proceeds Reserve Account, the TA Unused Fees Reserve Account, the Distribution Account (other than the portion thereof constituting the Excess Interest Sub-account) and the Interest Reserve Account, the Insurance Policies (other than the interests of the holder of any Non-Serviced Companion Loan or Serviced Companion Loan or Serviced B Note therein) and any REO Properties or beneficial interests therein (other than the interests of the holder of any Non-Serviced Companion Loan or any Serviced Companion Loan or Serviced B Note therein), for which a REMIC election will be made pursuant to Section 12.1(a) hereof. The Excess Interest on the ARD Mortgage Loans and the Excess Interest Sub-account shall constitute assets of the Trust but shall not be a part of any
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REMIC Pool formed hereunder. The Non-Serviced Companion Loans and any amounts payable thereon shall not constitute assets of the Trust or any REMIC Pool formed hereunder. No Serviced B Note or any amounts payable thereon shall constitute an asset of the Trust or any REMIC Pool formed hereunder. No Serviced Companion Loan or any amounts payable thereon shall constitute an asset of the Trust or any REMIC Pool formed hereunder.
“REMIC I Interests” means, collectively, the REMIC I Regular Interests and the REMIC I Residual Interest.
“REMIC I Net Mortgage Rate” means, with respect to any Distribution Date, as to any REMIC I Regular Interest, a rate per annum equal to: (a) if the related Mortgage Loan (including an REO Mortgage Loan) accrues interest on the basis of a 360-day year consisting of twelve (12) 30-day months (“30/360 Basis”), the Net Mortgage Rate thereof as of the Cut-off Date and without regard to any modification, waiver or amendment of the terms thereof following the Cut-off Date; and (b) if the related Mortgage Loan (including an REO Mortgage Loan) accrues interest on a basis other than a 30/360 Basis, the annualized rate at which interest would have to accrue in respect thereof on a 30/360 Basis for the related Mortgage Loan Accrual Period, in order to produce the amount of net interest that would have accrued during the related Mortgage Loan Accrual Period assuming a net interest rate equal to the rate set forth in clause (a) above and assuming an interest accrual basis that is the same as the actual interest accrual basis of such Mortgage Loan, provided that for purposes of this clause (b), commencing in 2016, (i) except with respect to the final Distribution Date, the REMIC I Net Mortgage Rate with respect to the subject REMIC I Regular Interest for the Distribution Dates in both January and February in any year that is not a leap year and in February in any year that is a leap year, shall be determined net of any amounts transferred to the Interest Reserve Account, and (ii) the REMIC I Net Mortgage Rate with respect to the subject REMIC I Regular Interest for the Distribution Date in March and the final Distribution Date shall be determined taking into account the addition of any amounts withdrawn from the Interest Reserve Account.
“REMIC I Principal Amount” means, with respect to any REMIC I Regular Interest, as of any date or time of determination, the then unpaid principal amount thereof, such amount being equal to the Cut-off Date Principal Balance of the related Mortgage Loan, minus (i) the amount of all principal distributions previously deemed made with respect to such REMIC I Regular Interest pursuant to Section 6.3(a) and (ii) all Collateral Support Deficits allocated to such REMIC I Regular Interest in reduction of its REMIC I Principal Amount pursuant to Section 6.6.
“REMIC I Regular Interests” means, collectively, the uncertificated interests designated as “regular interests” (within the meaning of the REMIC Provisions) in REMIC I, each of which relates to a separate specific Mortgage Loan (including any successor REO Mortgage Loan and any Qualifying Substitute Mortgage Loan that may replace such Mortgage Loan), has an initial REMIC I Principal Amount equal to the Cut-off Date Principal Balance of such Mortgage Loan, and has a Pass-Through Rate equal to the applicable REMIC I Net Mortgage Rate from time to time.
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“REMIC I Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC I evidenced by the Class R Certificates. The REMIC I Residual Interest has no principal amount or Pass-Through Rate.
“REMIC II” means the segregated pool of assets consisting of the REMIC I Regular Interests and related amounts in the Distribution Account for which a REMIC election will be made pursuant to Section 12.1(a) hereof.
“REMIC II Interests” means, collectively, the REMIC II Regular Interests and the REMIC II Residual Interest.
“REMIC II Principal Amount” means, with respect to any REMIC II Regular Interest, as of any date or time of determination, the then Aggregate Certificate Balance of the Class of Corresponding Certificates.
“REMIC II Regular Interest A-1” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-SB” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-SB Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-3” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-3 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-4” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-4 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-S” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-S Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest B” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate
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Balance of the Class B Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest C” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class C Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest D” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class D Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest E” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class E Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest F” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class F Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest G” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class G Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest H” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class H Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interests” means, collectively, the REMIC II Regular Interest A-1, the REMIC II Regular Interest A-SB, the REMIC II Regular Interest A-3, the REMIC II Regular Interest A-4, the REMIC II Regular Interest A-S, the REMIC II Regular Interest B, the REMIC II Regular Interest C, the REMIC II Regular Interest D, the REMIC II Regular Interest E, the REMIC II Regular Interest F, the REMIC II Regular Interest G and the REMIC II Regular Interest H.
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“REMIC II Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC II evidenced by the Class R Certificates. The REMIC II Residual Interest has no principal amount or Pass-Through Rate.
“REMIC III” means the segregated pool of assets consisting of the REMIC II Regular Interests and related amounts in the Distribution Account for which a REMIC election will be made pursuant to Section 12.1(a) hereof.
“REMIC III Interests” means, collectively, the REMIC III Regular Interests and the REMIC III Residual Interest.
“REMIC III Regular Certificates” means, collectively, the Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class X-E, Class X-FG, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
“REMIC III Regular Interests” means, collectively, the Class A-1 Certificates, Class A-SB Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-S Certificates, Class B Certificates, Class C Certificates, Class D Certificates, Class E Certificates, Class F Certificates, Class G Certificates, Class H Certificates and the Class X REMIC III Regular Interests.
“REMIC III Regular Interest X-A-1” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-1” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-1 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-1 from time to time.
“REMIC III Regular Interest X-A-SB” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-SB” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-SB outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-SB from time to time.
“REMIC III Regular Interest X-A-3” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-3” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-3 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-3 from time to time.
“REMIC III Regular Interest X-A-4” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-4” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-4 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-4 from time to time.
“REMIC III Regular Interest X-A-S” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-S” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of
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REMIC II Regular Interest A-S outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-S from time to time.
“REMIC III Regular Interest X-D” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-D” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest D outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest D from time to time.
“REMIC III Regular Interest X-E” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-E” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest E outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest E from time to time.
“REMIC III Regular Interest X-F” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-F” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest F outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest F from time to time.
“REMIC III Regular Interest X-G” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-G” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest G outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest G from time to time.
“REMIC III Regular Interest X-H” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-H” and has no principal amount, but has a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest H outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest H from time to time.
“REMIC III Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC III evidenced by the Class R Certificates. The REMIC III Residual Interest has no principal amount or Pass-Through Rate.
“REMIC Pool” means each of the three (3) segregated pools of assets designated as a REMIC pursuant to Section 12.1(a) hereof. For the avoidance of doubt, no BANA Lender Successor Borrower Right or UBSRES Seller Defeasance Rights and Obligations is a part of any “REMIC Pool”.
“REMIC Provisions” means the provisions of the federal income tax law governing the treatment of real estate mortgage investment conduits and their investors, including the conditions that must be satisfied for an arrangement to be treated as a REMIC and for a loan secured by an interest in real property to be a qualified mortgage, which appear in Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, related provisions, and final, temporary and proposed regulations and rulings promulgated thereunder, as the foregoing
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may be in effect from time to time and taking account, as appropriate, of any proposed legislation or regulations which, as proposed, would have an effective date prior to enactment or promulgation thereof. For the avoidance of doubt, the provisions of the mortgage documents with respect to a mortgage loan fail to comply with the “REMIC Provisions” if such mortgage documents permit transactions that would result in the mortgage loan failing to satisfy the definition of “qualified mortgage” under such federal income tax law.
“Rent Loss Policy” or “Rent Loss Insurance” means a policy of insurance generally insuring against loss of income or rent resulting from force majeure.
“Rents from Real Property” means, with respect to any REO Property, income of the character set forth in Section 856(d) of the Code.
“REO Account” shall have the meaning set forth in Section 9.14(a) hereof.
“REO Disposition” means the receipt by the Master Servicer or the Special Servicer of Liquidation Proceeds and other payments and recoveries (including proceeds of a final sale) from the sale or other disposition of REO Property.
“REO Income” means, with respect to any REO Property that had not been security for an A/B Whole Loan or Loan Pair for any Collection Period, all income received in connection with such REO Property during such period less any operating expenses, utilities, real estate taxes, management fees, insurance premiums, expenses for maintenance and repairs and any other capital expenses directly related to such REO Property paid during such period. With respect to any Non-Serviced Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage Loan Mortgage), the REO Income shall comprise only such portion of the foregoing that is allocable to the holder of such Non-Serviced Mortgage Loan.
“REO Loan” means any of an REO Mortgage Loan, REO Serviced B Note and REO Serviced Companion Loan.
“REO Mortgage Loan” means a Mortgage Loan as to which the related Mortgaged Property has become an REO Property. Such Mortgage Loan shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“REO Property” means a Mortgaged Property (or an interest therein, if the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing an A/B Whole Loan has been acquired by the Trust) acquired by the Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in connection with a Defaulted Loan or otherwise treated as foreclosure property under the REMIC Provisions; provided that a Mortgaged Property that secures a Non-Serviced Mortgage Loan shall constitute an REO Property if and when it is acquired under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement for the benefit of the Trustee as the holder of such Non-Serviced Mortgage Loan and of the holder of the related Non-Serviced Companion Loan(s) through foreclosure, acceptance of a deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in connection with a default or otherwise treated as foreclosure property under the REMIC
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Provisions. The Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
“REO Serviced B Note” means a Serviced B Note as to which the related Mortgaged Property has become an REO Property. Such Serviced B Note shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“REO Serviced Companion Loan” means a Serviced Companion Loan as to which the related Mortgaged Property has become an REO Property. Such Serviced Companion Loan shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“Report Date” means the second (2nd) Business Day before the related Distribution Date.
“Reportable Event” has the meaning set forth in Section 13.7.
“Reporting Requirements” has the meaning set forth in Section 13.12.
“Reporting Servicer” means the Master Servicer, the Special Servicer, the Trust Advisor and any Servicing Function Participant (including the Certificate Administrator, the Custodian, the Trustee (if and for such time as it is a Servicing Function Participant) and each Sub-Servicer), as the case may be.
“Repurchase Request Recipient” has the meaning set forth in Section 2.3(e).
“Repurchased Loan” has the meaning set forth in Section 2.3(a).
“Request for Release” means a request for release of certain documents relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
“Requesting Holders” has the meaning set forth in Section 6.9.
“Requesting Party” has the meaning set forth in Section 1.7.
“Required Appraisal Loan” means any Mortgage Loan, Loan Pair or A/B Whole Loan as to which an Appraisal Event has occurred. In the case of an A/B Whole Loan or Loan Pair, upon the occurrence of an Appraisal Event in respect of any related A Note or Serviced B Note or any related Serviced Pari Passu Mortgage Loan or Serviced Companion Loan, the related A/B Whole Loan or Loan Pair, as applicable, shall be deemed to be a single Required Appraisal Loan. A Mortgage Loan, Loan Pair or A/B Whole Loan will cease to be a Required Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
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“Reserve Accounts” means, collectively, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account.
“Responsible Officer” means, when used with respect to the Trustee, the Custodian or the Certificate Administrator, (i) any officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, assigned to the Corporate Trust Office of such party, in each case, with direct responsibility for the administration of this Agreement, (ii) with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iii) in the case of any certification required to be signed by a Responsible Officer, any officer whose name and specimen signature appear on a list of corporate trust officers furnished to the Master Servicer by the Trustee, the Custodian or the Certificate Administrator, as applicable, as such list may from time to time be amended.
“Rule 15Ga-1” means Rule 15Ga-1 under the Exchange Act.
“Rule 15Ga-1 Notice” has the meaning set forth in Section 2.3(e).
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Global Certificate” means, with respect to any Class of Certificates offered and sold in reliance on Rule 144A or to certain Institutional Accredited Investors, a single, permanent global Certificate, in definitive, fully registered form without interest coupons.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or its successor in interest. If neither such rating agency nor any successor remains in existence or is no longer an NRSRO with respect to commercial mortgage-backed securities, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).
“Sarbanes-Oxley Certification” has the meaning set forth in Section 13.6.
“Scheduled Payment” means each scheduled payment of principal of, and/or interest on, a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note required to be paid on its Due Date by the Mortgagor in accordance with the terms of the related Mortgage Note, Serviced Companion Loan or Serviced B Note (excluding all amounts of principal and interest which were due on or before the Cut-off Date, whenever received, and taking account of any modifications thereof and the effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for any Serviced Pari Passu Mortgage Loan or Serviced Companion Loan or any A Note or Serviced B Note shall be calculated without regard to the related Intercreditor Agreement.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
“Seller” means BANA or UBSRES as the case may be.
“Seller Sub-Servicer” means a sub-servicer or Additional Servicer required by a Seller to be retained by the Master Servicer or the Special Servicer, as applicable, as listed on Schedule XIII hereto.
“Senior Consultation Period” means a period when the Aggregate Certificate Balance of the Class E Certificates (without regard to any Appraisal Reductions allocable to such Class in accordance with Section 6.9) is less than 25% of the initial Aggregate Certificate Balance of the Class E Certificates. With respect to any Excluded Mortgage Loan, a Senior Consultation Period will be deemed to exist.
“Serviced B Note” means, with respect to any A/B Whole Loan or Loan Pair, any related subordinated note not included in the Trust, which is serviced pursuant to this Agreement and is subordinated in right of payment to the related Mortgage Loan to the extent set forth in the related Intercreditor Agreement. The only Serviced B Note related to the Trust as of the Closing Date is the 200 Helen Street B Note.
“Serviced Companion Loan” means a mortgage loan that is serviced under this Agreement, is not a “Mortgage Loan” included in the Trust, and is paid on a pari passu basis with a Mortgage Loan included in the Trust. The Serviced Companion Loans related to the Trust as of the Closing Date are the 261 Fifth Avenue Serviced Companion Loan and the WPC Department Store Portfolio Serviced Companion Loan. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Companion Loan shall cease to be a Serviced Companion Loan and shall be a Non-Serviced Companion Loan.
“Serviced Companion Loan Custodial Account” means each of the custodial sub-account(s) of the Collection Account (but which are not included in the Trust) created and maintained by the Master Servicer pursuant to Section 5.1(c) on behalf of the holder of the related Serviced Companion Loan. Any such sub-account(s) shall be maintained as a sub-account of an Eligible Account.
“Serviced Companion Loan Securities” means for so long as the Mortgage Loan or any successor REO Mortgage Loan is included in the Trust, any class of securities backed by the related Serviced Companion Loan. Any reference herein to a “series” of Serviced Companion Loan Securities shall refer to separate securitizations of one or more of the Serviced Companion Loans.
“Serviced Pari Passu Mortgage” means the Mortgage securing a Serviced Pari Passu Mortgage Loan and its related Serviced Companion Loan secured by the related Mortgaged Property. The Serviced Pari Passu Mortgages related to the Trust as of the Closing Date are the Mortgages securing the 261 Fifth Avenue Loan Pair and the WPC Department Store Portfolio. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the Mortgage securing the 261 Fifth Avenue Loan Pair shall cease to be a Serviced Pari Passu Mortgage.
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“Serviced Pari Passu Mortgage Loan” means a Mortgage Loan that is included in the Trust and is paid on a pari passu basis with a Serviced Companion Loan to the extent set forth in the related Intercreditor Agreement. The Serviced Pari Passu Mortgage Loans included in the Trust as of the Closing Date are the 261 Fifth Avenue Mortgage Loan and the WPC Department Store Portfolio Mortgage Loan. On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan shall cease to be a Serviced Pari Passu Mortgage Loan and shall be a Non-Serviced Mortgage Loan.
“Service(s)(ing)” means, in accordance with Regulation AB, the act of servicing and administering the Mortgage Loans or any other assets of the Trust by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities market.
“Servicer Errors and Omissions Insurance Policy” or “Errors and Omissions Insurance Policy” means an errors and omissions insurance policy maintained by the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
“Servicer Fidelity Bond” or “Fidelity Bond” means a bond or insurance policy under which the insurer agrees to indemnify the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, (subject to standard exclusions) for all losses (less any deductible) sustained as a result of any theft, embezzlement, fraud or other dishonest act on the part of the Master Servicer’s, the Special Servicer’s, the Trustee’s, the Custodian’s or the Certificate Administrator’s, as the case may be, officers or employees and is maintained in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
“Servicer Mortgage File” means copies of the mortgage documents listed in the definition of “Mortgage File” relating to a Mortgage Loan and shall also include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, any insurance policies or certificates (as applicable), any property inspection reports, any financial statements on the property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies.
“Servicer Termination Event” has the meaning set forth in Section 8.28(a).
“Servicing Advance” means any cost or expense of the Master Servicer, the Special Servicer or the Trustee, as the case may be, designated as a Servicing Advance pursuant to this Agreement and any other costs and expenses incurred by the Master Servicer, the Special
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Servicer or the Trustee, as the case may be, to protect and preserve the security for such Mortgage Loan and/or (if applicable) the related Serviced Companion Loan or Serviced B Note.
“Servicing Criteria” means the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.
“Servicing Function Participant” means any Person (including the Trustee, the Custodian and the Certificate Administrator), other than the Master Servicer, the Special Servicer and the Trust Advisor, that, within the meaning of Item 1122 of Regulation AB, is performing activities addressed by the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the Mortgage Loans (based on their Unpaid Principal Balance). The Trustee is a Servicing Function Participant only if, and for such time as, it has made an Advance during any calendar year covered by an Annual Report on Assessment of Compliance with Servicing Criteria.
“Servicing Officer” means, any officer or employee of the Master Servicer or an Additional Servicer, as the case may be, involved in, or responsible for, the administration and servicing of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee, the Custodian and the Certificate Administrator by the Master Servicer or an Additional Servicer, as the case may be, and signed by an officer of the Master Servicer or an Additional Servicer, as the case may be, as such list may from time to time be amended.
“Servicing Standard” means, with respect to the Master Servicer or the Special Servicer, as the case may be, to service and administer the Mortgage Loans (and any Serviced Companion Loan and Serviced B Note but not any Non-Serviced Mortgage Loan) that it is obligated to service and administer pursuant to this Agreement on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders (and in the case of any Serviced Companion Loan or Serviced B Note (taking into account the subordinate nature of any such Serviced B Note), the related holder of the Serviced Companion Loan or Serviced B Note, as applicable) as a collective whole (as determined by the Master Servicer or the Special Servicer, as the case may be, in its good faith and reasonable judgment), in accordance with applicable law, the terms of this Agreement and the terms of the respective Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (and, in the case of any Loan Pair or A/B Whole Loan, the related Intercreditor Agreement) and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in its general mortgage servicing and REO property management activities on behalf of third parties or on behalf of itself, whichever is higher, with respect to mortgage loans and REO properties that are comparable to those for which it is responsible hereunder;
(b) with a view to the timely collection of all Scheduled Payments of principal and interest under the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note or, if a Mortgage Loan, any Serviced Companion Loan or any Serviced B Note comes into and continues in default and with respect to the Special Servicer, if, in the good faith and reasonable judgment of the Special Servicer, no satisfactory arrangements
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can be made for the collection of the delinquent payments, the maximization of the recovery of principal and interest on such Mortgage Loan to the Certificateholders (as a collective whole) (or in the case of any A/B Whole Loan and its related Serviced B Note or any Loan Pair, the maximization of the recovery of principal and interest on such A/B Whole Loan or Loan Pair, as applicable, to the Certificateholders and the holder of any related Serviced B Note (taking into account the subordinate nature of any such Serviced B Note) or Serviced Companion Loan, as applicable, all taken as a collective whole) on a net present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the applicable Calculation Rate); and
(c) without regard to: (I) any other known relationship that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof may have with the related Mortgagor or any Affiliate of the related Mortgagor; (II) the ownership of any Certificate or any interest in any Non-Serviced Companion Loan, Serviced Companion Loan or B Note or any mezzanine loan related to a Mortgage Loan by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof; (III) the Master Servicer’s or the Special Servicer’s obligation to make Advances; (IV) the right of the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the case may be, to receive any compensation and/or reimbursement of costs, or the sufficiency of any compensation payable to it, hereunder or with respect to any particular transaction and (V) any obligation of the Master Servicer (or any Affiliate thereof) to repurchase any Mortgage Loan from the Trust.
“Servicing Transfer Event” means the occurrence of any of the following events: (i) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note is past due with respect to a Balloon Payment, and the Master Servicer or the Special Servicer has determined, in its good faith reasonable judgment in accordance with the Servicing Standard, that payment is unlikely to be made on or before the sixtieth (60th) day after the date on which such Balloon Payment was due (or if the Master Servicer has received, prior to the sixtieth (60th) day after the Due Date of such Balloon Payment, written evidence (which it shall promptly deliver to the Special Servicer) from an institutional lender of its binding commitment to refinance such Mortgage Loan, Serviced Companion Loan or Serviced B Note (which commitment must be reasonably acceptable to the Special Servicer), one hundred twenty (120) days succeeding the date on which such Balloon Payment was due; provided that if such refinancing does not occur during the time period specified in such written refinancing commitment, a Servicing Transfer Event shall be deemed to have occurred), or any other payment is more than sixty (60) days past due or has not been made on or before the second (2nd) Due Date following the Due Date such payment was due; (ii) either (A) the Mortgagor under any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note has, to the Master Servicer’s or the Special Servicer’s knowledge, consented to the appointment of a receiver or conservator in any insolvency or similar proceeding of, or relating to, such Mortgagor or to all or substantially all of its property, or (B) the Mortgagor has become the subject of a decree or order issued under a bankruptcy, insolvency or similar law and such decree or order shall have remained undischarged or unstayed for a period of sixty (60) days; (iii) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer has
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received notice of the foreclosure or proposed foreclosure of any other lien on the related Mortgaged Property; (iv) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer has obtained knowledge of a default (other than a failure by the related Mortgagor to pay principal or interest) that, in the good faith reasonable judgment of the Master Servicer or the Special Servicer, materially and adversely affects the interests of the Certificateholders or the holder of any related Serviced Companion Loan or Serviced B Note and which has occurred and remains unremedied for the applicable grace period specified in such Mortgage Loan (or, if no grace period is specified, sixty (60) days); (v) the Mortgagor under any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors or voluntarily suspends payment of its obligations; and (vi) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling Class Representative) has determined, in the good faith reasonable judgment of the Master Servicer or the Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling Class Representative), that (a) a payment default is imminent or is likely to occur within sixty (60) days, or (b) any other default is imminent or is likely to occur within sixty (60) days and such default, in the good faith reasonable judgment of the Master Servicer or the Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling Class Representative), is reasonably likely to materially and adversely affect the interests of the Certificateholders or the holder of any related Serviced Companion Loan or Serviced B Note (as the case may be); provided, that any determination under this clause (vi)(b) with respect to any Mortgage Loan (or Serviced B Note or Serviced Companion Loan, if applicable) solely by reason of the failure (or imminent failure) of the related Mortgagor to maintain or cause to be maintained insurance coverage against damages or losses arising from acts of terrorism may only be made by the Special Servicer if it determines that such default is not an Acceptable Insurance Default (and, during any Subordinate Control Period, with the consent of the Controlling Class Representative); provided, further, that (1) if the holder of any related Serviced B Note exercised its right to cure a monetary default and a monetary default occurs in the following month due to the holder of such Serviced B Note’s failure to cure, then servicing of such Mortgage Loan shall be transferred to the Special Servicer on the Business Day following the expiration of the Cure Period (as defined in the related Intercreditor Agreement) of the holder of such Serviced B Note if the holder of such Serviced B Note does not cure the current monetary default or (2) if the holder of any related Serviced B Note has exercised its right to cure the number of consecutive monetary defaults it is permitted to cure under the related Intercreditor Agreement and a monetary default occurs in the following month, then servicing of such Mortgage Loan shall be transferred to the Special Servicer at the expiration of the Mortgagor’s grace period for the current monetary default. If a Servicing Transfer Event occurs with respect to an A Note or a Serviced B Note, it shall be deemed to have occurred also with respect to its related Serviced B Note or A Note, as the case may be; and provided, further, that if a Servicing Transfer Event would otherwise have occurred with respect to an A Note, but has not so occurred solely because the holder of any related Serviced B Note has exercised its cure rights under the related
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Intercreditor Agreement, then a Servicing Transfer Event will not occur with respect to such A/B Whole Loan. If a Servicing Transfer Event occurs with respect to any Serviced Pari Passu Mortgage Loan or any Serviced Companion Loan, it shall be deemed to have occurred also with respect to the related Serviced Companion Loan or Serviced Pari Passu Mortgage Loan, respectively. Under the applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if a Servicing Transfer Event occurs with respect to any Non-Serviced Companion Loan or any related Serviced B Note, it shall be deemed to have occurred also with respect to the related Non-Serviced Mortgage Loan.
“Significant Obligor” means (a) any obligor (as defined in Item 1101(i) of Regulation AB) or group of affiliated obligors on any Mortgage Loan or group of Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Loans (by principal balance as of the Cut-off Date); or (b) any single Mortgaged Property or group of Mortgaged Properties securing any Mortgage Loan or group of cross-collateralized and/or cross-defaulted Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Loans (by principal balance as of the Cut-off Date). There is no Significant Obligor related to the Trust.
“Similar Laws” has the meaning set forth in Section 3.3(d).
“Single-Purpose Entity” means a Person, other than an individual, whose organizational documents provide substantially to the effect that it is formed or organized solely for the purpose of owning and collecting payments from Defeasance Collateral for the benefit of the Trust and which (i) does not engage in any business unrelated thereto and the financing thereof; (ii) does not have any assets other than those related to its interest in Defeasance Collateral; (iii) maintains its own books, records and accounts, in each case which are separate and apart from the books, records and accounts of any other Person; (iv) conducts business in its own name and uses separate stationery, invoices and checks; (v) does not guarantee or assume the debts or obligations of any other Person; (vi) does not commingle its assets or funds with those of any other Person; (vii) transacts business with affiliates on an arm’s length basis pursuant to written agreements; and (viii) holds itself out as being a legal entity, separate and apart from any other Person, and otherwise complies with the single-purpose requirements established by the Rating Agencies. The entity’s organizational documents also provide that any dissolution and winding up or insolvency filing for such entity requires the unanimous consent of all partners or members, as applicable, and that such documents may not be amended with respect to the Single-Purpose Entity requirements.
“Sole Certificateholder” means any Certificate Owner of a Book-Entry Certificate or a Holder of a Definitive Certificate (or any group of such Certificate Owners or Holders acting in unanimity) holding 100% of the then outstanding Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G and Class H Certificates; provided that the Aggregate Certificate Balances and Notional Amounts of the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class X-A, Class X-B, Class X-D, Class B, Class C and Class D Certificates have been reduced to zero.
“Space Lease” means the space or occupancy lease pursuant to which a Mortgagor holds a leasehold interest in the related Mortgaged Property, together with any
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estoppels or other agreements executed and delivered by the lessor in favor of the lender under the related Mortgage Loan(s).
“Special Notice” means any (a) notice transmitted to Certificateholders pursuant to Section 3.6(b) of this Agreement, (b) notice of any request by at least 25% of the aggregate Voting Rights of the Certificates to terminate and replace the Special Servicer pursuant to Section 9.30(c) of this Agreement and (c) notice of any request by at least 25% of the aggregate Voting Rights of the Certificates to terminate and replace the Trust Advisor pursuant to Section 10.12(b) of this Agreement.
“Special Servicer” means LNR Partners, LLC, or its successor in interest, or any successor Special Servicer appointed as herein provided (including with respect to any Excluded Special Servicer Mortgage Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 9.30(f) of this Agreement, as applicable and as the context may require).
“Special Servicer Compensation” means, with respect to any applicable period, the sum of the Special Servicing Fees, the Liquidation Fees and Workout Fees and any other amounts to be paid to the Special Servicer pursuant to the terms of this Agreement.
“Special Servicer Decisions” means any of the following:
(a) approving any waiver regarding the receipt of financial statements (other than immaterial timing waivers);
(b) agreeing to any modification, waiver, consent or amendment of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (i) a waiver of a Mortgage Loan event of default (but excluding non-monetary events of default other than defaults relating to transfers of interest in the Mortgagor or the existing collateral or material modifications of the existing collateral), (ii) a modification of the type of Defeasance Collateral required under the related Mortgage Loan documents such that Defeasance Collateral other than direct, non-callable obligations of the United States of America would be permitted or (iii) a modification that would permit a Principal Prepayment instead of defeasance if the related Mortgage Loan documents do not otherwise permit such Principal Prepayment; provided that the foregoing is not otherwise a Major Decision;
(c) in circumstances where no lender discretion is permitted other than confirming that the conditions in the related Mortgage Loan documents have been satisfied (including determining whether any applicable terms or tests have been satisfied), any request to incur additional debt in accordance with the terms of the related Mortgage Loan documents;
(d) approving easements that materially affect the use or value of a Mortgaged Property or the borrower’s ability to make payments with respect to the related Mortgage Loan;
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(e) in circumstances where no lender discretion is permitted other than confirming that the conditions in the applicable Mortgage Loan documents have been satisfied, any requests for the release of collateral or the acceptance of substitute or additional collateral for a Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair other than: (i) grants of easements or rights of way that do not materially affect the use or value of the Mortgaged Property or the Mortgagor’s ability to make any payments with respect to such Mortgage Loan, A/B Whole Loan or Loan Pair; (ii) the release of collateral securing such Mortgage Loan, A/B Whole Loan or Loan Pair in connection with a defeasance of such collateral; or (iii) that are related to any condemnation action that is pending, or threatened in writing, and would affect a non-material portion of the Mortgaged Property;
(f) any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit held as “performance,” “earn-out” or “holdback” escrows or reserves including the funding or disbursement of any such amounts with respect to the Mortgage Loans listed on Schedule XVII to this Agreement, other than routine and/or customary escrow and reserve fundings or disbursements for which the satisfaction of performance related criteria is not required pursuant to the terms of the related Mortgage Loan documents (for the avoidance of doubt, any request for the funding or disbursement of ordinary course impounds, repair and replacement reserves, lender approved budget and operating expenses, and tenant improvements pursuant to an approved lease, each in accordance with the Mortgage Loan documents or any other funding or disbursement as mutually agreed upon by the Master Servicer and the Special Servicer, shall not constitute a Special Servicer Decision);
(g) the modification, waiver, amendment, execution, termination or renewal of any lease (including entering into any related subordination, non-disturbance and attornment agreement), to the extent lender approval is required under the related Mortgage Loan documents and if such lease (i) involves a ground lease or lease of an outparcel or affects an area greater than or equal to the greater of (x) 10% of leasable space or (y) 20,000 square feet, (ii) is for over 50,000 square feet, or (iii) otherwise constitutes a “major lease” or “material lease,” if applicable, under the related Mortgage Loan documents, subject to any deemed approval expressly set forth in the related lease;
(h) any adoption or implementation of a budget submitted by a Mortgagor with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair (to the extent lender approval is required under the related Mortgage Loan documents), if (i) such Mortgage Loan, A/B Whole Loan or Loan Pair is on the CREFC® Servicer Watch List or (ii) such budget includes material (more than 10%) increases in operating expenses or payments to entities actually known by the Master Servicer to be Affiliates of the related Mortgagor (excluding affiliated managers paid at fee rates agreed to at the origination of the related Mortgage Loan, A/B Whole Loan or Loan Pair), subject in each case to any deemed approval expressly set forth in the related Mortgage Loan documents; and
(i) any determination as to whether or not to cure any borrower defaults relating to ground leases (or, with respect to leasehold interests that are Space Leases or
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air rights leases, Space Leases or air rights leases) that are part of the collateral for the related Mortgage Loan;
provided, however, with respect to clause (b) of this definition (1) the Master Servicer shall evaluate and process requests for any modifications described in sub-clauses (i) and (ii) of such clause and obtain the consent or deemed consent of the Special Servicer as provided in this Agreement and (2) the Special Servicer shall evaluate and process and/or consent to requests for any modifications described in sub-clause (iii) of such clause (b).
The Special Servicer shall be entitled to 100% of all fees related to any action taken solely by the Special Servicer in processing any Special Servicer Decision as described in Section 9.11(c) of this Agreement; provided, however, that with respect to clause (b) of this definition, the Master Servicer and the Special Servicer will each be entitled to 50% of any fee paid in connection with processing such Special Servicer Decision with respect to any non-Specially Serviced Mortgage Loan.
Notwithstanding the foregoing, the Master Servicer and the Special Servicer may mutually agree as provided in this Agreement that the Master Servicer shall process any of the foregoing matters with respect to any non-Specially Serviced Mortgage Loan. If the Master Servicer and the Special Servicer do mutually agree that the Master Servicer shall process a Special Servicer Decision, the Master Servicer shall be required to obtain the Special Servicer’s prior consent to such Special Servicer Decision and the Master Servicer and the Special Servicer shall each be entitled to 50% of any fee paid in connection with such Special Servicer Decision.
“Special Servicer Indemnification Parties” has the meaning set forth in Section 9.24(a).
“Special Servicer Losses” has the meaning set forth in Section 9.24(a).
“Special Servicer Remittance Date” means the Business Day following each Determination Date.
“Special Servicing Fee” means, with respect to each Specially Serviced Mortgage Loan and REO Loan (other than an REO Loan that was a Non-Serviced Mortgage Loan), an amount accrued during any Mortgage Loan Accrual Period at the Special Servicing Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Specially Serviced Mortgage Loan or REO Loan, as the case may be, during such related Mortgage Loan Accrual Period; provided that such amounts shall be prorated for partial periods (including by reason of a Mortgage Loan, Serviced B Note or Serviced Companion Loan being a Specially Serviced Mortgage Loan or REO Loan for only part of a related Mortgage Loan Accrual Period).
“Special Servicing Fee Rate” means, with respect to each Specially Serviced Mortgage Loan and REO Loan (other than an REO Loan that was a Non-Serviced Mortgage Loan), 0.25% per annum (or, if such rate would result in a Special Servicing Fee that would be less than $2,000 in any given month, such higher rate as would result in a Special Servicing Fee equal to $2,000 for such month).
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“Special Servicing Officer” means any officer or employee of the Special Servicer involved in, or responsible for, the administration and servicing of the Specially Serviced Mortgage Loans whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor and the Master Servicer by the Special Servicer signed by an officer of the Special Servicer, as such list may from time to time be amended.
“Specially Serviced Mortgage Loan” means, as of any date of determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note with respect to which the Master Servicer has notified the parties set forth in Section 8.1(b) that a Servicing Transfer Event has occurred, and the Special Servicer has received all information, documents and records relating to such Mortgage Loan, Serviced Companion Loan or Serviced B Note as reasonably requested by the Special Servicer to enable it to assume its duties with respect to such Mortgage Loan, Serviced Companion Loan or Serviced B Note. A Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and after the date on which the Special Servicer notifies the parties set forth in Section 8.1(b), that such Mortgage Loan has become a Rehabilitated Mortgage Loan with respect to all applicable Servicing Transfer Events and the Master Servicer has received all information, documents and records reasonably requested by it to enable it to perform its servicing duties in respect of such Mortgage Loan, unless and until the Master Servicer notifies the parties set forth in Section 8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan, Serviced Companion Loan or Serviced B Note exists or occurs.
“Standard Hazard Insurance Policy” means a fire and casualty extended coverage insurance policy in such amount and with such coverage as required by this Agreement.
“Startup Day” means, with respect to each of REMIC I, REMIC II and REMIC III, the day designated as such in Section 12.1(b).
“Stated Principal Balance” means, with respect to any Mortgage Loan (including an REO Mortgage Loan), as of any date of determination, for purposes of performing various calculations under this Agreement, an amount equal to the Cut-off Date Principal Balance thereof (or, in the case of a Qualifying Substitute Mortgage Loan, the outstanding principal balance thereof as of the date of substitution after taking into account all payment made or due during or prior to the month of substitution), as permanently reduced on each Distribution Date (to not less than zero) by (i) that portion, if any, of the Principal Distribution Amount for such Distribution Date described in clause (I)(A) of the definition of “Principal Distribution Amount” that is allocable to such Mortgage Loan, and (ii) any Realized Principal Loss incurred in respect of such Mortgage Loan during the related Collection Period (provided that, if some or all of a Realized Principal Loss constitutes an Advance that previously reduced the Stated Principal Balance thereof by operation of clause (i) above, then the amount of that Advance included in such Realized Principal Loss shall not further reduce the Stated Principal Balance thereof under this clause (ii), and provided that, for purposes of allocating Collateral Support Deficits to the respective Classes of the Principal Balance Certificates, a Realized Principal Loss shall not include any Trust Advisor Expense that has not been allocated pursuant to Section 6.11). Notwithstanding the foregoing, if a Cash Liquidation, a Principal Prepayment in full, a discounted payoff or an REO Disposition occurs in respect of any Mortgage Loan or any related
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REO Property, or, if any Mortgage Loan or any related REO Property is otherwise removed from the Trust, then the “Stated Principal Balance” thereof (including an REO Mortgage Loan) shall be zero commencing as of the first (1st) Distribution Date following the end of the applicable Collection Period in which such event occurred. The “Stated Principal Balance” of any B Note, Serviced Companion Loan or Non-Serviced Companion Loan shall equal its Unpaid Principal Balance as only reduced on each Distribution Date in accordance with the definition of “Unpaid Principal Balance” by principal amounts collected and/or losses incurred during the related Collection Period.
“Subcontractor” means any vendor, subcontractor or other Person that is not responsible for the overall servicing of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of the Master Servicer, the Special Servicer, an Additional Servicer or a sub-servicer.
“Subordinate Certificates” means, collectively, the Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
“Subordinate Control Period” means any period when the Aggregate Certificate Balance of the Class E Certificates (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) is at least 25% of the initial Aggregate Certificate Balance of the Class E Certificates.
“Sub-Servicer” means any Person that (1) is a Servicing Function Participant, (2) Services the assets of the Trust on behalf of (a) the Trust, (b) the Master Servicer, (c) the Special Servicer, (d) any Additional Servicer, (e) the Certificate Administrator, (f) the Custodian or (g) any other Person that otherwise constitutes a “Sub-Servicer” under Regulation AB, and (3) is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of Servicing functions that are required to be performed by the Trust, the Certificate Administrator, the Master Servicer, the Special Servicer or any Additional Servicer under this Agreement or any sub-servicing agreement (including any primary servicing agreement) and are identified in Item 1122(d) of Regulation AB.
“Successful Bidder” has the meaning set forth in Section 8.29(d).
“Surviving Sub-Servicer” has the meaning set forth in Section 8.4(a).
“TA Unused Fees” means any amounts in the nature of Trust Advisor Fees that were otherwise payable, as provided in this Agreement, to a Trust Advisor that has been terminated or resigned, if and to the extent such amounts are not payable to a replacement trust advisor.
“TA Unused Fees Reserve Account” means the TA Unused Fees Reserve Account maintained by the Certificate Administrator in accordance with the provisions of Section 5.3, which shall be a subaccount of an Eligible Account.
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“Tax Matters Person” means the person designated as the “tax matters person” of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
“Termination Price” has the meaning set forth in Section 11.1(b).
“The Mall of New Hampshire Directing Holder” means the “Controlling Note Holder” or any analogous concept under The Mall of New Hampshire Intercreditor Agreement.
“The Mall of New Hampshire Intercreditor Agreement” means the intercreditor, co-lender or comparable agreements between the initial holders of the promissory notes comprising The Mall of New Hampshire Non-Serviced Loan Combination.
“The Mall of New Hampshire Mortgage” means the Mortgage securing The Mall of New Hampshire Mortgage Loan and The Mall of New Hampshire Non-Serviced Companion Loan.
“The Mall of New Hampshire Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-2” and identified as “The Mall of New Hampshire” on the Mortgage Loan Schedule, and that is pari passu in right of payment with The Mall of New Hampshire Non-Serviced Companion Loan to the extent set forth in The Mall of New Hampshire Intercreditor Agreement. The Mall of New Hampshire Mortgage Loan is a “Mortgage Loan.”
“The Mall of New Hampshire Non-Serviced Companion Loan” means the promissory note designated as “Note A-1” that is included in the Trust and that is pari passu in right of payment with The Mall of New Hampshire Mortgage Loan to the extent set forth in The Mall of New Hampshire Intercreditor Agreement. The Mall of New Hampshire Non-Serviced Companion Loan is not a “Mortgage Loan.”
“The Mall of New Hampshire Non-Serviced Loan Combination” means, collectively, The Mall of New Hampshire Mortgage Loan and The Mall of New Hampshire Non-Serviced Companion Loan.
“Third Party Reports” means, with respect to any Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report or property condition report, if any.
“Threshold Event Collateral” means, with respect to any A/B Whole Loan or Loan Pair, any additional collateral posted by the holder of a related Serviced B Note under the related Intercreditor Agreement so as to enable such holder to remain the Loan-Specific Directing Holder with respect to such A/B Whole Loan or Loan Pair, as and to the extent provided for in the related Intercreditor Agreement.
“TIA” means the Trust Indenture Act of 1939.
“TIA Applicability Determination” shall have the meaning set forth in Section 14.20 of this Agreement.
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“Title Insurance Policy” means a title insurance policy maintained with respect to a Mortgage Loan issued on the date of origination of the related Mortgage Loan.
“Transfer” means any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.
“Transferee” means any Person who is acquiring by Transfer any Ownership Interest in a Certificate.
“Transferor” means any Person who is disposing by Transfer any Ownership Interest in a Certificate.
“Trust” means the trust created pursuant to this Agreement, the assets of which (the “Trust Fund”) consist of all the assets of REMIC I (including the Mortgage Loans (other than Excess Interest), such amounts related thereto as shall from time to time be held in the Collection Account, the Distribution Account, the Reserve Accounts, the Insurance Policies, any REO Properties or beneficial interests therein and other items referred to in Section 2.1(a) hereof); REMIC II; REMIC III; and the Excess Interest Sub-account and any Excess Interest on the Mortgage Loans. The Trust shall not include any Non-Serviced Companion Loan, any B Note, any interest of the holders of a B Note, any A/B Whole Loan Custodial Account, any Serviced Companion Loan, any interest of the holders of a Serviced Companion Loan or any Serviced Companion Loan Custodial Account. For the avoidance of doubt, no BANA Lender Successor Borrower Right or UBSRES Seller Defeasance Rights and Obligations is an asset of the Trust.
“Trust Advisor” means Pentalpha Surveillance LLC, or its successor in interest, or any successor Trust Advisor appointed as herein provided.
“Trust Advisor Annual Report” has the meaning set forth in Section 10.5(a)(iv).
“Trust Advisor Consulting Fee” means a fee for each Major Decision as to which the Trust Advisor has consulting rights equal to $10,000 with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or related A/B Whole Loan or Loan Pair, as applicable, or such lesser amount as the related Mortgagor agrees to pay, payable pursuant to Section 5.2(a)(iv) of this Agreement; provided, that the aggregate amount of such Trust Advisor Consulting Fees with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or related A/B Whole Loan or Loan Pair, as applicable, may not exceed $10,000 in any calendar year; provided, further, that no such fee shall be payable unless paid by the related Mortgagor. The Trust Advisor may in its sole discretion reduce the Trust Advisor Consulting Fee with respect to any Major Decision. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Trust Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard; provided, that the Master Servicer or the Special Servicer, as applicable, shall consult with the Trust Advisor prior to any such waiver or reduction. No Trust Advisor Consulting Fee shall be payable with respect to any B Note, any Non-Serviced Loan Combination or the 261 Fifth Avenue Loan Pair.
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“Trust Advisor Expense Interest Shortfall” means, with respect to each Class of the Class B, Class C and Class D Certificates for any Distribution Date, the aggregate amount of Trust Advisor Expenses allocated to such Class to reduce interest payments thereon on any prior Distribution Date (including as a payment to a more senior Class of Certificates in respect of interest shortfalls created by previously allocated Trust Advisor Expenses), to the extent not previously reimbursed to such Class pursuant to Section 6.5(a), 6.5(c) and/or Section 6.11.
“Trust Advisor Expenses” means, with respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or expenses payable to the Trust Advisor pursuant to this Agreement (other than the Trust Advisor Fee and other than any such indemnification amounts and expenses payable out of the TA Unused Fees Reserve Account and/or Actual Recoveries of Trust Advisor Expenses); provided that any increase in the Trust Advisor Fee that is payable out of the assets of the Trust (to the extent that such increase arises out of an increase in the per annum rate at which, or any other change to the manner in which, the Trust Advisor Fee is calculated) shall constitute a Trust Advisor Expense if such increase is effected without the consent of the Holders of Certificates representing 66-2/3% of the Voting Rights allocable to the Controlling Class.
“Trust Advisor Fee” means, with respect to each Mortgage Loan (other than the 261 Fifth Avenue Mortgage Loan and any Non-Serviced Mortgage Loan), including if such Mortgage Loan becomes an REO Mortgage Loan, for any related Mortgage Loan Accrual Period, an amount accrued at the applicable Trust Advisor Fee Rate during such related Mortgage Loan Accrual Period on the same principal balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan (or REO Mortgage Loan) during such Mortgage Loan Accrual Period, and prorated for partial periods. Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Trust Advisor under this Agreement.
“Trust Advisor Fee Rate” means 0.00195% per annum, with respect to each Mortgage Loan and any successor REO Mortgage Loan.
“Trust Advisor Standard” means the performance by the Trust Advisor of any of its obligations under this Agreement solely on behalf of the Trust in the best interest of, and for the benefit of, the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and not any particular Class of Certificateholders, as determined by the Trust Advisor in the exercise of its good faith and reasonable judgment.
“Trust Advisor Termination Event” has the meaning set forth in Section 10.12(a).
“Trust Fund” has the meaning set forth in the definition of “Trust”.
“Trust Mortgage File” means the mortgage documents listed in the definition of “Mortgage File” hereof pertaining to a particular Mortgage Loan (and, if applicable, the related Serviced Companion Loan and the related Serviced B Note) and any additional documents required to be added to the Mortgage File pursuant to this Agreement; provided that whenever the term “Trust Mortgage File” is used to refer to documents actually received by the Custodian
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(on behalf of the Trustee), such terms shall not be deemed to include such documents required to be included therein unless they are actually so received.
“Trust-Related Litigation” has the meaning set forth in Section 9.34(a).
“Trustee” means U.S. Bank National Association, as trustee, or its successor-in-interest, or if any successor trustee or any co-trustee shall be appointed as herein provided, then “Trustee” shall also mean such successor trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section 7.9 hereof), as the case may be.
“Trustee Fee” means the portion of the Certificate Administrator Fee payable to the Trustee in an amount agreed to between the Trustee and the Certificate Administrator.
“Trustee Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Trustee, the Depositor, the Initial Purchasers and the Underwriters, which agreement may be the same agreement as the Certificate Administrator Indemnification Agreement, if the Certificate Administrator and the Trustee are the same entity.
“UBSRES” has the meaning set forth in the Preliminary Statement hereto.
“UBSRES Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on Schedule II hereto (or, with respect to any Joint Mortgage Loan, UBSRES’ pro rata share of such Joint Mortgage Loans based on UBSRES’ percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“UBSRES Seller Defeasance Rights and Obligations” has the meaning set forth in Section 8.3(h) hereof.
“Unallocable Modification Fee” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair as to which a Modification Fee is collected, the lesser of (i) such Modification Fee, and (ii) 0.75% of the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair immediately following the related restructuring, modification, extension, waiver or amendment in connection with which such Modification Fee was collected.
“Underwriter” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, and, in each such case, its respective successor in interest.
“United States Tax Person” means a citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, an estate whose income is subject to United States federal income tax regardless of the source of its income, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on
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August 20, 1996 that have elected to be treated as United States Tax Persons). A person not described in the immediately preceding sentence shall nevertheless be treated as a United States Tax Person if (i) in the hands of such person the income from a Class R Certificate is effectively connected with the conduct of a trade or business within the United States and such person has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or other prescribed form or (ii) if in connection with the proposed transfer of a Class R Certificate, the transferor provides an opinion of counsel to the Certificate Registrar to the effect that such transfer will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.
“Unliquidated Advance” means any Advance previously made by a party hereto that has been previously reimbursed to that party by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan or REO Property in respect of which the Advance was made.
“Unpaid Interest” means: (a) with respect to any REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest for any Distribution Date subsequent to the initial Distribution Date, the portion of Distributable Interest for such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, remaining unpaid as the close of business on the preceding Distribution Date; and (b) with respect to any Class of REMIC III Regular Certificates, the portion of Distributable Certificate Interest for such Class remaining unpaid as of the close of business on the preceding Distribution Date. For avoidance of doubt, “Unpaid Interest” shall not include any reductions in Distributable Certificate Interest in respect of the Class B, Class C or Class D Certificates as a result of the allocation of Trust Advisor Expenses, except to the extent that there are Actual Recoveries of Trust Advisor Expenses allocated to such Class pursuant to Section 6.11 in respect of such reductions in Distributable Certificate Interest.
“Unpaid Principal Balance” means, with respect to any Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note (including a Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note that relates to an REO Property), as of any date of determination, an amount equal to the Cut-off Date Principal Balance of such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note (or, in the case of a Qualifying Substitute Mortgage Loan, the unpaid principal balance thereof outstanding as of the date of substitution after taking into account all principal and interest payments made or due during or prior to the month of substitution), reduced (to not less than zero) by (i) any payments or other collections of amounts allocable to principal with respect to such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note that have been collected or received on or prior to such date of determination, other than any Scheduled Payments due subsequent to such date of determination, and (ii) any Realized Principal Loss (or the equivalent) incurred in respect of such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note.
“Voting Rights” means the portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates. At all times during the term of this Agreement, the percentage of the Voting Rights assigned to each Class shall be: (a) in the case
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of the Class V and Class R Certificates, 0%; (b) in the case of any Class of Class X Certificates, a percentage equal to the product of (i) 1%, multiplied by (ii) a fraction, the numerator of which is the Notional Amount of such Class and the denominator of which is the aggregate of the Notional Amounts of all Classes of the Class X Certificates; and (c) in the case of any Class of Principal Balance Certificates, a percentage equal to the product of (i) 99% multiplied by (ii) a fraction, the numerator of which is equal to the Aggregate Certificate Balance of such Class and the denominator of which is equal to the Aggregate Certificate Balance of all Classes of Principal Balance Certificates; provided that, if the vote relates to the termination of the Special Servicer pursuant to Section 9.30 or the Trust Advisor pursuant to Section 10.12, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates pursuant to clause (c) of this definition shall be based on the Aggregate Certificate Balance of each Class of Principal Balance Certificates as notionally reduced by any Appraisal Reductions allocated to such Class. The Voting Rights of any Class of Certificates shall be allocated among Holders of Certificates of such Class in proportion to their respective Percentage Interests.
“Weighted Average REMIC I Net Mortgage Rate” means, with respect to any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of their respective REMIC I Principal Amounts as of the close of business on the preceding Distribution Date.
“WHFIT” means a “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
“WHFIT Regulations” means Treasury Regulations section 1.671-5, as amended.
“WHMT” means a “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(23) or successor provisions.
“Workout-Delayed Reimbursement Amount” has the meaning set forth in subsection (II)(i) of Section 5.2(a).
“Workout Fee” means a fee payable with respect to any Rehabilitated Mortgage Loan, equal to the lesser of (1) $1,000,000 in the aggregate with respect to any particular workout of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is a Specially Serviced Mortgage Loan and (2) the product of (x) 1.0% and (y) the amount of each collection of interest (other than default interest and any Excess Interest) and principal received (including any Condemnation Proceeds or Insurance Proceeds received and applied as a collection of such interest and principal) on such Mortgage Loan (including, for this purpose, any related Serviced Companion Loan or Serviced B Note, as applicable), for so long as it remains a Rehabilitated Mortgage Loan; provided, that the Workout Fee with respect to any Rehabilitated Mortgage Loan shall be reduced by the amount of any Excess Modification Fees actually received by the Special Servicer as additional servicing compensation (i) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior eighteen (18) months in connection with each modification, restructure, extension, waiver or amendment that constituted a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Specially Serviced Mortgage Loan and (ii) with respect to the
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related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior nine (9) months in connection with each modification, restructure, extension, waiver or amendment that constitutes a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Non-Specially Serviced Mortgage Loan, but, in each case, only to the extent those Excess Modification Fees have not previously been deducted from a Workout Fee or Liquidation Fee. Notwithstanding the foregoing, if a Mortgage Loan or Serviced Companion Loan becomes a Specially Serviced Mortgage Loan only because of an event described in clause (i) of the definition of “Servicing Transfer Event” as a result of a payment default on the related maturity date and the related collection of principal and interest is received within three (3) months following the related maturity date as a result of the related Mortgage Loan or Serviced Companion Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Workout Fee out of the proceeds received in connection with such workout if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Mortgagor and retain (x) a workout fee, (y) such other fees as are provided for in the related Mortgage Loan documents and (z) other appropriate fees in connection with such workout.
“WPC Department Store Portfolio Intercreditor Agreement” means the intercreditor, co-lender or comparable agreement between the initial holders of the WPC Department Store Portfolio Mortgage Loan and the WPC Department Store Portfolio Serviced Companion Loan.
“WPC Department Store Portfolio Loan Pair” means, collectively, the WPC Department Store Portfolio Mortgage Loan and the WPC Department Store Portfolio Serviced Companion Loan.
“WPC Department Store Portfolio Mortgage” means the Mortgage securing the WPC Department Store Portfolio Loan Pair.
“WPC Department Store Portfolio Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-2” and identified as “WPC Department Store Portfolio” on the Mortgage Loan Schedule and that is pari passu in right of payment with the WPC Department Store Portfolio Serviced Companion Loan to the extent set forth in the WPC Department Store Portfolio Intercreditor Agreement. The WPC Department Store Portfolio Mortgage Loan is a “Mortgage Loan.”
“WPC Department Store Portfolio Serviced Companion Loan” means, collectively, the promissory notes designated “Note A-1” and “Note A-3” that are not included in the Trust and are pari passu in right of payment with the WPC Department Store Portfolio Mortgage Loan to the extent set forth in the WPC Department Store Portfolio Intercreditor Agreement. The WPC Department Store Portfolio Serviced Companion Loan is not a “Mortgage Loan.”
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Section 1.2 Calculations Respecting Mortgage Loans.
(a) Calculations required to be made by the Certificate Administrator pursuant to this Agreement with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note shall be made based upon current information as to the terms of such Mortgage Loan, Serviced Companion Loan and Serviced B Note and reports of payments received from the Master Servicer on such Mortgage Loan, Serviced Companion Loan and Serviced B Note and payments to be made to the Certificate Administrator as supplied to the Certificate Administrator by the Master Servicer. The Certificate Administrator shall not be required to recompute, verify or recalculate the information supplied to it by the Master Servicer and may conclusively rely upon such information in making such calculations. If, however, a Responsible Officer of the Certificate Administrator has actual knowledge of an error in the calculations, the Certificate Administrator shall inform the Master Servicer of such error.
(b) All amounts collected by or on behalf of the Trust in respect of any Mortgage Loan (other than an REO Mortgage Loan) in the form of payments from the related Mortgagor, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (exclusive, if applicable, in the case of an A/B Whole Loan or Loan Pair, of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be allocated to amounts due and owing thereunder (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan documents and Intercreditor Agreement; provided, in the absence of such express provisions or if and to the extent that such terms authorize the mortgagee to use its discretion and in any event for purposes of calculating distributions hereunder after an event of default under the related Mortgage Loan, all such amounts collected (exclusive, if applicable, in the case of an A/B Whole Loan or Loan Pair, of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Mortgage Loan in the following order of priority:
(i) as a recovery of any unreimbursed Advances with respect thereto and unpaid interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Expenses with respect thereto;
(ii) as a recovery of Nonrecoverable Advances with respect thereto and any interest thereon to the extent previously reimbursed or paid, as the case may be, from collections on other Mortgage Loans (including REO Mortgage Loans);
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest thereon (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest thereon at the related Mortgage Rate to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full monthly payment from the related Mortgagor, through the related Due Date), over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with Appraisal Reductions (to the extent that collections have
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not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below on earlier dates);
(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal thereof then due and owing, including by reason of acceleration thereof following a default thereunder (or, if such Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining Unpaid Principal Balance);
(v) as a recovery of accrued and unpaid interest thereon to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with related Appraisal Reductions (to the extent that collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause (v) on earlier dates);
(vi) as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating thereto;
(vii) as a recovery of any other reserves to the extent then required to be held in escrow with respect thereto;
(viii) as a recovery of any Prepayment Premiums then due and owing thereunder;
(ix) as a recovery of any Default Interest or Late Fees then due and owing thereunder;
(x) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing thereunder;
(xi) as a recovery of any other amounts then due and owing thereunder other than remaining unpaid principal and, if applicable, accrued and unpaid Excess Interest (if both consent fees and Trust Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Trust Advisor Consulting Fees);
(xii) as a recovery of any remaining principal thereof, to the extent of its entire remaining Unpaid Principal Balance; and
(xiii) in the case of an ARD Mortgage Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;
provided that, to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of a Mortgaged Property if, immediately following such release, the loan-to-value ratio of the related Mortgage Loan exceeds 125% (based solely on the value of real property and excluding personal property and going concern value, if any), must be allocated to reduce the principal balance of the Mortgage Loan in the manner permitted by such REMIC Provisions.
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(c) Collections by or on behalf of the Trust in respect of the REO Property (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of an A/B Whole Loan or a Loan Pair, exclusive of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be deemed allocated for purposes of collecting amounts due under the related REO Mortgage Loan in the following order of priority:
(i) as a recovery of any unreimbursed Advances with respect thereto and unpaid interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Expenses with respect thereto;
(ii) as a recovery of Nonrecoverable Advances with respect thereto and any interest thereon to the extent previously reimbursed or paid, as the case may be, from collections on other Mortgage Loans (including REO Mortgage Loans);
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest thereon (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest thereon at the related Mortgage Rate to, but not including, the Due Date in the Collection Period in which such collections were received, over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with Appraisal Reductions (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below or Section 1.2(b)(v) on earlier dates);
(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal thereof to the extent of its entire unpaid principal balance;
(v) as a recovery of accrued and unpaid interest thereon to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with related Appraisal Reductions (to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) or Section 1.2(b)(v) on earlier dates);
(vi) as a recovery of any Prepayment Premiums then due and owing thereunder;
(vii) as a recovery of any Default Interest or Late Fees then due and owing thereunder;
(viii) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing thereunder;
(ix) as a recovery of any other amounts then due and owing thereunder other than, if applicable, accrued and unpaid Excess Interest (if both consent fees and Trust
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Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Trust Advisor Consulting Fees); and
(x) in the case of an REO Mortgage Loan that is an ARD Mortgage Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest.
(d) The applications of amounts received in respect of any Mortgage Loan pursuant to subsection (b) of this Section 1.2 shall be determined by the Master Servicer in accordance with the Servicing Standard. The applications of amounts received in respect of any REO Mortgage Loan or any REO Property pursuant to subsection (c) of this Section 1.2 shall be determined by the Special Servicer in accordance with the Servicing Standard.
(e) All net present value calculations and determinations made hereunder with respect to the Mortgage Loans or a Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made using the Calculation Rate.
Section 1.3 Calculations Respecting Accrued Interest. Accrued interest on any Certificate shall be calculated on a 30/360 Basis. Pass-Through Rates shall be carried out to eight (8) decimal places, rounded if necessary. All dollar amounts calculated hereunder shall be rounded to the nearest penny.
Section 1.4 Interpretation.
(a) Whenever the Agreement refers to a Distribution Date and a “related” Collection Period, Determination Date, Distribution Date Statement, Due Date, Interest Accrual Period, Master Servicer Remittance Date, Record Date, Report Date or Special Servicer Remittance Date, such reference shall be to the Collection Period, Determination Date, Distribution Date Statement, Due Date, Interest Accrual Period, Master Servicer Remittance Date, Record Date, Report Date or Special Servicer Remittance Date, as applicable, immediately preceding (or, in the case of a period, most recently ended prior to) such Distribution Date.
(b) As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.1 shall have the respective meanings given to them under generally accepted accounting principles or regulatory accounting principles, as applicable.
(c) The words “hereof,” “herein” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this agreement as a whole and not to any particular provision of this Agreement, and references to Sections, Schedules and Exhibits contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified.
(d) Whenever a term is defined herein, the definition ascribed to such term shall be equally applicable to both the singular and plural forms of such term and to masculine, feminine and neuter genders of such term.
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(e) References herein to “Articles”, “Sections”, “Subsections”, “Paragraphs” and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement.
(f) A reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions.
(g) The terms “include”, includes” or “including” shall mean without limitation by reason of enumeration.
(h) This Agreement is the result of arm’s-length negotiations between the parties and has been reviewed by each party hereto and its counsel. Each party agrees that any ambiguity in this Agreement shall not be interpreted against the party drafting the particular clause which is in question.
Section 1.5 ARD Loans. Notwithstanding any provision of this Agreement:
(a) With respect to any ARD Loans, the Excess Interest accruing as a result of the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the principal due on the Anticipated Repayment Date as specifically provided for in the related Mortgage Note shall not be taken into account for purposes of the definitions of “Appraisal Reduction,” “Assumed Scheduled Payment,” “Mortgage Rate,” “Prepayment Premium,” “Prepayment Interest Shortfall,” “Prepayment Interest Excess,” “Purchase Price” and “Realized Loss.”
(b) Excess Interest on the ARD Mortgage Loans shall constitute an asset of the Trust but not an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take any enforcement action with respect to the payment of Excess Interest on any Mortgage Loan unless the taking of such action is consistent with the Servicing Standard and all other amounts due under such Mortgage Loan have been paid, and, in the good faith and reasonable judgment of the Master Servicer and the Special Servicer, as the case may be, the Liquidation Proceeds expected to be recovered in connection with such enforcement action will cover the anticipated costs of such enforcement action and, if applicable, any associated interest thereon.
(d) Neither Liquidation Fees nor Workout Fees shall be deemed to be earned on Excess Interest, nor shall Excess Interest be included as part of any servicing compensation.
(e) With respect to an ARD Mortgage Loan, after its Anticipated Repayment Date, the Master Servicer or the Special Servicer, as the case may be, shall be permitted, in its discretion, to waive in accordance with and subject to Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related Maturity Date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all payments required by the Mortgage Loan in connection with such prepayment except for all or a portion of accrued Excess Interest, provided that the Master Servicer’s or the Special Servicer’s determination to waive the right to such accrued Excess Interest is in accordance with the Servicing Standard and with Section 8.18 and Section 9.5 hereof. The Master Servicer or the Special Servicer, as the
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case may be, will have no liability to the Trust, the Certificateholders or any other person so long as such determination is based on such criteria.
(f) With respect to an ARD Mortgage Loan, the Master Servicer or Special Servicer, as the case may be, may (but, consistent with the Servicing Standard, shall not be obligated to) take action to enforce the Trust’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents.
Section 1.6 Certain Matters with Respect to Loan Pairs, A/B Whole Loans and Non-Serviced Loan Combinations.
(a) The parties hereto acknowledge that, pursuant to the related Intercreditor Agreement, if a Serviced Pari Passu Mortgage Loan or A Note, as applicable, is no longer part of the Trust or is no longer serviced pursuant to the terms of this Agreement, the holder of such Serviced Pari Passu Mortgage Loan or A Note, as applicable, shall negotiate one or more new servicing agreements with the Master Servicer (or, if applicable, a Surviving Sub-Servicer) and the Special Servicer, provided that, prior to entering into any such new servicing agreement, the new holder of such Serviced Pari Passu Mortgage Loan or A Note, as applicable, shall provide to the holder of the related Serviced Companion Loan and/or Serviced B Note copies of written communications provided to each NRSRO then rating any securitization relating to such Serviced Companion Loan and/or Serviced B Note notifying such NRSROs of such new servicing agreement; provided, that prior to such time the Master Servicer (or, if applicable, a Surviving Sub-Servicer) and the Special Servicer shall continue to service the related Loan Pair and/or A/B Whole Loan to the extent provided in the related Intercreditor Agreement. The parties hereto further acknowledge that if a Serviced Pari Passu Mortgage Loan or A Note, as applicable, is no longer part of the Trust or is no longer serviced pursuant to the terms of this Agreement, the Master Servicer shall have no further obligation to make P&I Advances with respect to such Serviced Pari Passu Mortgage Loan or A Note, as applicable.
(b) For the avoidance of doubt and subject to subsection (a) above, the parties acknowledge that the rights and duties of each of the Master Servicer and the Special Servicer under Article VIII and Article IX and the obligation of the Master Servicer to make Advances, insofar as such rights, duties and obligations relate to any A/B Whole Loan (including both the related A Note and the related Serviced B Note) or Loan Pair, shall terminate upon the earliest to occur of the following with respect to such A/B Whole Loan or Loan Pair, as the case may be: (i) any repurchase of or substitution for the related A Note or Serviced Pari Passu Mortgage Loan by the applicable Seller pursuant to Section 2.3; (ii) any purchase of the related A Note or Serviced Pari Passu Loan by the owner of the related Serviced B Note or Serviced Companion Loan pursuant to the terms of the related Intercreditor Agreement; and (iii) any payment in full of any and all amounts due (or deemed due) under the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO Mortgage Loan) including amounts to which the holder of such A Note or Serviced Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement; provided, that this statement shall not limit (A) the duty of the Master Servicer or the Special Servicer to deliver or make available the reports otherwise required of it hereunder with respect to the Collection Period in which such event occurs or (B) the rights of the Master Servicer or the Special Servicer that may otherwise accrue or arise in connection with the
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performance of its duties hereunder with respect to such A/B Whole Loan or Loan Pair prior to the date on which such event occurs.
(c) In connection with any purchase described in clause (ii) of Section 1.6(b) or an event described in clause (iii) of Section 1.6(b), the Custodian, the Master Servicer and the Special Servicer shall each tender to (in the case of a purchase under such clause (ii)) the related purchaser (provided that the related purchaser shall have paid the full amount of the applicable purchase price) or (in the case of such clause (iii)) to the holder of the related Serviced Companion Loan or Serviced B Note (if then still outstanding), after delivery to them of a receipt executed by such purchaser or holder, all portions of the Mortgage File and other documents pertaining to such Loan Pair or A/B Whole Loan, as applicable, possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to such purchaser or holder (or the designee of such purchaser or holder) in the same manner, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which documents were previously assigned to the Trustee by the related Seller, but in any event, without recourse, representation or warranty; provided that such tender by such party shall be conditioned upon its receipt from the Master Servicer of a Request for Release. The Master Servicer shall, and is also hereby authorized and empowered by the Trustee to, convey to such purchaser or such holder any deposits then held in an Escrow Account relating to the applicable A/B Whole Loan or Loan Pair. If a Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan or an A Note and the related Serviced B Note are then REO Loans, then the Special Servicer shall, and is also hereby authorized and empowered by the Trustee to, convey to such purchaser or such holder, in each case, to the extent not needed to pay or reimburse the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator or the Trustee in accordance with this Agreement, deposits then held in the REO Account insofar as they relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as applicable, primarily to the administration of the Trust or any REMIC or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or expense or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against the holder of any Serviced Companion Loan or Serviced B Note and such holder shall not suffer any adverse consequences as a result of the payment of such expense.
(e) With respect to the Charles River Plaza North Non-Serviced Loan Combination, the parties hereto acknowledge and agree that (i) the Charles River Plaza North Mortgage Loan is pari passu in right of payment with the Charles River Plaza North Non-Serviced Companion Loans to the extent set forth in the Charles River Plaza North Intercreditor Agreement and (ii) the Charles River Plaza North Non-Serviced B Note is generally subordinate in right of payment to the Charles River Plaza North Mortgage Loan and the Charles River Plaza North Non-Serviced Companion Loans to the extent set forth in the Charles River Plaza North Intercreditor Agreement. The Charles River Plaza North Directing Holder shall at all times have consent rights and the right to direct the applicable Non-Serviced Mortgage Loan Master
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Servicer and Non-Serviced Mortgage Loan Special Servicer with respect to the administration of the Charles River Plaza North Non-Serviced Loan Combination as and to the extent set forth in the Charles River Plaza North Intercreditor Agreement; provided, that, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have certain limited non-binding consultation rights (and the Non-Serviced Mortgage Loan Master Servicer or the Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of the Charles River Plaza North Intercreditor Agreement) as and to the extent set forth in the Charles River Plaza North Intercreditor Agreement.
(f) The parties hereto acknowledge and agree that the 261 Fifth Avenue Mortgage Loan is pari passu in right of payment with the 261 Fifth Avenue Companion Loan to the extent set forth in the 261 Fifth Avenue Intercreditor Agreement. The 261 Fifth Avenue Directing Holder shall at all times have consent rights and the right to direct the Master Servicer and Special Servicer (or, on and after the 261 Fifth Avenue Companion Loan Securitization Date, the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer) with respect to the administration of the 261 Fifth Avenue Loan Pair as and to the extent set forth in the 261 Fifth Avenue Intercreditor Agreement; provided, that, on and after the 261 Fifth Avenue Companion Loan Securitization Date, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) shall have certain limited non-binding consultation rights (and the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of the 261 Fifth Avenue Intercreditor Agreement) as and to the extent set forth in the 261 Fifth Avenue Intercreditor Agreement.
In connection with the securitization of the 261 Fifth Avenue Companion Loan while it is a Serviced Companion Loan, upon the request of (and at the expense of) the related Serviced Companion Loan holder, each of the Master Servicer and the Special Servicer, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Loan holder in attempting to cause the related Mortgagor to provide information relating to the 261 Fifth Avenue Loan Pair and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to an Other Securitization that will include such Serviced Companion Loan.
On and after the 261 Fifth Avenue Companion Loan Securitization Date, the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Companion Loan, collectively, shall be a “Non-Serviced Loan Combination,” the 261 Fifth Avenue Companion Loan shall be a “Non-Serviced Companion Loan,” and the 261 Fifth Avenue Mortgage Loan shall be a “Non-Serviced Mortgage Loan.”
(g) On the 261 Fifth Avenue Companion Loan Securitization Date (i) the Custodian shall, upon receipt of a Request for Release, transfer the Mortgage File (other than the promissory note(s) evidencing the 261 Fifth Avenue Mortgage Loan, and any accompanying allonges, the originals of which shall be retained by the Custodian) for the 261 Fifth Avenue
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Loan Pair to the applicable Other Custodian, retain a copy of each such transferred document and otherwise take all actions reasonably necessary for the transfer of custody of such Mortgage Loan documents to such Other Custodian, (ii) upon receipt of written request and proposed assignment documentation, the Master Servicer (pursuant to the power of attorney executed by the Trustee pursuant to Section 2.3(b)) shall execute assignment documentation reasonably acceptable to it and reasonably necessary to assign to the Other Trustee the applicable Mortgage Loan documents related to the 261 Fifth Avenue Loan Pair and (iii) upon receipt of written request, the Master Servicer shall transfer the Servicer Mortgage File for, and otherwise take all actions reasonably necessary for the transfer of the servicing of, the 261 Fifth Avenue Loan Pair to the Other Master Servicer.
(h) With respect to The Mall of New Hampshire Non-Serviced Loan Combination, the parties hereto acknowledge and agree that The Mall of New Hampshire Mortgage Loan is pari passu in right of payment with The Mall of New Hampshire Non-Serviced Companion Loan to the extent set forth in The Mall of New Hampshire Intercreditor Agreement. The Mall of New Hampshire Directing Holder shall at all times have consent rights and the right to direct the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer with respect to the administration of The Mall of New Hampshire Non-Serviced Loan Combination as and to the extent set forth in The Mall of New Hampshire Intercreditor Agreement; provided, that, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have certain limited non-binding consultation rights (and the Non-Serviced Mortgage Loan Master Servicer or the Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of The Mall of New Hampshire Intercreditor Agreement) as and to the extent set forth in The Mall of New Hampshire Intercreditor Agreement.
(i) With respect to the WPC Department Store Portfolio Loan Pair, the parties hereto acknowledge and agree that the WPC Department Store Portfolio Mortgage Loan is pari passu in right of payment with the WPC Department Store Portfolio Serviced Companion Loan to the extent set forth in the WPC Department Store Portfolio Intercreditor Agreement. At no time shall any holder of the WPC Department Store Portfolio Serviced Companion Loan be the Loan-Specific Directing Holder for the WPC Department Store Portfolio Loan Pair; provided, that, the holder of the WPC Department Store Portfolio Serviced Companion Loan shall have certain limited non-binding consultation rights (and the Master Servicer or the Special Servicer, as appropriate in light of the circumstances, shall use reasonable efforts to consult with such holder to the extent such holder requests consultation) as and to the extent set forth in the WPC Department Store Portfolio Intercreditor Agreement.
(j) With respect to the Aviare Place Apartments Non-Serviced Loan Combination, the parties hereto acknowledge and agree that the Aviare Place Apartments Mortgage Loan is pari passu in right of payment with the Aviare Place Apartments Non-Serviced Companion Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. The Aviare Place Apartments Directing Holder shall at all times have consent rights and the right to direct the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer with respect to the administration of the Aviare Place
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Apartments Non-Serviced Loan Combination as and to the extent set forth in the Aviare Place Apartments Intercreditor Agreement; provided, that, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have certain limited non-binding consultation rights (and the Non-Serviced Mortgage Loan Master Servicer or the Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of the Aviare Place Apartments Intercreditor Agreement) as and to the extent set forth in the Aviare Place Apartments Intercreditor Agreement.
(k) Any Other Depositor, Other Master Servicer, Other Special Servicer, Other Certificate Administrator, Other Trustee and Other Trust Advisor (and any director, officer, employee or agent of any of the foregoing) (collectively, the “Other Indemnified Parties”) shall be indemnified by the Trust against, and the Trust shall promptly reimburse such Other Indemnified Parties for, any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the related Non-Serviced Mortgage Loan under the related Other Companion Loan Pooling and Servicing Agreement, this Agreement or the related Intercreditor Agreement (or, with respect to the related Other Trust Advisor, incurred in connection with the provision of services for such Non-Serviced Mortgage Loan) (but excluding any such losses allocable to the related Non-Serviced Companion Loans) to the extent of its pro rata share of such indemnified items; provided, that such indemnification will not extend to any losses, liabilities, costs or expenses: (i) specifically required to be borne by such party, without right of reimbursement, pursuant to the terms of the related Other Companion Loan Pooling and Servicing Agreement; (ii) incurred in connection with any legal action or claim against such party resulting from any breach of a representation or warranty made by such person under the related Other Companion Loan Pooling and Servicing Agreement; or (iii) incurred in connection with any legal action or claim against such party resulting from any willful misfeasance, bad faith or negligence in the performance of such person’s obligations and duties under the related Other Companion Loan Pooling and Servicing Agreement or the related Intercreditor Agreement or resulting from negligent disregard of such obligations and duties.
(l) Promptly following the Closing Date, with respect to any Loan Pair, the Master Servicer shall deliver to any holder of the related Serviced Companion Loan (or Other Master Servicer, Other Special Servicer and Other Trustee on its behalf) written notice of the securitization of the related Mortgage Loan stating that, as of the Closing Date, the Trustee is the holder of the applicable Mortgage Loan. Such notice shall be accompanied by the name and contact information of each of the Trustee, the Master Servicer and the Special Servicer.
(m) With respect to any Loan Pair, the Master Servicer and the Special Servicer shall provide each Other Master Servicer and Other Special Servicer that is servicing or otherwise has duties with respect to a related Serviced Companion Loan such information as is necessary to enable each such Other Master Servicer or Other Special Servicer to perform its related servicing and other duties under the related Other Companion Loan Pooling and Servicing Agreement.
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(n) To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to any Intercreditor Agreement for a Loan Pair or a Non-Serviced Loan Combination are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.
Section 1.7 Rating Agency Confirmations.
(a) Notwithstanding the terms of any related Mortgage Loan documents or other provisions of this Agreement, if any action under any Mortgage Loan documents or this Agreement requires a Rating Agency Confirmation as a condition precedent to such action, if the party (the “Requesting Party”) attempting to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within ten (10) Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (i) such Requesting Party shall (without providing notice to the 17g-5 Information Provider) confirm that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again and (ii) if there is no response to either such Rating Agency Confirmation request within five (5) Business Days of such second request or such Rating Agency has responded in a manner that indicates it is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, (x) with respect to any such condition in any Mortgage Loan document requiring such Rating Agency Confirmation or any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) below), the Requesting Party (or, if the Requesting Party is the related Mortgagor, then the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Loans), as applicable) shall determine, in accordance with its duties under this Agreement and, in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard, whether or not such action would be in the best interests of the Certificateholders and, in the case of an A/B Whole Loan or Loan Pair, Certificateholders and any holder of any related Serviced B Note or Serviced Companion Loan (as a collective whole as if such Certificateholders and Serviced B Note or Serviced Companion Loan holder constituted a single lender), and if the Requesting Party (or, if the Requesting Party is the related Mortgagor, then the Master Servicer or the Special Servicer, as applicable) determines that such action would be in the best interest of such parties, then the requirement for a Rating Agency Confirmation will be deemed not to apply, and (y) with respect to a replacement of the Master Servicer or Special Servicer, such condition shall be deemed to be satisfied (i) if Moody’s or KBRA is the non-responding Rating Agency, the non-responding Rating Agency has not cited servicing concerns of the applicable replacement as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other CMBS transaction rated by such non-responding Rating Agency and serviced by the applicable servicer prior to the time of determination; (ii) if Fitch is the non-responding Rating Agency, the applicable replacement is rated at least “CMS3” (in the case of the Master Servicer) or “CSS3” (in the case of the Special Servicer); or (iii) if Morningstar is the non-responding Rating Agency, such replacement master servicer or special servicer is acting as master servicer or special servicer, as applicable, in a
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commercial mortgage loan securitization that was rated by an NRSRO within the twelve (12) month period prior to the date of determination and Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of such commercial mortgage-backed certificates citing servicing concerns with the replacement master servicer or special servicer, as applicable, as the sole or material factor in such rating action.
Promptly following the Master Servicer’s or Special Servicer’s determination to take any action discussed in this Section 1.7(a) following any requirement to obtain a Rating Agency Confirmation being considered satisfied, the Master Servicer or Special Servicer, as the case may be, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 5.7 of this Agreement.
(b) Notwithstanding anything to the contrary in this Section 1.7, for purposes of the provisions of any Mortgage Loan document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral), release or substitution of any collateral, any Rating Agency Confirmation requirement in the Mortgage Loan documents with respect to which the Master Servicer or Special Servicer would have been required to make the determination described in Section 1.7(a) shall be deemed not to apply regardless of any such determination by the Requesting Party (or, if the Requesting Party is the related Mortgagor, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Loans), as applicable); provided, that the Requesting Party (or the Master Servicer or the Special Servicer, as applicable) shall in any event review the other conditions required under the related Mortgage Loan documents with respect to such defeasance, release or substitution and confirm to its satisfaction in accordance with the Servicing Standard that such conditions (other than the requirement for a Rating Agency Confirmation) have been satisfied.
(c) For all other matters or actions not specifically discussed in Section 1.7(a) above, the applicable Requesting Party shall deliver a Rating Agency Confirmation from each Rating Agency.
(d) Unless otherwise indicated herein, all notices and Rating Agency Communications and requests for Rating Agency Confirmations to the Rating Agencies shall be in writing and sent by first class mail, telecopy, electronic mail or overnight courier, as follows:
If to Fitch, to:
Fitch Ratings, Inc.
33 Whitehall Street
New York, New York 10004
Fax: (212) 635-0294
Attention: Commercial Mortgage Surveillance
Email: info.cmbs@fitchratings.com
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If to KBRA, to:
Kroll Bond Rating Agency, Inc.
845 Third Avenue
New York, New York 10022
Attention: CMBS Surveillance
E-mail: CMBSSurveillance@krollbondratings.com
If to Moody’s, to:
Moody’s Investors Service, Inc.
7 World Trade Center
New York, New York 10007
Fax: (212) 553-0300
Attention: Commercial Mortgage Surveillance Group
Email: CMBSSurveillance@moodys.com
If to Morningstar, to:
Morningstar Credit Ratings, LLC
220 Gibraltar Road, Suite 300
Horsham, Pennsylvania 19044
Attention: CMBS Surveillance
E-mail: cmbsratings@morningstar.com
or at such other address as shall be provided in writing to the Depositor by such Rating Agency, which other address the Depositor shall promptly provide to the other parties hereto.
(e) The delivery of any notice, document, information or communication to a Rating Agency shall be subject to Section 5.7. Any Rating Agency Confirmation request made by the Master Servicer, Special Servicer, Certificate Administrator, the Custodian or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 5.7.
ARTICLE
II
DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, the Depositor does hereby establish a trust designated as “Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7” and assign in trust to the Trustee, without recourse, for the benefit of the Certificateholders all
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the right, title and interest of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, all distributions with respect thereto payable after the Cut-off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Collection Account and the Reserve Accounts, (ii) the Depositor’s rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor’s rights under any Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan and (v) all other assets included or to be included in REMIC I or the Grantor Trust. Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans and due after their respective Due Dates in September 2015. The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after September 1, 2015. The transfer and assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the terms and conditions of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement, hereby agrees that such Mortgage Loans remain subject to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement and, with respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, the related Intercreditor Agreement. The transfer and assignment of any A Notes and any Serviced Pari Passu Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the terms of the related Intercreditor Agreements, and the Trustee, by the execution and delivery of this Agreement, hereby agrees, that such Mortgage Loans remain subject to the terms of the related Intercreditor Agreements (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and Section 8.30 hereof).
(b) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with the Custodian (on behalf of the Trustee), on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of “Mortgage File.” Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Custodian (on behalf of the Trustee) the remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee, the Certificate Administrator, any Custodian, the Master Servicer or the Special Servicer shall be liable for any failure by any Seller or the Depositor to comply with the document delivery requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b). Promptly upon receipt (but no later than ten (10) Business Days after the Closing Date), the Custodian shall deliver to the Master Servicer each original letter of credit set forth on Schedule XIV hereto, and the Master Servicer shall hold such original letters of credit on behalf of the Trustee pursuant to and in accordance with clause (xii) of the definition of “Mortgage File”. Notwithstanding anything to
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the contrary contained herein, with respect to a Joint Mortgage Loan, the obligations of each of the applicable Sellers to deliver a Mortgage Note to the Custodian (on behalf of the Trustee), shall be limited to delivery of only the Mortgage Note held by such party to the Custodian (on behalf of the Trustee). With respect to a Joint Mortgage Loan, the obligations of the applicable Sellers to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the applicable Sellers may deliver one Mortgage File or one of any other document required to be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each of the applicable Sellers.
(c) The applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement, at the expense of such Seller as to each of its respective Mortgage Loans (other than with respect to any Non-Serviced Mortgage Loan), (i) in the case of clauses (iv) and (vi)(B) of the definition of “Mortgage File” within forty-five (45) days following the Closing Date and (ii) in the case of clause (ix)(B) of the definition of “Mortgage File” within ninety (90) days following the Closing Date, to deliver for submission for recording or filing by the Depositor, the Custodian (on behalf of the Trustee) or the agents of either, as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of “Mortgage File.” Each such assignment shall reflect that it should be returned by the public recording office to the Custodian (on behalf of the Trustee) following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a certified copy of the recorded original and forward such copy to the Custodian (on behalf of the Trustee) and the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to the applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall, at its own expense (except in the case of a document or instrument that is lost by the Custodian), upon receipt thereof cause the same to be duly recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to or on behalf of the Trustee, on or before the fifth (5th) Business Day after the Closing Date, five (5) limited powers of attorney substantially in the form attached as Exhibit 4 to the Mortgage Loan Purchase Agreement in favor of the Custodian (on behalf of the Trustee) and the Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of the applicable Seller, any mortgage loan documents required to be recorded as set forth in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to or on behalf of the Trustee). The Sellers agree to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under
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authorization by any party hereto except to the extent that the absence of a document described in the second (2nd) preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred and eighty (180) days following the delivery of notice of such absence to the related Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at the related Seller’s expense, after the periods set forth above; provided, the Custodian shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office. Each of the Sellers has engaged a separate third party agent other than the Custodian or the Trustee to perform the recording obligations described in this Section 2.1(c).
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Loans or Serviced B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer, on or before the date that is forty-five (45) days following the Closing Date and shall be held by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer by the related Seller, the Servicer Mortgage File shall include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of each item set forth in the definition of “Servicer Mortgage File” in this Agreement. Notwithstanding the foregoing, no Seller shall be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of the Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if received, shall be returned and any copies thereof destroyed). Delivery of any of the foregoing documents to a sub-servicer shall be deemed delivery to the Master Servicer and satisfy the Depositor’s obligations under this Section 2.1(d). Neither the Master Servicer nor the Special Servicer shall have any liability for the absence of any of the foregoing items from the Servicer Mortgage File if such item was not delivered by the related Seller.
Schedule XVI attached hereto lists the Mortgaged Properties that, as of the Closing Date, are hospitality properties and that are subject to a franchise, management or similar agreement with a related comfort letter in favor of the respective Mortgage Loan Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trust or otherwise have a new comfort letter issued in the name of the Trust. The Mortgage Loans secured by such Mortgaged Properties are referred to herein as the “Franchise Mortgage Loans.” Each Mortgage Loan Purchase Agreement requires that the related Seller (solely in respect of the Franchise Mortgage Loans it is selling to the Depositor) or its designee shall, within thirty (30) days of the Closing Date (or any shorter period if required by the applicable comfort letter) and with a copy to the Master Servicer, notify the related franchisor in writing that such Franchise Mortgage Loan has been transferred to the Trust and request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter). The Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if
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necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).
(e) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties (and the exceptions thereto) made by the Sellers with respect to each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the BANA Loans from BANA and the UBSRES Loans from UBSRES. The Depositor shall deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of “Mortgage File”) relating to the Mortgage Loans to the Custodian (on behalf of the Trustee), endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording or filing of multiple assignment documents, BANA and UBSRES, as applicable, are required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages, and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that such Assignments of Mortgages, assignments of Assignments of Leases (to the extent separate from the Assignments of Mortgages) and assignments of UCC financing statements shall name the Trustee, on behalf of the Certificateholders, as the assignee, the parties hereto acknowledge and agree that for all purposes the BANA Loans shall be deemed to have been transferred from BANA to the Depositor and the UBSRES Loans shall be deemed to have been transferred from UBSRES to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the Certificateholders.
Section 2.2 Acceptance by Trustee. The Custodian (on behalf of the Trustee) hereby acknowledges receipt of a Trust Mortgage File for each Mortgage Loan and confirms that, with respect to each Mortgage Loan, all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession. Within ten (10) days of the Closing Date, (i) to the extent that the Custodian receives electronic copies thereof, the Custodian, upon written request therefor, shall provide an electronic copy of all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” to the Master Servicer and (ii) to the extent the Custodian is not provided with electronic copies thereof, the Custodian shall make copies of the documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” available for viewing by the Master Servicer. The Custodian will hold (i) the documents constituting a part of the Mortgage Files delivered to it or the Custodian on its behalf, (ii) the REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in each case on behalf of the Trustee in trust for the use and benefit of all present and future Certificateholders. To the extent that the contents of the Mortgage File for any A Note relate to a corresponding Serviced B Note, the Custodian (on the Trustee’s behalf), will also hold such Mortgage File in trust for the benefit of the holder of each related Serviced B Note; provided, that if a Serviced B Note remains outstanding following payment in full of the amounts
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due under the related A Notes, the Mortgage Loan documents relating to such A/B Whole Loan (exclusive of any such documents related solely to the A Notes) shall be assigned to the holder of the Serviced B Note or its designee at the expense of the holder of the Serviced B Note and delivered to such Serviced B Note holder. To the extent that the contents of the Mortgage File for any Serviced Pari Passu Mortgage Loan relate to the corresponding Serviced Companion Loan, the Trustee, or the Custodian, on the Trustee’s behalf, will also hold such Mortgage File in trust for the benefit of the holder of the related Serviced Companion Loan and any Serviced B Note.
On the Closing Date in respect of the Initial Certification, and within seventy-five (75) days after the Closing Date in respect of the Final Certification, the Custodian (on the Trustee’s behalf) shall examine the Mortgage Files in its possession, and shall deliver to the Depositor, the Sellers, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative and, upon request, the holder of any Serviced Companion Loan a certification (the “Initial Certification” and the “Final Certification”, respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which (together with any related exceptions) shall be in electronic format (including Excel compatible format) (i) in the case of the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions attached thereto, to the effect that: (A) all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of the definition of “Mortgage File”, and (ii) in the case of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions attached thereto, to the effect that: (A) all documents listed in clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” required to be included in the Mortgage File (to the extent required to be delivered pursuant to this Agreement), and with respect to all documents specified in the other clauses of the definition of “Mortgage File” to the extent known by a Responsible Officer of the Custodian (on the Trustee’s behalf) to be required pursuant to this Agreement, are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (C) based on its examination and only as to the Mortgage Note and Mortgage, the street address (excluding zip code) of the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File, and (D) each Mortgage Note has been endorsed. Notwithstanding the foregoing, the delivery of a commitment to issue a Title Insurance Policy in lieu of the delivery of the actual Title Insurance Policy shall not be considered a Material Document Defect with respect to any Mortgage File if such actual Title Insurance Policy is delivered to the Custodian (on the Trustee’s behalf) not later than the 180th day following the Closing Date.
Within 360 days after the Cut-off Date, the Custodian (on the Trustee’s behalf) shall provide a confirmation of receipt of recorded assignments of Mortgage (as set forth in the definition of “Mortgage File,” with evidence of recording thereon) or otherwise provide evidence of such recordation to the Trustee, the Master Servicer, the Special Servicer, the Certificate
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Administrator, the 17g-5 Information Provider (who shall promptly post such confirmation to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative and each Seller. The Custodian (on behalf of the Trustee) shall use reasonable efforts to submit for recording any unrecorded assignments of Mortgage that have been delivered to it (including effecting such recordation process through or cooperating with the applicable Seller), such recordation to be at the expense of the applicable Seller; provided, that the Custodian (on the Trustee’s behalf) shall not submit for recording any such assignments if the applicable Seller produces evidence that it has sent any such assignment for recording and is awaiting its return from the applicable recording office. In giving the certifications required above, neither the Trustee nor the Custodian (on the Trustee’s behalf) shall be under any obligation or duty to inspect, review or examine any such documents, instruments, securities or other papers to determine whether they or the signatures thereon are valid, legal, genuine, enforceable, in recordable form or appropriate for their represented purposes, or that they are other than what they purport to be on their face, or to determine whether any Mortgage File should include any assumption agreement, modification agreement, consolidation agreement, extension agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty, written assurance, substitution agreement, lock box agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to the Final Certification, including exceptions resulting from the fact that the recordation and/or filing has not been completed (based solely on the absence of receipt by the Custodian (on the Trustee’s behalf) of the particular documents showing evidence of the recordation and/or filing), then the Custodian (on the Trustee’s behalf) shall continuously update such schedule of exceptions to reflect receipt of any corrected documents, additional documents or instruments or evidences of recordation and/or filing, as to each Mortgage Loan, until the earliest of the following dates: (i) the date on which all such exceptions are eliminated (any such elimination resulting from the fact that recordation and/or filing has been completed shall be based solely on receipt by the Custodian (on the Trustee’s behalf) of the particular documents showing evidence of the recordation and/or filing), (ii) the date on which all the affected Mortgage Loans are removed from the Trust and (iii) the second (2nd) anniversary of the Closing Date, and shall provide such updated schedule of exceptions (which shall be in electronic format, including Excel-compatible format) to each of the Trustee, the Depositor, each Seller (as to its respective Mortgage Loans only), the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the 17g-5 Information Provider (who shall post such updated schedule of exceptions on the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative and the holders of any Serviced Companion Loan or Serviced B Note on or about the date that is one hundred and eighty (180) days after the Closing Date and then again every ninety (90) days thereafter (until the earliest date specified above). Upon request, the Master Servicer shall provide to the Trustee and to the Custodian the names and addresses of each holder of a Serviced Companion Loan or Serviced B Note of which the Master Servicer has received notice in accordance with this Agreement and/or the related Intercreditor Agreement.
The Custodian or its authorized agents shall retain possession and custody of each Trust Mortgage File in accordance with and subject to the terms and conditions set forth herein.
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The Custodian shall hold that portion of the Trust Fund delivered to the Custodian consisting of “instruments” (as such term is defined in Section 9-102 of the Uniform Commercial Code as in effect in Minnesota on the date hereof) in Minnesota and, except as otherwise specifically provided in this Agreement, shall not remove such instruments from Minnesota unless it receives an Opinion of Counsel (obtained and delivered at the expense of the Person requesting the removal of such instruments from Minnesota) that if the transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after such removal, the Trustee will possess a first priority perfected security interest in such instruments.
The Custodian shall not be an agent of the Trustee, and the Trustee shall have no liability for any action or omission of the Custodian hereunder.
Section 2.3 Sellers’ Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document or documents constituting a part of a Mortgage File has not been delivered as and when required, has not been properly executed, or is defective on its face or discovers or receives notice of a breach of any of the representations and warranties relating to the Mortgage Loans required to be made by a Seller regarding the characteristics of the Mortgage Loans and/or the related Mortgaged Properties as set forth in Exhibit 2 of the related Mortgage Loan Purchase Agreements, and either (i) the defect or breach, as the case may be, materially and adversely affects the interests of the holders of the Certificates in the related Mortgage Loan, (ii) both (A) the defect or breach materially and adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan or (iii) causes the related Mortgage Loan to fail to be a “qualified mortgage” as defined in Section 860G(a)(3) of the Code (any such defect described in the preceding clause (i), (ii) or (iii), a “Material Document Defect”, and such a breach described in the preceding clause (i), (ii) or (iii), a “Material Breach”), then the party determining that such Material Document Defect or Material Breach exists shall give prompt written notice to the Depositor, the other parties hereto, the related Seller and the 17g-5 Information Provider subject to the terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any event within three (3) Business Days) upon determining (or becoming aware of another party’s determination) that any such Material Document Defect or Material Breach exists (which determination shall, absent evidence to the contrary, be presumed to be no earlier than three (3) Business Days prior to the delivery of the notice referred to below), the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to any Specially Serviced Mortgage Loan), as applicable, shall (and the Special Servicer (with respect to any Mortgage Loan) may) request that the related Seller, not later than ninety (90) days from such Seller’s receipt of the notice of such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or cured in all material respects within such ninety (90)-day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but the related Seller is diligently attempting to effect such correction or cure, as certified by such Seller in an Officer’s Certificate delivered to the Trustee and the Custodian, then the cure period will be extended for an additional ninety (90) days unless, solely in the case of a Material Document
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Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as set forth in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” and (y) the Material Document Defect was identified in a certification delivered to the Seller by the Custodian (on behalf of the Trustee) pursuant to Section 2.2 not less than ninety (90) days prior to the receipt by the applicable Seller of the notice of such Material Document Defect. The parties acknowledge that neither delivery of a certification or schedule of exceptions to a Seller pursuant to Section 2.2 or otherwise nor possession of such certification or schedule by the Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by the Seller or any party hereto of any Material Document Defect listed therein.
If any Material Document Defect or Material Breach that exists cannot be corrected or cured in all material respects within the above cure periods, the related Seller is obligated under the related Mortgage Loan Purchase Agreement, not later than the last day of such permitted cure period, subject to Section 5.12 of each Mortgage Loan Purchase Agreement, to (i) repurchase the affected Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) or REO Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) from the Trust at the applicable Purchase Price in accordance with the related Mortgage Loan Purchase Agreement, or (ii) if within the three-month period commencing on the Closing Date (or prior to the second anniversary of the Closing Date if the affected Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), at the related Seller’s option, without recourse (other than the representations and warranties made with respect thereto), replace such Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) or any successor REO Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) to which such defect or breach relates with a Qualifying Substitute Mortgage Loan and pay a substitution shortfall amount equal to the excess, if any, of the applicable Purchase Price for the Mortgage Loan or REO Mortgage Loan to be replaced, over the Stated Principal Balance of the Qualifying Substitute Mortgage Loan. If such Material Document Defect or Material Breach would cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code), then notwithstanding the previous sentence or the previous paragraph, the cure, repurchase or substitution must occur within eighty-five (85) days from the date the related Seller was notified of the defect or breach; provided, that in any event any such cure, repurchase or substitution must occur no later than eighty-five (85) days from the date of determination of the existence of a Material Document Defect or Material Breach as determined in this Section 2.3(a).
As to any Qualifying Substitute Mortgage Loan or Loans, the Master Servicer shall not execute any instrument effecting the substitution unless the related Seller has delivered to the Custodian (on the Trustee’s behalf) for such Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment of Mortgage, and such other
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documents and agreements as are required by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1, and the Master Servicer shall be entitled to rely on statements and certifications from the Custodian for this purpose. No substitution may be made in any calendar month after the Determination Date for such month. Monthly payments due with respect to Qualifying Substitute Mortgage Loans in the month of substitution shall not be part of the Trust and will be retained by Master Servicer and remitted by the Master Servicer to the related Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on the related Deleted Mortgage Loan for such month and thereafter the related Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such amendment the Master Servicer shall deliver or cause to be delivered such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Certificate Administrator and the Special Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects. Upon receipt of the Trust Mortgage File pertaining to any Qualifying Substitute Mortgage Loans, the Custodian shall release the Trust Mortgage File relating to such Deleted Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if necessary) shall execute and deliver such instruments of transfer or assignment in the form presented to it, in each case without recourse, representation or warranty, as shall be necessary to vest title (to the extent that such title was transferred to the Trustee or the Depositor) in the related Seller or its designee to any Deleted Mortgage Loan (including any property acquired in respect thereof or any insurance policy proceeds relating thereto) substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated above (a “Defective Mortgage Loan”), (y) such Defective Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (such Defective Mortgage Loan and such other Mortgage Loans, collectively, “Crossed Mortgage Loans”) and (z) the applicable document defect or breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to such other Crossed Mortgage Loans (without regard to this paragraph), then the applicable document defect or breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach (as the case may be) as to each such other Crossed Mortgage Loan for purposes of the above provisions, and the related Seller shall be obligated to repurchase or replace each such other Crossed Mortgage Loan in accordance with the provisions above unless, in the case of such breach or document defect, (A) the Seller provides a Nondisqualification Opinion to the Trustee at the expense of the Seller and (B) both of the following conditions would be satisfied if the related Seller were to repurchase or replace only those Mortgage Loans as to which a Material Breach or Material Document Defect had occurred without regard to this paragraph (the “Affected Loan(s)”): (i) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) for the four (4) calendar quarters immediately preceding the repurchase or replacement is not less than the lesser of (A) 0.10x below the debt service coverage ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement and (B) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or
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replacement, and (ii) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater of (A) the loan-to-value ratio, expressed as a whole number (taken to one decimal place), for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement plus 10% and (B) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)), at the time of repurchase or replacement. The determination of the Master Servicer as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error. The Master Servicer will be entitled to cause to be delivered, or direct the related Seller to (in which case the related Seller shall be required under the related Mortgage Loan Purchase Agreement to) cause to be delivered to the Master Servicer, an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (ii) above has been satisfied, in each case at the expense of the related Seller if the scope and cost of the Appraisal is approved by the related Seller (such approval not to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the applicable Seller is required to repurchase or substitute for such Defective Mortgage Loan (each, a “Repurchased Loan”) in the manner prescribed above while the Custodian (on the Trustee’s behalf) continues to hold any Crossed Mortgage Loan, the applicable Seller and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to forbear from enforcing any remedies against the other’s Primary Collateral but each is permitted to exercise remedies against the Primary Collateral securing its respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing Mortgage Loans still held by the Trustee or the Custodian, so long as such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such party, then both parties have agreed to forbear from exercising such remedies until the loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the applicable Mortgage Loan Purchase Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Mortgage Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding principal balances. All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof. The Mortgagors set forth on Schedule IV hereto are intended third-party beneficiaries of the provisions set forth in this paragraph and the preceding paragraph. The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.
Any of the following document defects shall be conclusively presumed materially and adversely to affect the interests of Certificateholders in a Mortgage Loan and be a Material Document Defect: (A) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity that appears to be regular on its face (if such absence results from the related Seller’s failure to deliver such item); (B) the absence from the Mortgage File of the original signed Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof) that appears to be regular on its face, unless there is included in the Mortgage File a certified copy of the Mortgage by the local authority
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with which the Mortgage was recorded (if such absence results from the related Seller’s failure to deliver such item); (C) the absence from the Mortgage File of the item called for by paragraph (viii) of the definition of “Mortgage File” (or with respect to any Non-Serviced Mortgage Loan, a copy thereof) (if such absence results from the related Seller’s failure to deliver such item); (D) the absence from the Mortgage File of the original or a copy of any letter of credit in effect as of the Closing Date (if such absence results from the related Seller’s failure to deliver such item); or (E) the absence from the Mortgage File of a copy of the item specified in paragraph (x) of the definition of “Mortgage File” (if such absence results from the related Seller’s failure to deliver such item) if the related Mortgage Loan is secured only by the related ground lease, Space Lease or air rights lease. If any party hereto notifies the Trustee of the occurrence of any of the foregoing Material Document Defects, the Trustee shall notify the Master Servicer and the Special Servicer, and the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall take the steps described elsewhere in this Section 2.3(a), including the giving of notices to the related Seller, the Rating Agencies (subject to Section 5.7), the parties hereto and, to the extent any Material Document Defect relates to a Serviced Pari Passu Mortgage Loan, the holder of the related Serviced Companion Loan, and the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall make demand upon the related Seller for the cure of the document defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or cure of such Material Document Defect or Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to replace an affected Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance with the related Mortgage Loan Purchase Agreement, then provided that (x) the period of time provided for the related Seller to correct, repurchase or cure has expired and (y) the Mortgage Loan is then in default (or default is reasonably foreseeable) and is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to the Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate (or permit the liquidation of) the Mortgage Loan or any REO Property, as applicable, pursuant to Section 9.5, Section 9.12, Section 9.13, Section 9.15, Section 9.16, Section 9.17 and Section 10.3 and the terms and conditions of any related Intercreditor Agreement, as applicable, while pursuing the repurchase claim. The related Seller has acknowledged and agreed under the related Mortgage Loan Purchase Agreement that any modification of the Mortgage Loan pursuant to a workout shall not constitute a defense to any repurchase claim nor shall such modification and workout change the Purchase Price due from the related Seller for any repurchase claim. In the event of any such modification and workout, the related Seller has agreed under the related Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and that the Purchase Price shall include any Workout Fee paid to the Special Servicer up to the date of repurchase plus the present value (calculated at the applicable Calculation Rate) of the Workout Fee that would have been payable to the Special Servicer in respect of such Mortgage Loan if it performed in accordance with its terms to its Maturity Date, provided that no amount shall be paid by the related Seller in respect of any Workout Fee if a Liquidation Fee already comprises (or will comprise) a portion of the Purchase Price or if the related Mortgagor has already paid such fee. The related Seller shall be notified promptly and in writing by the Special Servicer of any offer that it receives to purchase the applicable Mortgage Loan or any REO Property, as
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applicable, each in connection with such liquidation. Any sale of the related Mortgage Loan, or foreclosure thereupon and sale of the related REO Property, to a Person other than the related Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against the related Seller and (ii) representation or warranty of any kind (either expressed or implied) by the related Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not discovered until after the completion of foreclosure (but in all instances prior to the sale of the related REO Property) shall not prejudice any claim against the Seller for repurchase of the REO Property (or the Trust’s interest therein). In such an event, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall notify the related Seller of the discovery of the Material Document Defect or Material Breach and the related Seller shall have ninety (90) days to correct or cure such Material Document Defect or Material Breach or purchase the REO Property (or the Trust’s interest therein) at the Purchase Price. If the related Seller fails to correct or cure the Material Document Defect or Material Breach or purchase the REO Property, then the provisions above regarding notice of offers related to such REO Property shall apply. After a final liquidation of the Mortgage Loan or REO Property, if a court of competent jurisdiction issues a final order after the expiration of any applicable appeal period that the related Seller is or was obligated to repurchase the related Mortgage Loan or REO Property (a “Final Judicial Determination”) or the related Seller otherwise accepts liability, then, but in no event later than the termination of the Trust pursuant to Section 11.1, the related Seller will be obligated to pay to the Trust the difference between any Liquidation Proceeds received upon such liquidation (including those arising from any sale to the related Seller) and the Purchase Price.
In any month in which the related Seller substitutes one or more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate Stated Principal Balance of all such Qualifying Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (in each case after application of scheduled principal portion of the monthly payments received in the month of substitution). The Depositor shall cause the related Seller to deposit the amount of such shortage into the Collection Account in the month of substitution, without any reimbursement thereof. In addition, the Depositor shall cause the related Seller to deposit into the Collection Account, together with such shortage, if any, an amount equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due Date as to which interest was last paid up to the Due Date next succeeding such substitution together with the amount of unreimbursed Servicing Advances, amounts required to be paid to the Special Servicer but remaining unpaid or unreimbursed, and interest on unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance Rate. The Depositor shall cause the related Seller, in the case of the Mortgage Loans, to give notice in writing (accompanied by an Officer’s Certificate as to the calculation of such shortage) to the Trustee, the Custodian, the Certificate Administrator, the Master Servicer and the Special Servicer of such event which notice shall be accompanied by an Officer’s Certificate as to the calculation of such shortfall.
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If the affected Mortgage Loan is to be repurchased, the Master Servicer shall designate the Collection Account as the account to which funds in the amount of the Purchase Price are to be wired. Any such purchase of a Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, if there is a breach of the representations and warranties set forth in paragraph 30 or paragraph 32 in Exhibit 2 to any Mortgage Loan Purchase Agreement, and as a result the payments by a Mortgagor of reasonable costs and expenses associated with securing the consent or approval of the holder of the Mortgage for a waiver of a “due-on-sale” or “due-on-encumbrance” clause or the defeasance of a Mortgage Loan are insufficient such that the Trust incurs an Additional Trust Expense in an amount equal to such reasonable costs and expenses not paid by such Mortgagor, the related Seller has agreed to reimburse the Trust within ninety (90) days of the receipt of notice of such breach in an amount sufficient to avoid such Additional Trust Expense. With respect to any Joint Mortgage Loan, the applicable Seller’s obligation shall be such Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan. The parties hereto acknowledge that such reimbursement shall be the only obligation of the related Seller with respect to the breach discussed in the second preceding sentence.
If a Mortgage Loan or an REO Property is repurchased or replaced by a Seller as contemplated by this Section 2.3, the Master Servicer shall provide prompt electronic notice to the Special Servicer, the Certificate Administrator (who shall promptly post such notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7).
With respect to any Joint Mortgage Loan, the obligations of each of the applicable Sellers to repurchase or substitute with respect to a Material Document Defect or Material Breach with respect to the related Mortgage Loan shall be limited to a repurchase or substitution with respect to the Mortgage Note it sold to the Depositor in accordance with the related Mortgage Loan Purchase Agreement. With respect to any Joint Mortgage Loan, any cure by either of the applicable Sellers with respect to the Mortgage Note sold by it to the Depositor in accordance with the related Mortgage Loan Purchase Agreement that also cures the Material Document Defect or Material Breach with respect to the entire related Joint Mortgage Loan shall satisfy the cure obligations of both Sellers with respect to such Joint Mortgage Loan.
(b) In connection with any repurchase of or substitution for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the related Seller, after delivery to each of them of a receipt executed by such Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the related Seller or its designee in the same manner, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which documents were previously assigned to the Trustee, but in any event, without recourse, representation or warranty; provided that such tender by the Trustee and the Custodian shall be conditioned upon its receipt from the Master Servicer
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of a Request for Release. The Master Servicer shall, and is hereby authorized and empowered by the Trustee to, prepare, execute and deliver in its own name, on behalf of the Certificateholders and the Trustee or any of them, the endorsements and assignments contemplated by this Section 2.3, and the Trustee shall execute and deliver any powers of attorney substantially in the form of Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer) necessary to permit the Master Servicer to do so. The Master Servicer shall, and is also hereby authorized and empowered by the Trustee to, reconvey to the related Seller any deposits then held in an Escrow Account relating to the Mortgage Loan being repurchased or substituted for. The Master Servicer shall indemnify the Trustee for all costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee, in connection with any negligent or intentional misuse of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies available to the Certificateholders, or the Trust, respecting any Material Document Defect or Material Breach. The parties hereunder understand that (i) UBSRES, as Seller under Mortgage Loan Purchase Agreement II, will be providing the remedies with respect to the UBSRES Loans, and (ii) BANA, as Seller under Mortgage Loan Purchase Agreement I, will be providing the remedies with respect to the BANA Loans.
(d) The Master Servicer or the Special Servicer may enforce the provisions of this Section 2.3.
(e) If the Depositor, the Master Servicer or the Special Servicer (each a “Repurchase Request Recipient”): (1) receives notice of a Demand; or (2) receives notice of a withdrawal of a Demand by the Person making such Demand, then such party shall give written notice thereof to the applicable Seller and the other parties hereto within ten (10) Business Days from the date of receipt of such notice. Each notice required by this Section 2.3(e) (a “Rule 15Ga-1 Notice”) shall include: (i) the date the Demand was delivered to the Repurchase Request Recipient or was withdrawn by the Person making such Demand, as the case may be; (ii) the identity of the related Mortgage Loan and the identity of the Person making such Demand; (iii) the breach of representation or warranty or document deficiency asserted by the Person making the Demand, to the extent known to the Repurchase Request Recipient; and (iv) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Demand. Each Rule 15Ga-1 Notice may be delivered by electronic means. A Repurchase Request Recipient shall not be required to provide any information under this Section 2.3(e) if and to the extent that such information is protected by either the attorney-client privilege or the attorney work product doctrines. Each Mortgage Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice is provided only to assist the Depositor, the related Seller and their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, and (ii)(A) no action taken by, or inaction of, a Repurchase Request Recipient, and (B) no information provided pursuant to this Section 2.3(e) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice
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If the Trustee, Custodian or the Certificate Administrator receives a Demand, then such party shall promptly (but in no event later than ten (10) calendar days following receipt by the Certificate Administrator, Custodian or the Trustee, as the case may be) forward such Demand to the Master Servicer (with a copy to the Special Servicer), if relating to a Non-Specially Serviced Mortgage Loan, or to the Special Servicer (with a copy to the Master Servicer), if relating to a Specially Serviced Mortgage Loan (or any successor REO Mortgage Loan), and shall include the following statement in the related correspondence: “This is a “Demand” under Section 2.3 of the Pooling and Servicing Agreement relating to the BACM 2015-UBS7 Commercial Mortgage Pass-Through Certificates requiring action by you as the “Repurchase Request Recipient” thereunder”. Upon receipt of a Demand by the Master Servicer or Special Servicer, as applicable, pursuant to the prior sentence, such party shall be deemed a Repurchase Request Recipient in respect of such Demand, and such party shall comply with the procedures set forth in the prior paragraph of this Section 2.3(e) with respect to such Demand. None of the Trustee, the Custodian or the Certificate Administrator shall accept any oral Demands, and each of the Trustee, the Custodian and the Certificate Administrator shall direct any Person making a Demand to submit it in writing to the Certificate Administrator (who will then act in accordance with the first sentence of this paragraph). Any Demand to the Certificate Administrator must be submitted in writing or by email to cmbs.transactions@usbank.com (or such other email address as the Certificate Administrator shall designate from time to time) with a subject line of “Repurchase Request - BACM 2015-UBS7”.
Section 2.4 Representations and Warranties. The Depositor hereby represents and warrants to the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee (in its capacity as Trustee of the Trust), Custodian and the Certificate Administrator, and for the benefit of the Certificateholders, as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties; (ii) the certificate of incorporation or bylaws of the Depositor; or (iii) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound; neither the Depositor nor any of its Affiliates is a party to, bound by, or in breach of or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or to the best knowledge of the Depositor may in the future materially and adversely affect (i) the ability of the Depositor to perform its obligations under this Agreement or (ii) the business, operations, financial condition, properties or assets of the Depositor;
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(c) The execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership, liquidation and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(e) There are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement; and
(f) Immediately prior to the consummation of the transactions contemplated in this Agreement, the Depositor had good title to and was the sole owner of each Mortgage Loan free and clear of any and all adverse claims, charges or security interests (including liens arising under the federal tax laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests. Effective as of the Closing Date, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Trustee, without recourse, in trust, all the right, title and interest of the Depositor in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii) the REMIC I Regular Interests in exchange for the REMIC II Interests, (iii) the REMIC II Regular Interests in exchange for the REMIC III Interests and (iv) the right to receive Excess Interest in exchange for the Class V Certificates. The Trustee acknowledges such assignment and on the Closing Date, and in exchange therefor, the Certificate Registrar, on behalf of the Trustee, has executed and the Authenticating Agent, on behalf of the Trustee, has authenticated and delivered to or upon the order of the Depositor the REMIC III Regular Certificates, Class V Certificates and Class R Certificates in authorized denominations, in each case registered in the name set forth in such order or as so directed in this Agreement.
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, with respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the document delivery requirements set forth herein will be satisfied by the delivery by the applicable Seller of copies of each such document
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specified herein (other than the Mortgage Note (and all intervening endorsements) evidencing the Mortgage Loan, with respect to which the originals shall be required); provided, the document delivery requirements for the Assignment of Mortgage, any assignment of Assignment of Leases and any UCC-3 financing statement set forth herein will be satisfied by the delivery by the applicable Seller of copies of such documents made in favor of the trustee of the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
ARTICLE
III
THE CERTIFICATES
Section 3.1 The Certificates.
(a) The Certificates shall be in substantially the forms set forth in the Exhibits attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may in the reasonable judgment of the Trustee or the Depositor be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange on which any of the Certificates may be listed, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof.
The Definitive Certificates shall be printed, typewritten, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which any of the Certificates may be listed, all as determined by the officers executing such Certificates, as evidenced by their execution thereof.
(b) The Class X Certificates will be issuable in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof. The Registered Certificates (other than the Class X-A Certificates) will be issuable in denominations of $10,000 initial Certificate Balance and in any whole dollar denomination in excess thereof. The Non-Registered Certificates that are Principal Balance Certificates will be issuable in denominations of $100,000 initial Certificate Balance and in any whole dollar denomination in excess thereof. The Class V Certificates will be issued in minimum Percentage Interests of 5%. The Class R Certificates will be issued in minimum Percentage Interests of 10%.
(c) Each Certificate shall, on original issue, be executed by the Certificate Registrar and authenticated by the Authenticating Agent upon the order of the Depositor. No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein, executed by an authorized officer of the Authenticating Agent by manual signature, and such certification upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. At any time and from time to time after the execution and delivery of this Agreement, the Depositor may deliver Certificates to the
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Authenticating Agent for authentication and the Authenticating Agent shall authenticate and deliver such Certificates only as provided for in this Agreement. If additional Certificates need to be prepared at any time subsequent to the Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or cause to be delivered, at the Depositor’s expense, any such additional Certificates. With respect to the REMIC III Regular Certificates that are issued in book-entry form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Book-Entry Certificates that are issued to a Clearing Agency or its nominee as provided in Section 3.7 against payment of the purchase price thereof. With respect to the Non-Registered Certificates that are issued in definitive form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Definitive Certificates that are issued to the registered holder thereof against payment of the purchase price thereof.
Section 3.2 Registration. The Certificate Administrator shall be the initial Certificate Registrar in respect of the Certificates and the Certificate Registrar shall maintain books for the registration and for the transfer of Certificates (the “Certificate Register”). The Certificate Registrar may resign or be discharged or removed by the Certificate Administrator or the Certificateholders, and a new successor may be appointed, in accordance with the procedures and requirements set forth in Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or removal of the Certificate Administrator and the appointment of a successor Certificate Administrator. The Certificate Registrar may appoint, by a written instrument delivered to the Holders and the Trustee, any trust company to act as co-registrar under such conditions as the Certificate Registrar may prescribe; provided that the Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof only upon presentation and surrender of such Certificate at the Corporate Trust Office of the Certificate Administrator, duly endorsed or accompanied by a written instrument of transfer duly executed by such Holder or such Holder’s duly authorized attorney in such form as shall be satisfactory to the Certificate Registrar. Upon the transfer of any Certificate in accordance with the preceding sentence, and subject to the restrictions set forth in the other subsections of this Section 3.3, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as the Certificate being transferred. No service charge shall be made to a Certificateholder for any registration of transfer of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration or transfer of Certificates. The Certificate Registrar may decline to accept any request for a registration of transfer of any Certificate during the period beginning five (5) calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as the Certificate surrendered, upon surrender of the Certificate to be exchanged at the offices of the Certificate Registrar duly endorsed or accompanied by a written instrument of
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exchange duly executed by such Holder or such Holder’s duly authorized attorney in such form as is satisfactory to the Certificate Registrar. Certificates delivered upon any such exchange will evidence the same obligations, and will be entitled to the same rights and privileges, as the Certificates surrendered. No service charge shall be made to a Certificateholder for any exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any exchange of Certificates. Whenever any Certificates are so surrendered for exchange, the Certificate Registrar shall execute and the Authenticating Agent shall authenticate, date and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any Non-Registered Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Non-Registered Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 hereto and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No transfer of a Class R Certificate may be made to a Person that is not a Qualified Institutional Buyer, and any certificate and/or opinion of counsel delivered pursuant to the preceding sentence must reflect that the Transferee of a Class R Certificate is a Qualified Institutional Buyer. No transfer of a Class V Certificate may be made to a Person that is not a Qualified Institutional Buyer or an Institutional Accredited Investor. No transfer of a Class V or Class R Certificate may be made in book-entry form. No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to this Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of Non-Registered Certificates or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to this Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
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(d) No transfer of a Class V or Class R Certificate or other Non-Investment Grade Certificate or any interest therein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) except in the case of a Class V or Class R Certificate, the purchase and holding of such Certificate or interest therein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate (other than a Class V or Class R Certificate) held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to this Agreement to any obligation in addition to those undertaken in this Agreement. Each Person who acquires any Class V or Class R Certificate or other Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless, in the case of a Non-Investment Grade Certificate (other than a Class V or Class R Certificate), it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B hereto that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) that, except in the case of a Class V or Class R Certificate, the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Administrator under clause (F) below to deliver payments to a Person other than such Person and to have irrevocably authorized the Certificate Registrar under clause (G) below to negotiate the terms of any mandatory sale and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of such person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be
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owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Permitted Transferee and (2) each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Qualified Institutional Buyer and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Class R Certificate shall be registered until the Certificate Registrar receives, an affidavit and agreement substantially in the form attached hereto as Exhibit E-1 (a “Transferee Affidavit and Agreement”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is a Qualified Institutional Buyer, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, that it is a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, that if such Transferee is a partnership, trust or disregarded entity for U.S. federal income tax purposes, then each Person that may be allocated income from a Class R Certificate is a United States Tax Person, that it is not a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person, that it has historically paid its debts as they have come due and will continue to do so in the future, that it understands that its tax liability with respect to the Class R Certificates may exceed cash flows thereon and it intends to pay such taxes as they come due, that it will not cause income with respect to the Class R Certificates to be attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of such proposed Transferee or any other United States Tax Person, that it will provide the Certificate Registrar with all information necessary to determine that the applicable paragraphs of Section 13 of such Transferee Affidavit and Agreement are true or that Section 13 is not applicable, and that it has reviewed the provisions of this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transferee Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee or is not a United States Tax Person, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
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(D) Each Person holding or acquiring an Ownership Interest in a Class R Certificate shall agree (1) to require a Transferee Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Class R Certificate and (2) not to transfer its Ownership Interest in such Class R Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached hereto as Exhibit E-2 stating, among other things that (x) it has conducted a reasonable investigation of the financial condition of the proposed Transferee and, as a result of the investigation, the Transferor determines that the proposed Transferee had historically paid its debts as they came due and found no significant evidence that the proposed Transferee will not continue to pay its debts as they come due in the future and, (y) it has no actual knowledge that such prospective Transferee is not a Permitted Transferee, is not a United States Tax Person or a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, is a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person or is a Person with respect to which income on the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate that is a “pass-through interest holder” within the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Class R Certificate on behalf of a “pass-through interest holder”, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice of its status as such immediately upon holding or acquiring such Ownership Interest in a Class R Certificate.
(F) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the provisions of this Section 3.3(e) or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, then the last preceding Holder of such Class R Certificate that was in compliance with the provisions of this Section 3.3(e) shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. None of the Trustee, the Custodian, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar or the Certificate Administrator shall be under any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 3.3(e) or for making any payments due on such Certificate to the Holder thereof or for taking any other action with respect to such Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 3.3(e), or if any Holder of
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a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, and to the extent that the retroactive restoration of the rights and obligations of the prior Holder of such Class R Certificate as set forth in clause (F) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Class R Certificate, but not the obligation, to sell or cause to be sold such Class R Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such noncomplying Holder shall promptly endorse and deliver such Class R Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by the Certificate Registrar to such noncomplying Holder. The terms and conditions of any sale under this clause (G) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
The Certificate Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information in its possession necessary to compute any tax imposed (i) as a result of the Transfer of an Ownership Interest in a Class R Certificate to any Person who is not a Permitted Transferee, including the information described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Class R Certificate and (ii) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person which is not a Permitted Transferee. The Person holding such Ownership Interest shall be responsible for the reasonable compensation of the Master Servicer and the Certificate Administrator for providing such information.
The provisions of this Section 3.3(e) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Master Servicer and the Depositor, an Opinion of Counsel (subject to Section 5.7, a copy of which shall be provided to each Rating Agency), in form and substance satisfactory to the Trustee, the Certificate Registrar and the Depositor, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC Pool to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused by the Transfer of any Class R Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the prospective Transferee to be subject to a tax caused by the Transfer of a Class R Certificate to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Certificate Administrator, the Custodian or the Certificate Registrar shall have any liability to the Trust arising from a transfer of any Certificate in reliance upon a certification, ruling or opinion of counsel described in this Section 3.3; provided, that the Certificate Registrar
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shall not register the transfer of a Class R Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Class R Certificate as set forth in Section 3.3(e); provided, further, that the Certificate Registrar shall not register the transfer of a Class R Certificate if it shall have received notice that the Transferor has determined, as a result of the investigation under Section 3.3(e)(D), that the proposed Transferee has not paid its debts as they came due or that it will not pay its debts as they come due in the future. The Certificate Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer or exchange of Certificates or any interest therein imposed under this Article III or under applicable law other than to require delivery of the certifications and/or opinions described in this Article III; provided, that the Certificate Registrar shall not register the transfer of a Class R Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Class R Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have no liability for transfers (including without limitation transfers made through the book-entry facilities of the Depository or between or among Participants or Certificate Owners) made in violation of applicable restrictions, provided that the Certificate Registrar has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be physically cancelled by the Certificate Registrar, and the Certificate Registrar shall hold such cancelled Certificates in accordance with its standard procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the Special Servicer and the Depositor, upon written request, with an updated copy of the Certificate Register within a reasonable period of time following receipt of such request.
(i) Unless and until it is exchanged in whole for the individual Certificates represented thereby, a Global Certificate representing all of the Certificates of a Class may not be transferred, except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency, and no such transfer to any such other Person may be registered; provided that this subsection (i) shall not prohibit any transfer of a Certificate of a Class that is issued in exchange for a Global Certificate of the same Class pursuant to Section 3.9 below. Nothing in this subsection (i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Certificate effected in accordance with the other provisions of this Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (A) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (B) except in the case of a mutilated Certificate so surrendered, there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust. In connection with the issuance of any new Certificate under this Section 3.4, the Certificate Registrar may require the
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payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 3.4 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners. Prior to presentation of a Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Trust Advisor, the Certificate Administrator and any agent of any such party, may treat the Person in whose name any Certificate is registered as of the related Record Date as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and no such party (nor any agent thereof) shall be affected by any notice to the contrary.
Section 3.6 Access to List of Certificateholders’ Names and Addresses.
(a) If any three (3) or more Certifying Certificateholders or the Controlling Class Representative or any party to this Agreement (i) request in writing from the Certificate Registrar a list of the names and addresses of Certificateholders and (ii) in the case of a request by Certificateholders, state that such Certificateholders desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates, then the Certificate Registrar shall, within ten (10) Business Days after the receipt of such request, at no cost to such requesting party, afford such Certificateholders or applicable party to this Agreement, as applicable, access during normal business hours to a current list of the Certificateholders or, if requested, shall provide such list electronically to the applicable requesting party; provided, that the Certificate Registrar shall not be required to determine the identity of any Certificate Owner of any Book-Entry Certificate. Every Certificateholder, by receiving and holding a Certificate, agrees that none of the Certificate Registrar or any other party to this Agreement shall be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which such information was derived.
(b) Upon the written request of any Certifying Certificateholder that (i) states that such Certificateholder desires the Certificate Registrar to transmit a notice to all Certificateholders stating that such Certificateholder wishes to be contacted by other Certificateholders, setting forth the relevant contact information and briefly stating the reason for the requested contact and (ii) provides a copy of the Special Notice which such Certificateholder proposes to transmit, the Certificate Registrar shall deliver such Special Notice to the Certificate Administrator, who shall make a copy of such Special Notice available electronically on the Certificate Administrator’s Website pursuant to Section 5.4. The costs and expenses of the Certificate Registrar associated with delivering any such Special Notice shall be borne by the party or parties requesting delivery of such Special Notice. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such Special Notice to Certificateholders, regardless of the information set forth in such Special Notice.
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Section 3.7 Book-Entry Certificates.
(a) The REMIC III Regular Certificates (exclusive of any Non-Registered Certificates that are sold in the United States to Institutional Accredited Investors that are not Qualified Institutional Buyers), in the case of each Class thereof, upon original issuance, shall be issued in the form of one or more Global Certificates representing the Book-Entry Certificates of such Class, to be delivered to the Certificate Registrar, as custodian for the Depository, the initial Clearing Agency, by, or on behalf of, the Depositor, provided, that any Non-Registered Certificates sold to Institutional Accredited Investors that are not Qualified Institutional Buyers, together with the Class V and Class R Certificates, will be issued as Definitive Certificates. The Global Certificates shall initially be registered on the Certificate Register in the name of Cede & Co., the nominee of the Depository, as the initial Clearing Agency, and no Certificate Owner will receive a Definitive Certificate representing such Certificate Owner’s interest in the Global Certificates, except as provided in Section 3.9. With respect to those Classes of Certificates issued as Global Certificates, unless and until Definitive Certificates have been issued to the related Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate Administrator, the Certificate Registrar, the Custodian and the Trustee may deal with the Clearing Agency for all purposes (including the making of distributions on the Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict with any other provisions of this Agreement, the provisions of this Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be exercised only through the Clearing Agency and the applicable Participants and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Participants. Pursuant to the Depository Agreement, unless and until Certificates are issued pursuant to Section 3.9, the initial Clearing Agency will make book-entry transfers among the Participants and receive and transmit distributions of principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or permitting actions with the consent of, or at the direction of, Holders of the Certificates evidencing a specified percentage of the aggregate unpaid principal amount of Certificates, such direction or consent may be given by the Clearing Agency at the direction of Certificate Owners owning Certificates evidencing the requisite percentage of principal amount of Certificates. The Clearing Agency may take conflicting actions with respect to the Certificates to the extent that such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class of Non-Registered Certificates (other than the Class V and Class R Certificates) initially sold in reliance on Rule 144A shall be represented
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by the Rule 144A Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository. The Non-Registered Certificates initially sold to Institutional Accredited Investors that are not Qualified Institutional Buyers, together with the Class V and Class R Certificates, shall be represented by Definitive Certificates for such Class. The Non-Registered Certificates evidenced by any Rule 144A Global Certificate or Definitive Certificate shall be subject to certain restrictions on transfer as set forth in Section 3.3 hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class of Non-Registered Certificates (other than the Class V and Class R Certificates) initially sold in offshore transactions in reliance on Regulation S shall be represented by the Regulation S Temporary Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository. Not earlier than the Release Date, beneficial interests in any Regulation S Temporary Global Certificate shall be exchangeable for beneficial interests in the Regulation S Permanent Global Certificate for such Class. Beneficial interests in any Regulation S Temporary Global Certificate may be held only through Euroclear Bank or Clearstream Bank; provided, that such interests may be exchanged for interests in the Rule 144A Global Certificate for such Class in accordance with the certification requirements described in Section 3.7(f). The Regulation S Permanent Global Certificates shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution Date occurring prior to the Release Date, each Certificate Owner of a Regulation S Temporary Global Certificate that holds a beneficial interest therein on the Release Date or on any such Distribution Date, as the case may be, must deliver to Euroclear Bank or Clearstream Bank (as applicable) a Regulation S Certificate; provided, that any Certificate Owner that holds a beneficial interest in a Regulation S Temporary Global Certificate on the Release Date or on any such Distribution Date that has previously delivered a Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to its interest therein does not need to deliver any subsequent Regulation S Certificate (unless the certificate previously delivered is no longer true as of such subsequent date, and such Certificate Owner must promptly notify Euroclear Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream Bank, as applicable, shall be required to promptly deliver to the Certificate Registrar a certificate substantially in the form of Exhibit H hereto to the effect that it has received the requisite Regulation S Certificates for each such Class, and no Certificate Owner (or transferee from any such Certificate Owner) shall be entitled to receive an interest in the Regulation S Permanent Global Certificate for such Class or any payment or principal or interest with respect to its interest in such Regulation S Temporary Global Certificate prior to the Certificate Registrar receiving such certification from Euroclear Bank or Clearstream Bank with respect to the portion of the Regulation S Temporary Global Certificate owned by such Certificate Owner (and, with respect to an interest in the applicable Regulation S Permanent Global Certificate, prior to the Release Date). After the Release Date, distributions due with respect to any beneficial interest in a Regulation S Temporary Global Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the related Regulation S Permanent Global Certificate is improperly withheld or refused. No interest in a Regulation S Global Certificate may be held by or
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transferred to a U.S. Person (as defined in Regulation S) except for exchanges for a beneficial interest in the Rule 144A Global Certificate for such Class as set forth in Section 3.7(f).
(e) Except in the limited circumstances described below in Section 3.9, owners of beneficial interests in Global Certificates shall not be entitled to receive physical delivery of Definitive Certificates. The Certificates are not issuable in bearer form. Upon the issuance of each Global Certificate, the Depository or its custodian shall credit, on its internal system, the respective principal amount of the individual beneficial interests represented by such Global Certificate to the accounts of Persons who have accounts with such Depository. Such accounts initially shall be designated by or on behalf of the Underwriters and the Initial Purchasers. Ownership of beneficial interests in a Global Certificate shall be limited to Customers or Persons who hold interests directly or indirectly through Customers. Ownership of beneficial interests in the Global Certificates shall be shown on, and the transfer of that ownership shall be effected only through, records maintained by the Depository or its nominee (with respect to interests of Customers) and the records of Customers (with respect to interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of a Global Certificate, the Depository or such nominee, as the case may be, shall be considered the sole owner and holder of the Certificates represented by such Global Certificate for all purposes under this Agreement and the Certificates, including, without limitation, obtaining consents and waivers thereunder, and the Trustee, the Custodian, the Certificate Administrator and the Certificate Registrar shall not be affected by any notice to the contrary. Except under the circumstance described in Section 3.9, owners of beneficial interests in a Global Certificate will not be entitled to have any portions of such Global Certificate registered in their names, will not receive or be entitled to receive physical delivery of Definitive Certificates in certificated form and shall not be considered the owners or holders of the Global Certificate (or any Certificates represented thereby) under this Agreement or the Certificates. In addition, no Certificate Owner of an interest in a Global Certificate shall be able to transfer that interest except in accordance with the Depository’s applicable procedures (in addition to those under this Agreement and, if applicable, those of Euroclear Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the form of an Exchange Certification (substantially in the form of Exhibit G attached hereto), to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Rule 144A Global Certificate as set forth herein; provided that no Exchange Certification shall be required if any such exchange occurs after the Release Date. Any holder of an interest in the Rule 144A Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable, in the form of an Exchange Certification (substantially in the form of Exhibit G attached hereto), to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Regulation S Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Regulation S Global Certificate as set
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forth herein; provided, that if such exchange occurs prior to the Release Date, the transferee shall acquire an interest in a Regulation S Temporary Global Certificate only and shall be subject to all of the restrictions associated therewith described in Section 3.7(d). Following receipt of any Exchange Certification or request for transfer, as applicable, by the Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates being exchanged to reduce the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates for which such exchange is to be made, and (ii) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates for which such exchange is to be made to increase the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates being exchanged therefor. The form of the Exchange Certification shall be available from the Certificate Registrar.
(g) If a Holder of a Definitive Certificate wishes at any time to exchange such Definitive Certificate for an interest in the Rule 144A Global Certificate of the same Class, or to transfer such Definitive Certificate to a Person who is entitled to take delivery thereof in the form of an interest in the Rule 144A Global Certificate of the same Class, such Holder may, subject to the rules and procedures of the Depository, cause the exchange of such Definitive Certificate for an equivalent beneficial interest in the Rule 144A Global Certificate of the same Class; provided that such Holder shall pay all reasonable costs and expenses associated therewith. Upon receipt by the Certificate Registrar, as registrar, at its Corporate Trust Office, of (1) such Definitive Certificate, duly endorsed as provided herein, (2) instructions from such Holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Rule 144A Global Certificate equal to the Certificate Balance of the Definitive Certificate to be exchanged or transferred, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, and (3) a certificate in the form of Exhibit D-3 hereto, then the Certificate Registrar, as registrar, shall cancel or cause the cancellation of such Definitive Certificate and shall instruct the Depository to increase, or cause to be increased, the Certificate Balance of the applicable Rule 144A Global Certificate by the aggregate Certificate Balance of the Definitive Certificate to be exchanged or transferred and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Rule 144A Global Certificate equal to the Certificate Balance of the Definitive Certificate so canceled.
Section 3.8 Notices to Clearing Agency. Whenever notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued to the related Certificateholders pursuant to Section 3.9, the Certificate Administrator shall give all such notices and communications specified herein to be given to Holders of the Book-Entry Certificates to the Clearing Agency which shall give such notices and communications to the related Participants in accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates.
(a) Definitive Certificates will be issued to the owners of beneficial interests in a Global Certificate or their nominees if (i) the Clearing Agency notifies the Depositor and the Certificate Registrar in writing that the Clearing Agency is unwilling or unable to continue as
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depositary for such Global Certificate and a qualifying successor depositary is not appointed by the Depositor within ninety (90) days thereof or (ii) the Trustee has instituted or caused to be instituted or has been directed to institute any judicial proceeding in a court to enforce the rights of the Certificateholders under this Agreement and under such Global Certificate and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or advisable for the Trustee or its custodian to obtain possession of such Global Certificate; provided, that under no circumstances will Definitive Certificates be issued to Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice of the occurrence of any of the events described in the preceding sentence, the Certificate Registrar shall notify the Clearing Agency and request the Clearing Agency to notify all Certificate Owners, through the applicable Participants, of the occurrence of the event and of the availability of Definitive Certificates to such Certificate Owners requesting the same. Upon surrender to the Certificate Registrar of the Global Certificates by the Clearing Agency, accompanied by registration instructions from the Clearing Agency for registration, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, the Definitive Certificates. None of the Depositor, the Trustee, the Custodian, the Certificate Administrator or the Certificate Registrar shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates, all references herein to obligations imposed upon or to be performed by the Clearing Agency shall be deemed to be imposed upon and performed by the Certificate Registrar, to the extent applicable with respect to such Definitive Certificates, and the Certificate Registrar and the Trustee and the Certificate Administrator shall recognize the Holders of Definitive Certificates as Certificateholders hereunder.
(b) If any Certificate Owner wishes to transfer its interest in a Rule 144A Global Certificate to an Institutional Accredited Investor that is not a Qualified Institutional Buyer, or wishes to transfer its interest in a Regulation S Global Certificate to a “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) that is an Institutional Accredited Investor but not a Qualified Institutional Buyer, then the transferee shall take delivery in the form of a Definitive Certificate, subject to the restrictions on the transfer of such Definitive Certificate in Section 3.3. No such transfer shall be made and the Certificate Registrar shall not register any such transfer unless such transfer complies with the provisions of Section 3.3 applicable to transfers of Definitive Certificates. Upon acceptance for exchange or transfer of a beneficial interest in a Global Certificate for a Definitive Certificate, as provided herein, the Certificate Registrar shall endorse on the schedule affixed to the related Global Certificate (or on a continuation of such schedule affixed to such Global Certificate and made a part thereof) an appropriate notation evidencing the date of such exchange or transfer and a decrease in the denomination of such Global Certificate equal to the denomination of such Definitive Certificate issued in exchange therefor or upon transfer thereof.
(c) Distributions of principal and interest on the Definitive Certificates shall be made by the Certificate Administrator directly to holders of Definitive Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE
IV
ADVANCES
Advances shall be made as provided herein by the Master Servicer and, if the Master Servicer does not make such Advances, by the Trustee except to the extent that the Master Servicer, the Special Servicer or the Trustee, as applicable, determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by Master Servicer.
(a) On or prior to the Advance Report Date, the Master Servicer shall notify the Trustee and the Certificate Administrator if any P&I Advance Amount for such Distribution Date is greater than zero (provided that such notice shall be deemed given if the Master Servicer complies with its obligations under Section 8.11(a) or Section 8.11(d)(v)), and the Master Servicer shall make a P&I Advance in respect of each applicable Mortgage Loan of such amount no later than the Master Servicer Remittance Date. It is understood that the obligation of the Master Servicer to make such P&I Advances is mandatory and shall apply through any court appointed stay period or similar payment delay resulting from any insolvency of the Mortgagor or related bankruptcy, notwithstanding any other provision of this Agreement. Notwithstanding the foregoing, the Master Servicer shall not be required to make such P&I Advance if the Master Servicer determines, in accordance with Section 4.4 below, that any such P&I Advance would be a Nonrecoverable Advance and shall not make such P&I Advance if such P&I Advance if made would be a Nonrecoverable Advance as determined by the Special Servicer in accordance with the Servicing Standard and Section 4.4, in which event the Special Servicer shall promptly direct the Master Servicer not to make such P&I Advance; provided that the Special Servicer has no obligation to make such determination. Such determination shall be conclusive and binding on the Trustee, the Master Servicer and the Certificateholders, and the Trustee and the Master Servicer shall be entitled to rely conclusively on any such determination by the Special Servicer. The Special Servicer shall not make P&I Advances under this Agreement. If the Master Servicer fails to make a P&I Advance that it is required to make under this Section 4.1, it shall promptly notify the Trustee and the Certificate Administrator of such failure.
(b) If the Master Servicer determines that there is a P&I Advance Amount for a Distribution Date, the Master Servicer shall on the related Master Servicer Remittance Date either (A) deposit in the Collection Account an amount equal to the P&I Advance Amount or (B) utilize funds in the Collection Account being held for future distributions or withdrawals to make such Advance, except that the portion of such P&I Advance equal to the CREFC® License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®. Any funds being held in the Collection Account for future distribution or withdrawal and so used shall be replaced by the Master Servicer from its own funds by deposit in the Collection Account on or before any future Master Servicer Remittance Date to the extent that funds in the Collection Account on such Master Servicer Remittance Date shall be less than payments to the Certificate Administrator or other Persons required to be made on such date.
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(c) In no event shall the Master Servicer (or the Trustee, as applicable) be obligated to make a P&I Advance with respect to a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan.
(d) In no event shall the Master Servicer (or the Trustee, as applicable) be obligated to make a P&I Advance with respect to any Mortgage Loan if the sum of all outstanding P&I Advances in respect of such Mortgage Loan (together with Advance Interest) is equal to or greater than the Stated Principal Balance plus all overdue amounts on such Mortgage Loan.
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans. With respect to the Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans (the “P&I Pari Passu Loans”), the Master Servicer and Special Servicer shall each be entitled to make its own determination that a P&I Advance previously made on any P&I Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance with respect to such P&I Pari Passu Loan in accordance with and subject to Section 4.1 and Section 4.4 independently of any determination made by any Other Master Servicer, Other Trustee or Other Special Servicer under the related Other Companion Loan Pooling and Servicing Agreement in respect of any P&I Pari Passu Loan following deposit of the Non-Serviced Companion Loans or Serviced Companion Loans into a commercial mortgage securitization trust, and the Other Master Servicer, Other Trustee and Other Special Servicer, as applicable, shall each make its own determination that a P&I Advance is or, if made, will be, a Nonrecoverable Advance (both as defined in the related Other Companion Loan Pooling and Servicing Agreement) or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance (both as defined in the related Other Companion Loan Pooling and Servicing Agreement) with respect to the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable, in accordance with the related Other Companion Loan Pooling and Servicing Agreement. No determination by the Master Servicer or the Special Servicer that any such P&I Advance is nonrecoverable shall be binding on the Other Master Servicer, the Other Trustee, the Other Special Servicer or the holders of any securities relating to the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable. No determination by the Other Master Servicer, the Other Trustee or the Other Special Servicer that any P&I Advance (as defined in the related Other Companion Pooling and Servicing Agreement) is nonrecoverable shall be binding on the Master Servicer, the Trustee, the Special Servicer or the Certificateholders.
The Master Servicer shall not be required to make a P&I Advance with respect to any P&I Pari Passu Loan after its receipt of notice from the related Other Master Servicer, Other Trustee or Other Special Servicer that it has determined that a P&I Advance (as defined in the related Other Companion Loan Pooling and Servicing Agreement) is or, if made, will be, a Nonrecoverable Advance on the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable, or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance pursuant to the relevant Other Companion Loan Pooling and Servicing Agreement. If the Master Servicer determines (or has received notice from the Special Servicer of its determination) that a P&I Advance would be (if made), or any outstanding P&I Advance previously made is, a Nonrecoverable Advance, the Master Servicer shall provide the Other Master Servicer written notice of such determination. If the Master Servicer, Special Servicer or
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Trustee receives written notice by the Other Master Servicer that it has determined, with respect to any Mortgage Loan, that any proposed future P&I Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance, the Master Servicer shall use reasonable efforts to consult on a non-binding basis with the Other Master Servicer regarding the circumstances with respect to such Mortgage Loan, but the Master Servicer, Special Servicer or Trustee, as applicable, shall be allowed to ultimately make its own determination. Any determination that a P&I Advance would be a Nonrecoverable Advance with respect to any Non-Serviced Mortgage Loan by the Master Servicer, Special Servicer or Trustee, any Other Master Servicer, any Other Trustee or any Other Special Servicer may, in all cases, be conclusively relied on by each of the Trustee, the Master Servicer and the Special Servicer. If the Master Servicer or the Trustee does not receive notice of an Appraisal Reduction with respect to any Non-Serviced Mortgage Loan, the Master Servicer or the Trustee, as applicable, shall not be obligated to proportionately reduce the amount of any P&I Advance required to be made by it, except to the extent an Appraisal Reduction is applied as described in the last sentence of the definition of “Appraisal Reduction.”
Following a securitization of a Serviced Companion Loan, the Master Servicer shall be required to deliver to the related Other Master Servicer the following information: (i) any loan related information (in the form received), including without limitation CREFC® Reports relating to the related Serviced Pari Passu Mortgage Loan, applicable to a determination that an Advance is or would be a Nonrecoverable Advance, within one (1) Business Day of the Master Servicer’s receipt thereof, (ii) notice of any Servicing Advance it, the Special Servicer or the Trustee makes with respect to the related Serviced Pari Passu Mortgage Loan within one (1) Business Day of the making of such Advance and (iii) notice of any determination that any Servicing Advance is a Nonrecoverable Advance within one (1) Business Day thereof.
Section 4.2 Servicing Advances. The Master Servicer and, if the Master Servicer does not, the Trustee to the extent the Trustee receives written notice from the Certificate Administrator that such Advance has not been made by the Master Servicer, shall make Servicing Advances to the extent provided in this Agreement, except to the extent that the Master Servicer or the Trustee, as applicable, determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance and, subject to the last sentence of this paragraph, except to the extent the Special Servicer determines in accordance with the Servicing Standard and Section 4.4 that such Advance, if made, would be a Nonrecoverable Advance, in which event the Special Servicer shall promptly direct the Master Servicer not to make such Advance (and the Master Servicer shall be bound by any such determination); provided that the Special Servicer has no obligation to make such determination. Such determination by the Master Servicer or the Special Servicer shall be conclusive and binding on the Trustee and the Certificateholders and, in the case of any A/B Whole Loan or Loan Pair, the holder of any related Serviced B Note and/or Serviced Companion Loan. The Special Servicer shall not be required to make Servicing Advances under this Agreement but may make such Servicing Advances (on an emergency basis) at its option in which event the Master Servicer shall reimburse the Special Servicer for such Servicing Advance (together with Advance Interest) promptly (but no later than five (5) Business Days) following receipt of a statement therefor. Promptly after discovering that the Master Servicer has failed to make a Servicing Advance that the Master Servicer is required to make hereunder, the Certificate Administrator shall promptly notify the Trustee (if the Certificate Administrator is not also the Trustee) in writing of the failure by the Master Servicer to make such Servicing Advance. The Master
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Servicer may make Servicing Advances in its own discretion if it determines that making such Servicing Advance is in the best interest of the Certificateholders, as a collective whole (and, in the case of any A/B Whole Loan, in the best interest of the holder of any related Serviced B Note and the Trust as a collective whole and, in the case of any Loan Pair, in the best interest of the holder of the related Serviced Companion Loan and the Trust as a collective whole), even if the Master Servicer or the Special Servicer has determined, in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is obligated to make “Servicing Advances” as defined in, and pursuant to, the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan, and the Master Servicer shall have no obligation or authority to make Servicing Advances with respect to such Non-Serviced Mortgage Loan.
Section 4.3 Advances by the Trustee.
(a) To the extent that the Master Servicer fails to make a P&I Advance with respect to a Mortgage Loan by the Master Servicer Remittance Date (other than a P&I Advance that the Master Servicer or the Special Servicer determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance to the extent the Trustee receives written notice from the Certificate Administrator not later than 10:00 a.m. (New York City time) on the Distribution Date that such Advance has not been made by the Master Servicer on the Master Servicer Remittance Date unless the Trustee determines (in its good faith business judgment) that such P&I Advance, if made, would be a Nonrecoverable Advance. The Certificate Administrator shall notify (i) the Trustee (if the Certificate Administrator is not also the Trustee) in writing as soon as practicable, but not later than 10:00 a.m. (New York City time) on the Distribution Date if the Master Servicer has failed to make a P&I Advance and (ii) the Master Servicer and the Trustee in writing as soon as practicable, but not later than 5:00 p.m. (New York City time) on the Master Servicer Remittance Date, if it has not received a P&I Advance with respect to any Mortgage Loan set forth in the Master Servicer Remittance Report provided to the Certificate Administrator on the related Advance Report Date; provided, the failure of the Certificate Administrator to provide any such notice within such timeframe shall not diminish in any respect the obligations of the Master Servicer or the Trustee, as applicable, to make such P&I Advance in accordance with the terms set forth above.
(b) To the extent that the Master Servicer fails to make a Servicing Advance by the date such Servicing Advance is required to be made (other than a Servicing Advance that the Master Servicer or the Special Servicer, as applicable, determines is a Nonrecoverable Advance), and a Responsible Officer of the Trustee receives actual notice thereof, the Trustee shall make such Servicing Advance promptly, but in any event, not later than five (5) Business Days after notice thereof in accordance with Section 4.2, unless the Trustee determines (in its good faith business judgment) that such Servicing Advance, if made, would be a Nonrecoverable Advance.
(c) In no event shall the Trustee be obligated to make a P&I Advance with respect to a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan or any Servicing Advance with respect to a Non-Serviced Mortgage Loan.
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Section 4.4 Evidence of Nonrecoverability.
(a) If the Master Servicer or the Special Servicer determines at any time, in its sole discretion, exercised in good faith, that any Advance previously made (or Unliquidated Advance in respect thereof) constitutes, or any proposed Advance, if made, would constitute, a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate delivered to the other such party, the Trustee, the Depositor, the Certificate Administrator, the 17g-5 Information Provider, the Trust Advisor (other than during any Subordinate Control Period), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the holder of any related Serviced B Note or Serviced Companion Loan (if the Advance relates to an A/B Whole Loan or a Loan Pair, as applicable) by the Business Day prior to the Distribution Date. Such Officer’s Certificate shall set forth the reasons for such determination of nonrecoverability, together with, to the extent such information, report or document is in the Master Servicer’s or Special Servicer’s possession, and, if such information, reports or documents are used by the Master Servicer or the Special Servicer, as applicable, to determine that any P&I Advance or Servicing Advance, as applicable, would be a Nonrecoverable Advance, any related financial information such as related income and expense statements, rent rolls, occupancy status, property inspections and any Appraisals performed within the last twelve (12) months on the Mortgaged Property, any engineers’ reports, environmental surveys, internal final valuations or other information relevant thereto which support such determination. If the Trustee determines at any time that any Advance previously made by the Trustee constitutes, or any proposed Advance, if made by the Trustee, would constitute, a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate of a Responsible Officer of the Trustee delivered to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the 17g-5 Information Provider, the holder of any related Serviced B Note or Serviced Companion Loan (if the Advance relates to an A/B Whole Loan or a Loan Pair, as applicable), the Trust Advisor (other than during any Subordinate Control Period) and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), stating the reasons for such determination. In making any nonrecoverability determination as set forth above, the relevant party shall be entitled (i) to consider (among other things) the obligations of the Mortgagor under the terms of the Mortgage Loan as it may have been modified, (ii) to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies as they actually are or may be modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties and/or (iii) to estimate and consider, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer (among other things), future expenses and/or the timing of recovery to such party. In addition, any Person, in considering whether any proposed P&I Advance or Servicing Advance would be a Nonrecoverable Advance, shall be entitled to give due regard to the existence of any Nonrecoverable Advance (including any related Advance Interest) or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, A/B Whole Loans or Loan Pairs which, at the time of such consideration, the reimbursement of which is being deferred or delayed by the Master Servicer, the Special Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that proceeds on the related Mortgage Loan, A/B Whole Loan or Loan Pair are a source of recovery not only for the Advance under consideration, but also as a potential source of recovery of such
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Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. Furthermore, the relevant party may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, update or change its nonrecoverability determinations at any time in accordance with the terms hereof and may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, obtain from the Special Servicer any analysis, appraisals or other information in the possession of the Special Servicer for such purposes. Any determination by the Special Servicer that any Advance previously made (or Unliquidated Advance in respect thereof) constitutes a Nonrecoverable Advance shall be conclusive and binding on the Master Servicer and the Trustee, and the Master Servicer and Trustee shall be entitled to rely conclusively on any such determination by the Special Servicer.
(b) The Trustee shall not make an Advance that the Master Servicer or the Special Servicer has previously determined in accordance with the Servicing Standard to be a Nonrecoverable Advance (and, with respect to a Mortgage Loan included in a Loan Pair or any Non-Serviced Mortgage Loan, shall not be required to make an Advance that the related Other Master Servicer has previously determined to be a Nonrecoverable Advance). Notwithstanding any other provision of this Agreement, none of the Master Servicer, the Special Servicer or the Trustee shall be obligated to, nor shall it, make any Advance or make any payment that is designated in this Agreement to be an Advance, if it determines, with regard to the Trustee, in its good faith business judgment or, with respect to the Master Servicer or Special Servicer, in accordance with the Servicing Standard that such Advance or such payment (including interest accrued thereon at the Advance Rate) would be a Nonrecoverable Advance. Absent bad faith, the Master Servicer’s and Special Servicer’s determinations in accordance with the above provisions shall be conclusive and binding on the Trustee, the Certificate Administrator and the Certificateholders and may be conclusively relied on by the Trustee and each other. The Master Servicer or the Special Servicer, as applicable, shall consider Unliquidated Advances in respect of prior P&I Advances and Servicing Advances as outstanding Advances for purposes of nonrecoverability determinations as if such Unliquidated Advance were a P&I Advance or Servicing Advance, as applicable.
(c) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Trustee or Non-Serviced Mortgage Loan Fiscal Agent, as applicable, shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances pursuant to and to the extent set forth in the related Non-Serviced Mortgage Loan Intercreditor Agreement (with, in each case, any accrued and unpaid interest thereon provided for under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the manner set forth in Section 5.2.
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan. Any unreimbursed Advance funded from the Master Servicer’s, the Special Servicer’s or the Trustee’s own funds shall accrue interest, compounded annually, at a per annum rate equal to the Advance Rate, from and including the date such Advance was made to but not including the date on which such Advance has been reimbursed; provided that neither the Master Servicer nor any other party shall be entitled to interest accrued on the amount of any P&I Advance with respect to any Mortgage Loan for the period commencing on the date of such P&I Advance and ending on the day on which the grace period applicable to the related Mortgagor’s obligation to make the related Scheduled Payment expires pursuant to the related
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Mortgage Loan documents. All Late Collections on any Non-Serviced Mortgage Loan in respect of interest shall, promptly following receipt thereof, be applied by the Master Servicer to reimburse the interest component of any P&I Advance outstanding with respect to such Non-Serviced Mortgage Loan. Any party that makes a P&I Advance with respect to any Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced Mortgage Loan Master Servicer monthly, at least two (2) Business Days prior to the next succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of whether (and, if any, how much) Advance Interest will be payable on the interest component of that P&I Advance through the next succeeding related Master Servicer Remittance Date. For purposes of determining whether a P&I Advance is outstanding, amounts collected with respect to a particular Mortgage Loan (including a successor REO Mortgage Loan) and treated as collections of principal or interest shall be applied first to reimburse the earliest P&I Advance, and then each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The Master Servicer shall use efforts consistent with the Servicing Standard to collect (but shall have no further obligation to collect), with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and the Serviced Companion Loans that are not Specially Serviced Mortgage Loans, Penalty Charges from the Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer shall be entitled to retain Excess Penalty Charges paid by any Mortgagor during a Collection Period with respect to any Mortgage Loan (other than the portion of such Excess Penalty Charges that relate to the period commencing after the Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain Excess Penalty Charges with respect to such Specially Serviced Mortgage Loan) as additional servicing compensation. Penalty Charges shall be applied in accordance with Section 5.2(b).
Section 4.6 Reimbursement of Advances and Advance Interest.
(a) Advances made with respect to each Mortgage Loan, Serviced Companion Loan, Serviced B Note, Specially Serviced Mortgage Loan or REO Property (including Advances later determined to be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed to the extent of the amounts identified to be applied therefor in Section 5.2. The aggregate of the amounts available to repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in any Collection Period with respect to Mortgage Loans, any Serviced Companion Loan or any Serviced B Note or Specially Serviced Mortgage Loans or REO Property shall be an “Available Advance Reimbursement Amount.”
(b) To the extent that Advances have been made on the Mortgage Loans, any Loan Pair, any A/B Whole Loan or any REO Loans, the Available Advance Reimbursement Amount with respect to any Master Servicer Remittance Date shall be applied to reimburse (i) the Trustee for any Advances outstanding to the Trustee with respect to any of such Mortgage Loans, Loan Pairs, A/B Whole Loans and/or REO Loans, plus any Advance Interest owed to the Trustee with respect to such Advances, and then (ii) the Master Servicer and the Special Servicer for any Advances outstanding thereto with respect to any of such Mortgage Loans, Loan Pairs, A/B Whole Loans and/or REO Loans, plus any Advance Interest owed to the Master Servicer and the Special Servicer with respect to such Advances. To the extent that any Advance Interest payable to the Master Servicer, the Special Servicer or the Trustee with respect to an Advance on a Specially Serviced Mortgage Loan or REO Loan cannot be recovered from the related Mortgagor, the amount of such Advance Interest shall be payable to the Trustee, the Special
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Servicer or the Master Servicer, as the case may be, from amounts on deposit in the Collection Account (or sub-account thereof) or the Distribution Account, to the extent of amounts identified to be applied therefor, pursuant to Section 5.2(a), Section 5.2(b) or Section 5.3(b)(ii). The Master Servicer’s, the Special Servicer’s and the Trustee’s right of reimbursement under this Agreement for Advances, together with Advance Interest thereon, shall be prior to the rights of the Certificateholders (and, in the case of a Serviced Companion Loan, the holder thereof and, in the case of a Serviced B Note, the holder thereof) to receive any amounts recovered with respect to such Mortgage Loans, Serviced Companion Loans, Serviced B Notes or REO Loans.
(c) Advance Interest will be paid to the Trustee, the Master Servicer and/or the Special Servicer (in accordance with the priorities specified in the preceding paragraph) first, in accordance with Section 5.2(b), from Penalty Charges and Allocable Modification Fees collected from the Mortgage Loans and, subject to the related Intercreditor Agreements, the Serviced Companion Loans and Serviced B Note (including REO Loans) during any particular Collection Period during which the related Advance is reimbursed, and then from Excess Liquidation Proceeds then available, prior to payment from any other amounts. Advance Interest payable to the Master Servicer, the Special Servicer or the Trustee in respect of Servicing Advances on any Loan Pair shall be allocated to the Serviced Pari Passu Mortgage Loan and the Serviced Companion Loan on a pro rata basis based upon the respective Unpaid Principal Balances thereof (after taking into account any amount allocable to any related Serviced B Note, if any, in accordance with the terms of the related Intercreditor Agreement).
(d) Amounts applied to reimburse Advances shall first be applied to reduce Advance Interest thereon that was not paid from amounts specified in the preceding paragraph (c) and then to reduce the outstanding amount of such Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket expenses, in accordance with the Servicing Standard, in connection with servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse the Special Servicer for such expenditures with interest at the Advance Rate promptly (but no later than five (5) Business Days) after receiving an invoice and a report from the Special Servicer, subject to Section 4.4. The Special Servicer shall not invoice the Master Servicer more than once per calendar month and shall provide an Officer’s Certificate setting forth its expenses and appropriate documentation evidencing such reimbursements. With respect to each Collection Period, the Special Servicer shall deliver such invoice and report to the Master Servicer by the following Determination Date. All such amounts reimbursed by the Master Servicer shall be a Servicing Advance, subject to Section 4.4. If the Master Servicer fails to reimburse the Special Servicer hereunder or the Master Servicer determines that such Servicing Advance was or, if made, would be a Nonrecoverable Advance and the Master Servicer does not make such payment, the Special Servicer shall notify the Master Servicer and the Certificate Administrator in writing of such nonpayment and the amount payable to the Special Servicer and shall be entitled to receive reimbursement from the Trust in the same manner as the Master Servicer would have been reimbursed for the Advance with interest at the Advance Rate. The Master Servicer, the Certificate Administrator and the Trustee shall have no obligation to verify the amount payable to the Special Servicer pursuant to this Section 4.6(e) and circumstances surrounding the notice delivered by the Special Servicer pursuant to this Section 4.6(e).
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ARTICLE
V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.
(a) On or prior to the Closing Date, the Master Servicer shall open, or cause to be opened, and shall thereafter maintain, or cause to be maintained, a separate account or accounts, which accounts must be Eligible Accounts, in the name of “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (the “Collection Account”).
(b) On or prior to the date the Master Servicer shall first deposit funds in a Collection Account, the Master Servicer shall give to the Certificate Administrator and the Trustee prior written notice of the name and address of the depository institution at which such account is maintained and the account number of such account. The Master Servicer shall take such actions as are necessary to cause the depository institution holding the Collection Account to hold such account in the name of the Master Servicer as provided in Section 5.1(a), subject to the Master Servicer’s (or its sub-servicer’s) right to direct payments and investments and its rights of withdrawal under this Agreement.
(c) On the Closing Date, the Depositor shall deliver to the Master Servicer the Initial Deposit, and the Master Servicer shall deposit into the Collection Account the Initial Deposit on that date. The Master Servicer shall deposit, or cause to be deposited, into the Collection Account on the Business Day following receipt of properly identified funds (provided, that to the extent any of the following amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Master Servicer shall use commercially reasonable efforts to deposit such amounts into the Collection Account within one (1) Business Day of receipt of such amounts but, in any event, the Master Servicer shall deposit such amounts into the Collection Account within two (2) Business Days of receipt of such amounts), the following amounts received by it (including amounts remitted to the Master Servicer by the Special Servicer from an REO Account pursuant to Section 9.14), other than in respect of interest and principal on the Mortgage Loans, any Serviced Companion Loan or any Serviced B Note due (or deemed due) on or before the Cut-off Date, which shall be remitted to the related Seller:
(A) Principal: all payments on account of principal, including Principal Prepayments, the principal component of Scheduled Payments, and any Late Collections in respect thereof, on the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note;
(B) Interest: all payments on account of interest on the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (minus any portion of any such payment that is allocable to the period prior to the Cut-off Date which shall be remitted to the Depositor and excluding Interest Reserve
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Amounts to be deposited in the Interest Reserve Account pursuant to Section 5.3(b) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into an Escrow Account and not deposited in the Collection Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into an Escrow Account and not deposited in the Collection Account;
(F) REO Income: all REO Income received from the Special Servicer;
(G) Investment Losses: any amounts required to be deposited by the Master Servicer pursuant to Section 5.1(e) in connection with losses realized on Eligible Investments with respect to funds held in the Collection Account and amounts required to be deposited by the Special Servicer pursuant to Section 9.14(b) in connection with losses realized on Eligible Investments with respect to funds held in the REO Account;
(H) Advances: all P&I Advances, unless made directly to the Distribution Account;
(I) Other: all Prepayment Premiums, Penalty Charges, Modification Fees and Assumption Fees and any and all other amounts required to be deposited in the Collection Account pursuant to this Agreement, including Purchase Proceeds of any Mortgage Loans repurchased by a Seller or substitution shortfall amounts (as set forth in the second (2nd) paragraph of Section 2.3(a)) paid by a Seller in connection with the substitution of any Qualifying Substitute Mortgage Loans, payments or recoveries in respect of Unliquidated Advances or in respect of Nonrecoverable Advances paid from principal collections on the Mortgage Loan pursuant to Section 5.2(a)(II), any Actual Recoveries of Trust Advisor Expenses, any other amounts received with respect to any Serviced Companion Loan and with respect to any Serviced B Note, and all other amounts received pursuant to the cure and purchase rights set forth in the applicable Intercreditor Agreement; and
(J) to the extent not otherwise set forth above, all amounts received from each Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Trustee or Non-Serviced Mortgage Loan Certificate Administrator pursuant to the related
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Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement.
With respect to any A/B Whole Loan, the Master Servicer shall establish and maintain one or more sub-accounts of the Collection Account (each an “A/B Whole Loan Custodial Account”) into which the Master Servicer shall deposit any amounts described above that are required to be paid to the holder of the related Serviced B Note pursuant to the terms of the related Intercreditor Agreement, in each case on the same day as the deposit thereof into the Collection Account. Any A/B Whole Loan Custodial Account shall be held in the name of “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer for the benefit of the holder of the related Serviced B Note” and shall not be part of any REMIC Pool or the Grantor Trust.
With respect to any Loan Pair, the Master Servicer shall establish and maintain one or more sub-accounts of the Collection Account (each, a “Serviced Companion Loan Custodial Account”) into which the Master Servicer shall deposit any amounts described above that are required to be paid to the holder of the related Serviced Companion Loan pursuant to the terms of the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents), in each case on the same day as the deposit thereof into the Collection Account. Each Serviced Companion Loan Custodial Account shall be held in the name of “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer for the benefit of the holder of the related Serviced Companion Loan” and shall not be part of any REMIC Pool or the Grantor Trust.
Remittances from any REO Account to the Master Servicer for deposit in the Collection Account shall be made by the Special Servicer no later than the Special Servicer Remittance Date.
(d) Reserved.
(e) Funds in the Collection Account (including any Custodial Accounts) may be invested and, if invested, shall be invested by, and at the risk of, the Master Servicer in Eligible Investments selected by the Master Servicer which shall mature, unless payable on demand, not later than the Business Day immediately preceding the next Master Servicer Remittance Date, and any such Eligible Investment shall not be sold or disposed of prior to its maturity unless payable on demand. All such Eligible Investments shall be made in the name of “U.S. Bank National Association, as Trustee for the benefit of the Holders of the Holders of the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 and the holder of any related Serviced Companion Loan or Serviced B Note, as their interests may appear.” None of the Depositor, the Mortgagors, the Underwriters, the Initial Purchasers, the Sellers, the Special Servicer, the Certificate Administrator, the Trustee or the Trust Advisor shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such investment (net of any portion thereof applied to offset losses on other investments) shall be paid to the Master
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Servicer as additional servicing compensation and shall be subject to its withdrawal at any time from time to time. The amount of any losses incurred in respect of any such investments shall be for the account of the Master Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Collection Account (and, solely to the extent that the loss is of an amount credited to a Custodial Account, deposit to such Custodial Account) out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Master Servicer deposits in or transfers to the Collection Account or any Custodial Account, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Collection Account or such Custodial Account, as the case may be, any provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any default occurs in the making of a payment due under any Eligible Investment, or if a default occurs in any other performance required under any Eligible Investment, the Certificate Administrator, on behalf of the Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings; provided that if the Master Servicer shall have deposited in the Collection Account or the related Custodial Account, as applicable, an amount equal to all amounts due under any such Eligible Investment (net of anticipated income or earnings thereon that would have been payable to the Master Servicer as additional servicing compensation) the Master Servicer shall have the sole right to enforce such payment or performance.
(g) If a Mortgage Loan provides for payment by the Mortgagor to the Master Servicer of amounts to be used for payment of Escrow Amounts for the account of the Mortgagor, the Master Servicer shall deal with these amounts in accordance with the Servicing Standard, the terms of the related Mortgage Loans and Sections 8.3(e) and 10.3 hereof and the terms and conditions of any related Intercreditor Agreement. Schedule V sets forth those Mortgage Loans as to which an upfront reserve was collected at closing in an amount in excess of $75,000 with respect to specific immediate work, including engineering work, completion of additional construction, environmental remediation or similar one-time projects (but not with respect to escrow accounts maintained for ongoing obligations, such as real estate taxes, insurance premiums, ongoing property maintenance, replacements and capital improvements or debt service).
Section 5.2 Withdrawals of Funds in the Collection Account.
(a) Subsection (I). The Master Servicer shall, from time to time, make withdrawals from the Collection Account (from the amounts specified for such purposes) for the following purposes (such list not to constitute an order of priority) and remit the amounts so withdrawn by wire transfer prior to 3:00 p.m. (New York City time), on the related Master Servicer Remittance Date, in immediately available funds to the account specified in this Section
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or otherwise (1) to such account as it shall determine from time to time, in the case of amounts payable to the Master Servicer from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (2) to the account specified in writing by the Certificate Administrator from time to time, in the case of amounts payable to the Certificate Administrator, the Custodian and the Trustee from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (3) to the Special Servicer from time to time, in the case of amounts payable to the Special Servicer from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below; and (4) to the Trust Advisor from time to time, in the case of amounts payable to the Trust Advisor from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clause (iv) below:
(i) Fees: the Master Servicer shall apply Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and shall pay any Excess Modification Fees, Excess Penalty Charges and Assumption Fees to the Master Servicer and/or the Special Servicer in accordance with Section 8.10 and/or Section 9.11, as applicable;
(ii) Servicing Advances (including amounts later determined to be Nonrecoverable Advances): (A) in the case of all Mortgage Loans, Serviced Companion Loans, Serviced B Notes and REO Mortgage Loans, subject to clause (B) below and subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master Servicer, the Special Servicer and the Trustee pursuant to Section 4.6, (x) prior to a Final Recovery Determination or determination in accordance with Section 4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan, Serviced Companion Loan, REO Mortgage Loan or Serviced B Note, as applicable, from payments made by the related Mortgagor of the amounts to which a Servicing Advance relates or from REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a Servicing Advance has been or is being reimbursed, with any related Advance Interest thereon first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections), or (y) after a Final Recovery Determination or determination that any Servicing Advance on the related Mortgage Loan, Serviced Companion Loan, REO Mortgage Loan or Serviced B Note is a Nonrecoverable Advance in accordance with Section 4.4, any Servicing Advances made on the related Mortgage Loan, related Serviced Companion Loan, related Serviced B Note or REO Property from any funds on deposit in the Collection Account (regardless of whether such amount was recovered from the applicable Mortgage Loan, Serviced Companion Loan, Serviced B Note or REO Property) and pay Advance Interest thereon first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections); and (B) in the case of any
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Non-Serviced Mortgage Loan and from any funds on deposit in the Collection Account, to reimburse the applicable Non-Serviced Mortgage Loan Master Servicer, the applicable Non-Serviced Mortgage Loan Special Servicer and the applicable Non-Serviced Mortgage Loan Trustee for Pari Passu Loan Nonrecoverable Advances and any accrued and unpaid interest thereon provided for under the related Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced Mortgage Loan Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final Recovery Determination or determination that any Advance is a Nonrecoverable Advance, any P&I Advances on a Mortgage Loan or REO Mortgage Loan from Late Collections made by the Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance has been or is being reimbursed, any related Advance Interest thereon, first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections), or (y) if after a Final Recovery Determination or determination in accordance with Section 4.4 that any P&I Advance is a Nonrecoverable Advance, any P&I Advances made on a Mortgage Loan or REO Mortgage Loan from funds on deposit in the Collection Account (regardless of whether such amount was recovered from the applicable Mortgage Loan or REO Property) and any Advance Interest thereon, first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections);
(iv) Servicing Fees, Special Servicer Compensation and Trust Advisor Fees: to pay to itself the Master Servicing Fee, subject to reduction for any Compensating Interest, to pay to the Special Servicer the Special Servicing Fee and the Workout Fee and to pay to the Trust Advisor the Trust Advisor Fee (exclusive of any TA Unused Fees) and any unpaid Trust Advisor Consulting Fees (but only to the extent such Trust Advisor Consulting Fees were received from the related Mortgagor);
(v) Trustee Fee, Custodian Fee and Certificate Administrator Fee: to pay to the Distribution Account for withdrawal by the Certificate Administrator for payment to itself, the Custodian and the Trustee, the Certificate Administrator Fee (inclusive of the Trustee Fee and the Custodian Fee);
(vi) Expenses of Trust: to pay to the Person entitled thereto (other than the Trust Advisor) any amounts specified herein to be Additional Trust Expenses (at the time set forth herein or in the definition thereof), and any other amounts that in fact constitute Additional Trust Expenses whose payment is not more specifically provided for in this
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Agreement; provided that the Depositor shall not be entitled to receive reimbursement for performing its duties under this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery Determination to pay to the Special Servicer from the Collection Account, the amount certified by the Special Servicer equal to the Liquidation Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself net income and gain realized on the investment of funds deposited in the Collection Account (including any Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the amount of the aggregate Prepayment Interest Excesses relating to Mortgage Loans which are not Specially Serviced Mortgage Loans, received during the most recently ended Collection Period (to the extent not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans incurred during the most recently ended Collection Period); and to pay to the Special Servicer the amount of the aggregate Prepayment Interest Excesses relating to Mortgage Loans that were Specially Serviced Mortgage Loans that were subject to voluntary Principal Prepayments during the most recently ended Collection Period (not from Liquidation Proceeds or from modifications to Specially Serviced Mortgage Loans), to the extent not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans incurred during the most recently ended Collection Period;
(x) CREFC® License Fee: to pay to CREFC (solely to the extent of funds available in the Collection Account following the withdrawal of the amounts described in clauses (i) through (ix) above), the CREFC® License Fee;
(xi) Correction of Errors: to withdraw funds deposited in the Collection Account in error;
(xii) Distribution Account: to make payment on each Master Servicer Remittance Date of the remaining amounts in the Collection Account (including any Excess Interest and Actual Recoveries of Trust Advisor Expenses) to the Distribution Account or applicable sub-account thereof (or in the case of any Excess Interest, deposit to the Excess Interest Sub-account under Section 5.3(b)), other than amounts held for payment in future periods or pursuant to clause (xiii) below;
(xiii) Certain Reserve Accounts: to make payments on each Master Servicer Remittance Date to (A) the Excess Liquidation Proceeds Reserve Account of any Excess Liquidation Proceeds not otherwise applied to pay Advance Interest and (B) the TA Unused Fees Reserve Account of any TA Unused Fees; and
(xiv) Clear and Terminate: to clear and terminate the Collection Account in connection with the termination of the Trust;
provided, that in the case of any Serviced B Note for which an A/B Whole Loan Custodial Account is required to be established by the Master Servicer:
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(A) to the extent consistent with the related Intercreditor Agreement, the Master Servicer shall be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii) above, but only insofar as the payment or reimbursement described therein arises from or is related to the corresponding A/B Whole Loan and is allocable to (or, subject to lack of availability at the time, would otherwise have originally been paid out of collections on) such Serviced B Note pursuant to this Agreement or the related Intercreditor Agreement, and the Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts transferred to the related A/B Whole Loan Custodial Account in error, and amounts necessary for the clearing and termination of the Collection Account in connection with the termination of the Trust;
(B) the Master Servicer shall be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts not otherwise described in clause (A) above to which the holder of the related A Note is entitled under the related A/B Whole Loan and the related Intercreditor Agreement (including in respect of interest, principal and Prepayment Premiums in respect of the A Note, as applicable (whether or not by operation of any provision of the related Intercreditor Agreement that entitles the holder of such A Note to receive remittances in amounts calculated without regard to any modification, waiver or amendment of the economic terms of such A Note)); and
(C) unless otherwise set forth in the related Intercreditor Agreement, the Master Servicer shall on each Master Servicer Remittance Date remit to the holder of the related Serviced B Note all amounts on deposit in the applicable A/B Whole Loan Custodial Account (net of amounts permitted or required to be transferred therefrom as set forth in clauses (A) and/or (B) above), to the extent that the holder of such Serviced B Note is entitled thereto under the related Intercreditor Agreement (including by way of the operation of any provision of the related Intercreditor Agreement that entitles the holder of such Serviced B Note to reimbursement of cure payments made by it);
and provided, further, that in the case of any Serviced Companion Loan:
(A) to the extent consistent with the related Intercreditor Agreement, the Master Servicer shall be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in
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any one or more of clauses (i), (ii), (iv), (vi), (vii) and (viii) above, but only insofar as the payment or reimbursement described therein arises from or is related to the corresponding Loan Pair and is allocable to, and may (in accordance with the related Intercreditor Agreement) be paid out of amounts otherwise payable to the holder of, the related Serviced Companion Loan, and the Master Servicer shall also be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any Custodial Account, of amounts transferred to the related Serviced Companion Loan Custodial Account in error, and amounts necessary for the clearing and termination of the Collection Account in connection with the termination of the Trust;
(B) the Master Servicer shall be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts not otherwise described in clause (A) above to which the holder of the related Serviced Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement (including in respect of interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, one (1) Business Day after the determination date under the related Other Companion Loan Pooling and Servicing Agreement (provided such Business Day is at least one Business Day following the Master Servicer’s receipt of properly identified and available funds), remit to the holder of the related Serviced Companion Loan all amounts on deposit in the related Serviced Companion Loan Custodial Account (net of amounts permitted or required to be transferred therefrom as set forth in clauses (A) and/or (B) above), to the extent that the holder of such Serviced Companion Loan is entitled thereto under the related Intercreditor Agreement.
The Master Servicer shall pay to each of the Special Servicer (or, in the case of an emergency, to third party contractors at the written direction of the Special Servicer), the Trust Advisor, the Custodian, the Trustee and the Certificate Administrator, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt on or prior to the related Determination Date of a written statement of an officer of the Special Servicer, an officer of the Trust Advisor or a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, describing the item and amount to which the Special Servicer (or, in the case of an emergency, such third party contractor), the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, is entitled (unless such payment to the Special Servicer, the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate or investigate (absent manifest error) the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis.
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No decision by the Master Servicer or the Trustee under either this Section 5.2(a)(I) or subsection (iv) of Section 5.2(a)(II), to defer the reimbursement of Advances and/or Advance Interest shall be construed as an agreement by the Master Servicer to subordinate (in respect of realizing losses), to any Class of Certificates, such party’s right to such reimbursement during such period of deferral.
Expenses incurred with respect to any A/B Whole Loan or Loan Pair shall be allocated in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents). The Master Servicer shall keep and maintain a separate accounting for each Mortgage Loan, Serviced Companion Loan and Serviced B Note for the purpose of justifying any withdrawal or transfer from the Collection Account and any Custodial Account, as applicable. If funds collected in respect of the A Notes (or, in the case of a Loan Pair with a Serviced B Note, if any, in respect of the related Mortgage Loan and Serviced Companion Loan(s)) are insufficient to pay the Master Servicing Fee in respect thereof, then the Master Servicer shall be entitled to withdraw the amount of such shortfall from the collections on, and other proceeds of, the Serviced B Note that are held in the related Custodial Account. The Master Servicer shall not be permitted to withdraw any funds from the portion of the Collection Account that does not constitute such Custodial Account unless there are no remaining funds in such Custodial Account available and required to be paid in accordance with the related Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this Section 5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts. If any Advance made with respect to any Mortgage Loan on or before the date on which such Mortgage Loan becomes (or, but for the requirement that the Mortgagor shall have made three (3) consecutive scheduled payments under its modified terms, would then constitute) a Rehabilitated Mortgage Loan, together with Advance Interest accrued thereon, is not, pursuant to the operation of the provisions of Section 5.2(a)(I), reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance, together with such Advance Interest, shall constitute a “Workout-Delayed Reimbursement Amount” to the extent that such amount has not been determined to constitute a Nonrecoverable Advance. All references herein to “Workout-Delayed Reimbursement Amount” shall be construed always to mean the related Advance and any Advance Interest thereon, together with any further Advance Interest that accrues on the unreimbursed portion of such Advance from time to time in accordance with the other provisions of this Agreement. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine that such amount instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below (subject to the terms and conditions thereof) sets forth the terms of and conditions to the right of a Person to be reimbursed for any Workout-Delayed Reimbursement Amount to the extent
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that such Person is not otherwise entitled to reimbursement and payment of such Workout-Delayed Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above. Subsection (iv) below (subject to the terms and conditions thereof) authorizes the Master Servicer to abstain from reimbursing itself (or, if applicable, the Trustee to abstain from obtaining reimbursement) for Nonrecoverable Advances under certain circumstances at its sole option. Upon any determination that all or any portion of a Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance, then the reimbursement or payment of such amount (and any further Advance Interest that may accrue thereon) shall cease to be subject to the operation of subsection (iii) below, such amount (and further Advance Interest) shall be as fully payable and reimbursable to the relevant Person as would any other Nonrecoverable Advance (and Advance Interest thereon) and, as a Nonrecoverable Advance, such amount may become the subject of the Master Servicer’s (or, if applicable, the Trustee’s) exercise of its sole option authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement and payment for all Workout-Delayed Reimbursement Amounts in each Collection Period; provided that the aggregate amount (for all such Persons collectively) of such reimbursements and payments in such Collection Period shall not exceed (and the reimbursement and payment shall be made from) the aggregate amount in the Collection Account allocable to principal received with respect to the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances) and net of any Nonrecoverable Advances then outstanding and reimbursable from such principal in accordance with Section 5.2(a)(II)(iv) below. As and to the extent provided in clause (II)(A) of the definition thereof, the Principal Distribution Amount for the Distribution Date related to such Collection Period shall be reduced to the extent that such payment or reimbursement of a Workout-Delayed Reimbursement Amount is made from the aggregate amount in the Collection Account allocable to principal pursuant to the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to Abstain from Reimbursements of Certain Nonrecoverable Advances. To the extent that Section 5.2(a)(I) otherwise entitles each of the Master Servicer, the Special Servicer and the Trustee to reimbursement for any Nonrecoverable Advance (or payment of Advance Interest thereon from a source other than Penalty Charges and Allocable Modification Fees on the related Mortgage Loan) during any Collection Period, then, notwithstanding any contrary provision of subsection (I) above, (a) to the extent that one or more such reimbursements and payments of Nonrecoverable Advances (and such Advance Interest thereon) are made, such reimbursements and payments shall be made, first, from the aggregate amount in the Collection Account allocable to principal received with respect to the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances, and prior to any deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that were reimbursed or paid during the related Collection Period from amounts allocable to principal received with respect to the
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Mortgage Loans, as described by clause (II)(A) of the definition of Principal Distribution Amount and pursuant to subsection (iii) of Section 5.2(a)(II)), and then from other collections (including interest) on the Mortgage Loans for such Collection Period, and (b) if and to the extent that the amount of such a Nonrecoverable Advance (and Advance Interest thereon), together with all Nonrecoverable Advances (and Advance Interest thereon) theretofore reimbursed during such Collection Period, would exceed such principal on the Mortgage Loans for such Collection Period (and Advance Interest thereon), the Master Servicer (and the Trustee, if it made the relevant Advance) is hereby authorized (but shall not be construed to have any obligation whatsoever), if it elects at its sole option, to abstain from reimbursing itself (notwithstanding that it is entitled to such reimbursement) during that Collection Period for all or a portion of such Nonrecoverable Advance (and Advance Interest thereon), provided that the aggregate amount that is deferred with respect to all Nonrecoverable Advances (and Advance Interest thereon) with respect to all Mortgage Loans for any particular Collection Period is less than or equal to such excess described above in this clause (b). If the Master Servicer (or the Trustee) makes such an election at its sole option to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (and Advance Interest thereon), then such Nonrecoverable Advance (and Advance Interest thereon) or portion thereof shall continue to be fully reimbursable in any subsequent Collection Period to the same extent as set forth above. In connection with a potential election by the Master Servicer or the Trustee to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the Master Servicer (or the Trustee) shall further be authorized to wait for principal collections to be received before making its determination of whether to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof until the end of the Collection Period.
None of the Master Servicer or the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this subsection (II)(iv). The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this subsection (II)(iv) or to comply with the terms of this subsection (II)(iv) and the other provisions of this Agreement that apply once such an election, if any, has been made.
Any election by the Master Servicer (or the Trustee) to abstain from reimbursing itself for any Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with respect to any Collection Period shall not be construed to impose on the Master Servicer (or the Trustee) any obligation to make such an election (or any entitlement in favor of any Certificateholder or any other Person to such an election) with respect to any subsequent Collection Period or to constitute a waiver or limitation on the right of the Master Servicer (or the Trustee) to otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest thereon). Any election by the Master Servicer or the Trustee to abstain from reimbursing itself for any Nonrecoverable Advance or portion thereof with respect to any one or more Collection Periods shall not limit the accrual of Advance Interest on the unreimbursed portion of such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. None of the Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any
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holder of a Serviced B Note or Serviced Companion Loan for any such election that such party makes as contemplated by this subsection or for any losses, damages or other adverse economic or other effects that may arise from such an election. The foregoing statements in this paragraph shall not limit the generality of the statements made in the immediately preceding paragraph. Notwithstanding the foregoing, neither the Master Servicer nor the Trustee shall have the right to abstain from reimbursing itself for any Nonrecoverable Advance to the extent of the amount described in clause (I)(A) of the definition of Principal Distribution Amount. Notwithstanding anything to the contrary contained herein, neither the Master Servicer nor the Trustee may abstain from reimbursing itself for any particular Nonrecoverable Advance for a period in excess of twelve (12) months, and during any Subordinate Control Period and any Collective Consultation Period, neither the Master Servicer nor the Trustee may abstain from reimbursing itself for any particular Nonrecoverable Advance for a period in excess of six (6) months without the consent of the Controlling Class Representative.
(v) Reimbursement Rights of the Master Servicer, Special Servicer and Trustee Are Senior. Nothing in this Agreement shall be deemed to create in any Certificateholder a right to prior payment of distributions over the Master Servicer’s, the Special Servicer’s or the Trustee’s right to reimbursement for Advances plus Advance Interest (whether those that constitute Workout-Delayed Reimbursement Amounts, those that have been the subject of the Master Servicer’s election authorized in subsection (iv) or otherwise).
(b) On each Master Servicer Remittance Date, the Master Servicer shall withdraw from the Collection Account and apply as follows all Penalty Charges (subject to any allocation provision with respect to Penalty Charges in any related Intercreditor Agreement) and Allocable Modification Fees (in that order) received with respect to a Mortgage Loan or, unless otherwise required to be paid to the holder thereof pursuant to the related Intercreditor Agreement, a Serviced Companion Loan or Serviced B Note during the most recently ended Collection Period:
(i) first, to pay or reimburse the Master Servicer, the Special Servicer and/or the Trustee, as applicable, for all outstanding Nonrecoverable Advances (together with all unpaid Advance Interest on such Nonrecoverable Advances), all unpaid Advance Interest on any other Advances and any other outstanding Additional Trust Expenses, in each case, with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan;
(ii) second, as a reimbursement to the Trust of all Advances (and related Advance Interest) with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan previously determined to be Nonrecoverable Advances and previously reimbursed to the Master Servicer, the Special Servicer and/or Trustee, as applicable, from amounts (other than related Penalty Charges and Allocable Modification Fees) on deposit in the Collection Account (and such amounts will be retained or deposited in the Collection Account as recoveries of such Nonrecoverable Advances and related Advance Interest);
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(iii) third, as a reimbursement to the Trust of all other Additional Trust Expenses with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan previously paid from the Collection Account (and such amounts will be retained or deposited in the Collection Account as recoveries of such Additional Trust Expenses); and
(iv) fourth, to pay any remaining Penalty Charges and Allocable Modification Fees to the Master Servicer and/or the Special Servicer, as applicable, as compensation as set forth in either Section 8.10 or Section 9.11, as applicable.
(c) With respect to any Master Servicer Remittance Date, Scheduled Payments due in a Collection Period succeeding the Collection Period relating to such Master Servicer Remittance Date, Principal Prepayments received after the related Collection Period, or other amounts not distributable on the related Distribution Date, shall be held in the Collection Account (or a sub-account thereof) and shall be remitted to the Distribution Account on the applicable successive Master Servicer Remittance Date or Dates. The Master Servicer shall use commercially reasonable efforts to remit to the Distribution Account on any Master Servicer Remittance Date for a Collection Period any Balloon Payments received during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer Remittance Date. In connection with the deposit of any Balloon Payments to the Distribution Account in accordance with the immediately preceding sentence, the Master Servicer shall promptly notify the Certificate Administrator and the Certificate Administrator shall, if it has already reported anticipated distributions to the Depository, use commercially reasonable efforts to cause the Depository to make the revised distribution on a timely basis on such Distribution Date. Neither the Master Servicer nor the Certificate Administrator shall be liable or held responsible for any resulting delay or failure in the making of such distribution to Certificateholders. For purposes of the definitions of “Available Distribution Amount” and “Principal Distribution Amount,” any Balloon Payments that are received prior to the Master Servicer Remittance Date in any Collection Period but are includable in the distributions on the Distribution Date in such Collection Period as provided above, shall each be deemed to have been collected in the prior Collection Period.
Section 5.3 Distribution Account and Reserve Accounts.
(a) The Certificate Administrator, on behalf of the Trustee shall establish (with respect to clause (i) and clause (ii), on or prior to the Closing Date, and with respect to clause (iii) and clause (iv), on or prior to the date the Certificate Administrator determines is necessary) and maintain in its name, on behalf of the Trustee, (i) an account (the “Distribution Account”), to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “U.S. Bank National Association, as Certificate Administrator on behalf of U.S. Bank National Association, as Trustee, for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Distribution Account”, (ii) an account (the “Interest Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “U.S. Bank National Association, as Certificate Administrator on behalf of U.S. Bank National Association, as Trustee, for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through
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Certificates, Series 2015-UBS7, Interest Reserve Account”, (iii) an account (the “Excess Liquidation Proceeds Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “U.S. Bank National Association, as Certificate Administrator on behalf of U.S. Bank National Association, as Trustee, for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Excess Liquidation Proceeds Reserve Account”, and (iv) an account (the “TA Unused Fees Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “U.S. Bank National Association, as Certificate Administrator on behalf of U.S. Bank National Association, as Trustee, for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, TA Unused Fees Reserve Account”. The Distribution Account and the Reserve Accounts shall be Eligible Accounts. The Distribution Account and the Reserve Accounts shall be held separate and apart from and shall not be commingled with any other monies of or held by the Certificate Administrator, it being understood, however, that each Reserve Account shall be a subaccount of the Distribution Account. For the avoidance of doubt, the Distribution Account (other than any Excess Interest (whether now or hereafter arising) and the Excess Interest Sub-account, which shall be assets of the Grantor Trust) and each Reserve Account (including interest, if any, earned on the investment of funds in such accounts) shall be owned by REMIC III for federal income tax purposes.
Funds in the Distribution Account and the Reserve Accounts shall remain uninvested.
(b) The Certificate Administrator shall deposit into the Distribution Account, the Excess Liquidation Proceeds Reserve Account or the TA Unused Fees Reserve Account, as applicable, on the Business Day received all moneys remitted by the Master Servicer pursuant to this Agreement, including P&I Advances made by the Master Servicer and the Trustee, payments of Compensating Interest made by the Master Servicer and all Excess Liquidation Proceeds. The Certificate Administrator shall deposit amounts constituting collections of Excess Interest on the Mortgage Loans into the Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master Servicer shall have no duty to remit to the Distribution Account any amounts other than amounts held in the Collection Account and collected during the related Collection Period as provided in clauses (v) and (xii) of Section 5.2(a)(I) and the P&I Advance Amount.
Except with respect to the final Distribution Date, the Certificate Administrator, with respect to each Distribution Date occurring in January of each year (other than in any leap year and commencing in 2017) and February of each year (commencing in 2016), shall withdraw from the Distribution Account (to the extent of available funds) and deposit in the Interest Reserve Account in respect of each Interest Reserve Loan, an amount equal to one (1) day’s interest at the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date in the month in which such Distribution Date occurs, to the extent a Scheduled Payment or P&I Advance is timely made in respect thereof for such Due Date (all amounts so deposited in any January and/or February in respect of each Interest Reserve Loan, “Interest Reserve Amounts”).
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The Certificate Administrator shall make withdrawals from the Distribution Account (including the Excess Interest Sub-account), the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account in error and pay such amounts to the Persons entitled thereto;
(ii) in the case of the Distribution Account only, to pay any amounts payable to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee any fees, indemnification payments, other expenses or other amounts permitted to be paid hereunder and not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to Sections 6.5, 6.10 and/or 11.1, as applicable;
(iv) in the case of the Distribution Account and the TA Unused Fees Reserve Account only, to reimburse the Trust Advisor for any indemnification payments or expenses payable to the Trust Advisor hereunder solely from amounts otherwise allocable to the Principal Balance Certificates that are not Control Eligible Certificates or Actual Recoveries of Trust Advisor Expenses or TA Unused Fees, in each case pursuant to, and subject to the limitations set forth in, this Agreement; and
(v) to clear and terminate the Distribution Account and the Reserve Accounts pursuant to Section 11.2.
On each Master Servicer Remittance Date in March of every year commencing in March 2016 (and on any other Master Servicer Remittance Date related to the final Distribution Date), the Certificate Administrator shall withdraw all Interest Reserve Amounts then in the Interest Reserve Account and deposit such amounts into the Distribution Account.
Section 5.4 Certificate Administrator Reports.
(a) On or prior to each Distribution Date, based on information provided in monthly reports prepared by the Master Servicer and the Special Servicer and delivered to the Certificate Administrator by the Master Servicer (no later than 2:00 p.m., New York time on the Advance Report Date), the Certificate Administrator shall prepare and make available to the general public on the Certificate Administrator’s Website (or, upon written request from any Certificateholder or Certificate Owner, provide to the requesting party, by first class mail) (i) the Distribution Date Statement for such Distribution Date, and (ii) a report containing information regarding the Mortgage Loans as of the end of the related Collection Period, which report shall be presented in tabular format substantially similar to the format utilized in Exhibit K hereto, which report may be included as part of the Distribution Date Statement.
In addition, the Certificate Administrator, to the extent received by it, shall make available each month via the Certificate Administrator’s Website, to any Privileged Person (provided that the Final Prospectus, this Agreement, the Distribution Date Statements, the
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Mortgage Loan Purchase Agreements and the Exchange Act Filings will be made available to the general public, and provided, further, that, except as set forth in this Agreement with respect to the Special Servicer, the Controlling Class Representative or any Controlling Class Certificateholder, any Privileged Person that is also Borrower Party shall only be entitled to access documents made available to the general public), or in the case of item (vii) below, solely to Certificateholders and Certificate Owners, the following items (provided that with respect to items not prepared by the Certificate Administrator, the Certificate Administrator shall be required to make such items available only to the extent it has received such items in a readable, uploadable and unlocked electronic format (including, HTML, Word, Excel or searchable PDF)):
(i) the following “deal documents”:
(A) the Final Prospectus and the Private Placement Memorandum;
(B) this Agreement, each sub-servicing agreement delivered to the Certificate Administrator since the Closing Date (if any), the Mortgage Loan Purchase Agreements and any amendments and exhibits hereto or thereto; and
(C) the CREFC® Loan Setup File;
(ii) the Exchange Act Filings;
(iii) the following “periodic reports”:
(A) the Distribution Date Statement;
(B) CREFC® Reports, in each case, to the extent the Certificate Administrator has received or prepared such report or file (other than the CREFC® Loan Setup File); and
(C) any Trust Advisor Annual Reports;
(iv) the following “additional documents”:
(A) the summary of any Final Asset Status Report delivered to the Certificate Administrator pursuant to Section 10.5(a) of this Agreement; and
(B) any other Third Party Reports (or updates thereto) delivered to the Certificate Administrator in electronic format;
(v) the following “special notices”:
(A) all Special Notices;
(B) notice of any waiver, modification or amendment of any term of any Mortgage Loan;
(C) notice of final payment on the Certificates;
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(D) all notices of the occurrence of any Servicer Termination Events, in the case of the Master Servicer, or events described in Section 9.30(b), in the case of the Special Servicer, or Trust Advisor Termination Events, in the case of the Trust Advisor, received by the Certificate Administrator;
(E) notice of termination or resignation of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (and notice of acceptance of appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee);
(F) any and all Officer’s Certificates and other evidence delivered to the Certificate Administrator to support the Master Servicer’s, the Trustee’s or the Special Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(G) any notice of the termination of the Trust;
(H) all of the annual compliance statements and annual assessments as to compliance delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.9 and Section 13.10, respectively;
(I) all of the annual independent public accountants’ servicing reports caused to be delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.11;
(J) any reports delivered to the Certificate Administrator by the Trust Advisor in connection with its review of the Special Servicer’s Appraisal Reduction and net present value calculations pursuant to Section 10.5;
(K) any recommendation received by the Certificate Administrator from the Trust Advisor for the termination of the Special Servicer during any period when the Trust Advisor is entitled to make such a recommendation, and any direction of the Holders of Certificates evidencing the requisite percentage of Voting Rights to terminate the Special Servicer in response to such recommendation;
(L) notice of any request by the Holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer or notice of any request by the Holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Trust Advisor; and
(M) any other information delivered to the Certificate Administrator pursuant to any other section of this Agreement, which other section expressly provides for posting of such information on the Certificate Administrator’s Website; and
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(N) any notice of the commencement or cessation of a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period;
(vi) the Investor Q&A Forum; and
(vii) solely to Certificateholders and Certificate Owners, the Investor Registry.
Notwithstanding the foregoing, all Excluded Information shall be made available under a separate tab indicating that the information is excluded or otherwise restricted (and not under any of the tabs or headings described in items (i) through (vii) above) and made available to Privileged Persons other than Excluded Controlling Class Holders (unless loan-by-loan segregation is later performed by the Certificate Administrator in which case such access by an Excluded Controlling Class Holder shall only be prohibited with respect to the related Excluded Controlling Class Mortgage Loans).
Any Person that is a Borrower Party shall only be entitled to access (a) the Distribution Date Statements, and the following items made available to the general public: the Final Prospectus, this Agreement, the Mortgage Loan Purchase Agreements and the Exchange Act Filings on the Certificate Administrator’s Website, and (b) in the case of the Controlling Class Representative or a Controlling Class Certificateholder, if any such Person becomes an Excluded Controlling Class Holder, upon delivery to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator and the Trustee in physical form of an investor certification and notice substantially in the forms of Exhibit I-1D and Exhibit I-1E, respectively, and upon delivery to the Certificate Administrator in physical form of a notice substantially in the form of Exhibit I-1F, which shall include each user identification assigned to such Excluded Controlling Class Holder with respect to the Certificate Administrator’s Website, all information (other than Excluded Information) available on the Certificate Administrator’s Website (unless loan-by-loan segregation is later performed by the Certificate Administrator in which case such access by an Excluded Controlling Class Holder shall only be prohibited with respect to the related Excluded Controlling Class Mortgage Loans).
In the case of the Controlling Class Representative or a Controlling Class Certificateholder that is not an Excluded Controlling Class Holder, upon delivery of an investor certification substantially in the form of Exhibit I-1B hereto, such Controlling Class Representative or Controlling Class Certificateholder shall be entitled to access the applicable information on the Certificate Administrator’s Website. The Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator and the Trustee may each rely on (i) an investor certification in the form of Exhibit I-1B hereto from the Controlling Class Representative or a Controlling Class Certificateholder to the effect that such Person is not an Excluded Controlling Class Holder, (ii) an investor certification in the form of Exhibit I-1E hereto from the Controlling Class Representative or a Controlling Class Certificateholder to the effect that such Person is an Excluded Controlling Class Holder with respect to one or more Excluded Controlling Class Mortgage Loan(s) and (iii) any other Investor Certification, Exhibit I-1E, Exhibit I-1F and Exhibit I-1G. In the event the Controlling Class Representative or a Controlling Class Certificateholder becomes an Excluded Controlling Class Holder, such party shall promptly notify each of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator and the Trustee in writing substantially in the form of Exhibit I-1E that
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such party is an Excluded Controlling Class Holder and identify the Excluded Controlling Class Mortgage Loan(s) and thereafter shall not be entitled to any Excluded Information solely related to such Excluded Controlling Class Mortgage Loan(s) and made available on the Certificate Administrator’s Website. With respect to any Excluded Information, each of the Master Servicer, the Special Servicer and the Trust Advisor shall mark or label such information as “Excluded Information” prior to delivery to the Certificate Administrator, and the Certificate Administrator shall segregate on the Certificate Administrator’s Website such Excluded Information (and may be segregated on loan-by-loan basis) from information relating to other Mortgage Loans. Notwithstanding anything herein to the contrary, each of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee and the Certificate Administrator shall be entitled to conclusively assume that the Controlling Class Representative and all beneficial owners of the Certificates of the Controlling Class are not Excluded Controlling Class Holders except to the extent that the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee or the Certificate Administrator, as applicable, has received such notice from the Controlling Class Representative or a Controlling Class Certificateholder that it has become an Excluded Controlling Class Holder. None of the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Administrator shall be liable for any communication to the Controlling Class Representative or Controlling Class Certificateholder or disclosure of Excluded Information if the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Administrator, as applicable, did not receive prior written notice that the related Mortgage Loan is an Excluded Controlling Class Mortgage Loan (including, in the case of any Excluded Information delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website and/or any failure to label any such Excluded Information provided to the Certificate Administrator).
Each of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee and the Certificate Administrator shall be entitled to conclusively rely on (i) any written notice from the Controlling Class Representative or a Controlling Class Certificateholder that it is no longer an Excluded Controlling Class Holder and (ii) any certification delivered by the Controlling Class Representative or a Controlling Class Certificateholder, as applicable, substantially in the form of Exhibit I1-B that such Person is no longer an Excluded Controlling Class Holder. To the extent the Controlling Class Representative or a Controlling Class Certificateholder receives access pursuant to this Agreement to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, such Controlling Class Representative or Controlling Class Certificateholder shall be deemed to have agreed that it (i) will not directly or indirectly provide any information related to the Excluded Controlling Class Mortgage Loan to the related Borrower or to any Excluded Controlling Class Holder or (A) any employees or personnel of such Controlling Class Representative or Controlling Class Certificateholder or any Affiliate involved in the management of any investment in the related Borrower or the related Mortgaged Property or (B) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.
The Certificate Administrator makes no representations or warranties as to the accuracy or completeness of such information and assumes no responsibility therefor. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by the Certificate Administrator for which it is not the original source. In connection
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with providing access to the Certificate Administrator’s Website, the Certificate Administrator may require registration and acceptance of a disclaimer that the Certificate Administrator will make no representations or warranties as to the accuracy or completeness of information provided by it that was based, in whole or in part, on information received from third parties, and will assume no responsibility for them. The Certificate Administrator shall not be liable for the dissemination of information in accordance with this Agreement. Notwithstanding anything herein to the contrary, the Certificate Administrator, the Master Servicer and the Special Servicer shall not be liable for any Excluded Information to the extent such information was included in the Asset Status Report or the Final Asset Status Report delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website and not properly identified as Excluded Information.
The Certificate Administrator, the Master Servicer and the Special Servicer shall have no liability for access by an Excluded Controlling Class Holder, via the Certificate Administrator’s Website, of any information with respect to which such Excluded Controlling Class Holder is prohibited from accessing pursuant to this Agreement, if such Excluded Controlling Class Holder provided an Investor Certification but did not indicate it was a Borrower Party.
The Certificate Administrator may provide such information through means other than (and in lieu of) the Certificate Administrator’s Website; provided that (i) the Depositor shall have consented to such alternative means and (ii) Certificateholders and the holders of Serviced Companion Loans (but only for purposes of any such holder receiving information regarding its Serviced Companion Loan) shall have received notice of such alternative means (which notice may be given via the Certificate Administrator’s Website).
Any Certificateholder or Certificate Owner that is a Mortgagor, a Manager, an Affiliate of a Mortgagor or a Manager, or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing, shall be entitled to access only the Final Prospectus, the Distribution Date Statements, this Agreement and the Exchange Act Reports on the Certificate Administrator’s Website. The provisions in this section shall not limit the Master Servicer’s ability to make accessible certain information (other than Privileged Information) regarding the Mortgage Loans at a website maintained by the Master Servicer. The Certificate Administrator shall require an Investor Certification from any Certificateholder, Certificate Owner or prospective transferee of a Certificate or interest therein that requests access to any Non-Public Information.
(b) Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate a statement containing the information as to the applicable Class set forth in clauses (a), (b), (j) and (s) of the definition of “Distribution Date Statement” aggregated for such calendar year or applicable portion thereof during which such person was a Certificateholder, together with such other information as the Certificate Administrator determines to be necessary to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the
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Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.
(c) The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where Certificateholders, Certificate Owners and prospective purchasers of Certificates may (i)(A) submit questions to the Certificate Administrator relating to the Distribution Date Statement, (B) submit questions to the Master Servicer or the Special Servicer, as applicable, relating to the servicing reports prepared by that party and being made available pursuant to this Section 5.4, the Mortgage Loans, the A/B Whole Loans, the Loan Pairs or the Mortgaged Properties and (C) submit questions to the Trust Advisor relating to any Trust Advisor Annual Reports or actions by the Special Servicer referenced in any Trust Advisor Annual Report (collectively, “Inquiries”), and (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the Trust Advisor, the Master Servicer or the Special Servicer, the Certificate Administrator shall forward the Inquiry to the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of an Inquiry, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Trust Advisor, the Master Servicer or Special Servicer shall be by email to the Certificate Administrator. The Certificate Administrator shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry with the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) any Inquiry is not of a type described above, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, this Agreement (including the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement) or the applicable Mortgage Loan documents, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, or (v) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the Trust Advisor, the Master Servicer or the Special Servicer, shall promptly notify the Certificate Administrator. The Certificate Administrator shall notify the Person who submitted such Inquiry if the Inquiry will not be answered. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature, and no party shall post or otherwise disclose direct communications with the Controlling Class Representative or a Loan-Specific Directing Holder as part of its response to any Inquiries. The Investor Q&A Forum will not reflect questions, answers and other communications which are not submitted via the Certificate Administrator’s Website. Answers posted on the Investor Q&A Forum shall be attributable only to the respondent, and no other Person will have any responsibility or liability for the content of any such information, nor will any other Person certify as to the accuracy of any of the information posted in the Investor Q&A Forum that is based, in whole or in part, on information received from third parties. Rating Agencies and other NRSROs that provide an NRSRO Certification may have access to the
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Investor Q&A Forum but will not have a means to submit questions on the Investor Q&A Forum. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Q&A Forum.
(d) The Certificate Administrator shall make available to any Certificateholder and Certificate Owner (other than a Manager, an Affiliate of a Mortgagor or a Manager, or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing), the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Certificate Owners can register and thereafter obtain information with respect to any other Certificateholder or Certificate Owner that has so registered. Any person registering to use the Investor Registry will be required to certify that (a) it is a Certificateholder or a Certificate Owner and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such certification to other registered Certificateholders and registered Certificate Owners. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Certificate Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry. Rating Agencies and other NRSROs shall not have access to the Investor Registry.
(e) Notwithstanding the foregoing, in no event shall any provision of this Agreement be construed to require the Master Servicer, the Special Servicer or the Certificate Administrator to produce any ad hoc or non-standard written reports (in addition to the CREFC® Reports, inspection reports and other specific periodic reports otherwise required). If the Master Servicer, the Special Servicer or the Certificate Administrator elects to provide any ad hoc or non-standard reports, it may require the Person requesting such report to pay a reasonable fee to cover the costs of the preparation thereof.
(f) Upon filing with the Internal Revenue Service, the Certificate Administrator shall furnish to the Holders of the Class R Certificates the Form 1066 for each REMIC Pool and shall furnish their respective Schedules Q thereto at the times required by the Code or the Internal Revenue Service, and shall provide from time to time such information and computations with respect to the entries on such forms as any Holder of the Class R Certificates may reasonably request.
(g) The specification of information to be furnished by the Certificate Administrator in this Section 5.4 (and any other terms of this Agreement requiring or calling for delivery or reporting of information by the Certificate Administrator to Certificateholders and Certificate Owners) shall not limit the Certificate Administrator in furnishing, and the Certificate
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Administrator is hereby authorized to furnish, to any Privileged Person any other information (such other information, collectively, “Additional Information”) with respect to the Mortgage Loans, the A/B Whole Loans, the Loan Pairs, the Mortgaged Properties or the Trust as may be provided to it by the Depositor, the Master Servicer or the Special Servicer or gathered by it in any investigation or other manner from time to time, provided that (A) while there exists any Servicer Termination Event, any such Additional Information shall only be furnished with the consent or at the request of the Depositor (to the extent such information is requested by a Certifying Certificateholder), (B) the Certificate Administrator shall be entitled to indicate the source of all information furnished by it, and the Certificate Administrator may affix thereto any disclaimer it deems appropriate in its sole discretion (together with any warnings as to the confidential nature and/or the uses of such information as it may, in its sole discretion, determine appropriate), (C) the Certificate Administrator may notify any Privileged Person of the availability of any such information in any manner as it, in its sole discretion, may determine, (D) the Certificate Administrator shall be entitled (but not obligated) to require payment from each recipient of a reasonable fee for, and its out of pocket expenses incurred in connection with, the collection, assembly, reproduction or delivery of any such Additional Information, (E) the Certificate Administrator shall be entitled to distribute or make available such Additional Information in accordance with such reasonable rules and procedures as it may deem necessary or appropriate (which may include the requirement that an agreement that provides such information shall be used solely for purposes of evaluating the investment characteristics or valuation of the Certificates be executed by the recipient, if and to the extent the Certificate Administrator deems the same to be necessary or appropriate), and (F) the delivery of Additional Information shall in no event violate the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement. Nothing herein shall be construed to impose upon the Certificate Administrator any obligation or duty to furnish or distribute any Additional Information to any Person in any instance, and the Certificate Administrator shall neither have any liability for furnishing nor for refraining from furnishing Additional Information in any instance. The Certificate Administrator shall be entitled (but not required) to request and receive direction from the Depositor as to the manner of delivery of any such Additional Information, if and to the extent the Certificate Administrator deems necessary or advisable, and to require that any consent, direction or request given to it pursuant to this Section be made in writing. The Certificate Administrator shall not be obligated to determine whether any information submitted or delivered to it constitutes Privileged Information, and shall not have any liability for posting to the Certificate Administrator’s Website any Privileged Information received from a third party in accordance with this Agreement, unless such Privileged Information is clearly identified as such to the Certificate Administrator upon delivery thereto. The Master Servicer, the Special Servicer and the Trust Advisor shall not deliver any Privileged Information to the Certificate Administrator.
(h) The Depositor hereby authorizes the Certificate Administrator to make available to the Financial Market Publishers or such other vendor chosen by the Depositor upon delivery by such vendor to the Certificate Administrator of a certification in the form of Exhibit M hereto, all the Distribution Date Statements, CREFC® Reports and supplemental notices delivered or made available pursuant to this Section 5.4 to Privileged Persons.
(i) Subject to Section 8.15, upon advance written request, if required by federal regulation, of any Certificateholder (or holder of a Serviced Companion Loan or Serviced
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B Note) that is a savings association, bank, or insurance company, the Certificate Administrator shall provide (to the extent in its possession) to each such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) such reports and access to non-privileged information and documentation regarding the Mortgage Loans and the Certificates as such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) may reasonably deem necessary to comply with applicable regulations of the Office of Thrift Supervision or successor or other regulatory authorities with respect to investment in the Certificates; provided that the Certificate Administrator shall be entitled to be reimbursed by such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) for the Certificate Administrator’s actual expenses incurred in providing such reports and access. The holder of a Serviced B Note shall be entitled to receive information and documentation only with respect to its related A/B Whole Loan, and the holder of a Serviced Companion Loan shall be entitled to receive information and documentation only with respect to its related Loan Pair, pursuant hereto.
(j) Any party hereto may at any time request from the Certificate Administrator written confirmation of whether there existed a Senior Consultation Period or Collective Consultation Period during the previous calendar year, and the Certificate Administrator shall deliver such confirmation to such party within ten (10) days of such request. In addition, the Certificate Administrator shall notify the Trust Advisor, the Master Servicer and the Special Servicer within ten (10) days of the commencement or cessation of any Senior Consultation Period, Collective Consultation Period or Subordinate Control Period.
(k) Upon request and delivery by CREFC® of a certification in the form of Exhibit M hereto, the Certificate Administrator shall make available to CREFC®, with respect to any Distribution Date, the related Distribution Date Statement and CREFC® Investor Reporting Package.
Section 5.5 Certificate Administrator Tax Reports. The Certificate Administrator shall perform all reporting and other tax compliance duties that are the responsibility of each REMIC Pool and the Grantor Trust under the Code, REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority. Consistent with this Agreement, the Certificate Administrator shall provide or cause to be provided (i) to the United States Treasury or other Persons (including, but not limited to, the Transferor of a Class R Certificate to a Disqualified Organization or to an agent that has acquired a Class R Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class R Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or REMIC Provisions; in the case of (i), subject to reimbursement of expenses relating thereto in accordance with Section 7.12. The Master Servicer shall on a timely basis provide the Certificate Administrator with such information concerning the Mortgage Loans as is necessary for the preparation of the tax or information returns or receipts of each REMIC Pool and the Grantor Trust as the Certificate Administrator may reasonably request from time to time. The Special Servicer is required to provide to the Master Servicer all information in its possession with respect to the Specially Serviced Mortgage Loans in order for the Master Servicer to comply with its obligations under this Section 5.5. The Certificate Administrator
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shall be entitled to conclusively rely on any such information provided to it by the Master Servicer or the Special Servicer and shall have no obligation to verify any such information.
Section 5.6 Access to Certain Information.
(a) The Certificate Administrator and the Custodian shall afford to any Privileged Person access to any documentation (other than Privileged Information identified as such to the Certificate Administrator upon delivery thereto) regarding the Mortgage Loans or the other assets of the Trust that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.
(b) The Certificate Administrator (or, in the case of item (viii) below, the Custodian) shall maintain at its offices (and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available) for review by any Privileged Person (subject to Section 5.7 in the case of a Rating Agency) originals and/or copies (in paper or electronic form) of the following items (to the extent such items were prepared by or delivered to the Certificate Administrator and do not constitute Privileged Information identified as such to the Certificate Administrator upon delivery thereto):
(i) the Final Prospectus and the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;
(ii) this Agreement, each sub-servicing agreement delivered to the Certificate Administrator since the Closing Date (if any), the Mortgage Loan Purchase Agreements and any amendments and exhibits hereto or thereto;
(iii) all Distribution Date Statements and all CREFC® Reports actually delivered or otherwise made available to Certificateholders pursuant to Section 5.4 of this Agreement since the Closing Date;
(iv) all annual statements of compliance and annual assessments as to compliance delivered to the Certificate Administrator since the Closing Date pursuant to Sections 13.9 and 13.10, respectively;
(v) all annual independent public accountants’ servicing reports caused to be delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.11;
(vi) the most recent inspection report prepared by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator in respect of each Mortgaged Property pursuant to Section 8.17 or Section 9.3 of this Agreement;
(vii) any and all notices and reports delivered to the Certificate Administrator with respect to any Mortgaged Property as to which the environmental testing
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contemplated by Section 9.12(c) of this Agreement revealed that none of the conditions set forth in clauses (i), (ii) and (iii) thereof was satisfied;
(viii) the Mortgage File, including any and all modifications, waivers and amendments of the terms of the Mortgage Loans (or the A/B Whole Loans or Loan Pairs) entered into or consented to by the Master Servicer or Special Servicer and delivered to the Certificate Administrator pursuant to Section 8.18 or Section 9.5 of this Agreement;
(ix) the annual, quarterly and monthly operating statements, if any, collected by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator for each Mortgaged Property, together with the other information specified in Section 8.14 of this Agreement;
(x) any and all Officer’s Certificates and other evidence delivered to the Certificate Administrator to support the Master Servicer’s, the Special Servicer’s or the Trustee’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(xi) notice of termination or resignation of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (and appointments of successors thereto);
(xii) all Special Notices;
(xiii) any Third Party Reports (or updates of Third Party Reports) delivered to the Certificate Administrator;
(xiv) each of the other documents made available by the Certificate Administrator under Section 5.4(a) on the Certificate Administrator’s Website and not otherwise listed in this Section 5.6(b); and
(xv) any other information in the possession of the Certificate Administrator that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act.
The Certificate Administrator shall provide, or cause to be provided, copies of any and all of the foregoing items upon reasonable written request of any of the parties set forth in the previous sentence.
Access shall be provided to Excluded Information on the Certificate Administrator’s Website in accordance with the procedures and limitations set forth in Section 5.4 and Section 8.31.
None of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor or the Trustee shall be liable for its dissemination of information in accordance with the terms of this Agreement or for others providing or disseminating information in violation of the terms of this Agreement.
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Section 5.7 Exchange Act Rule 17g-5 Procedures.
(a) Except as otherwise expressly and specifically provided in this Agreement or as required by law, none of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Certificate Registrar, the Trustee or the Custodian shall provide any information relevant to the Rating Agencies’ surveillance of the Certificates or the Mortgage Loans directly to, or communicate with, either orally or in writing, any Rating Agency regarding the Certificates or the Mortgage Loans, including, but not limited to, providing responses to inquiries from a Rating Agency regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates. To the extent that a Rating Agency makes an inquiry or initiates communications with any such party regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates, all responses to such inquiries or communications from such Rating Agency shall be made in writing by the responding party and delivered to the 17g-5 Information Provider electronically as provided in Section 5.7(g), which written response the 17g-5 Information Provider shall post to the 17g-5 Information Provider’s Website within two (2) Business Days of receipt; provided that the foregoing shall not apply to Inquiries and responses thereto submitted and answered pursuant to the “Rating Agency Q&A Forum and Document Request Tool”.
(b) To the extent that any party to this Agreement is required to provide any information to, or communicate with, any Rating Agency in accordance with its obligations under this Agreement or applicable law, such party shall provide such information or communication to the 17g-5 Information Provider electronically as provided in Section 5.7(g), and the 17g-5 Information Provider shall upload such information or communication to the 17g-5 Information Provider’s Website within two (2) Business Days of receipt. The foregoing shall include any Rating Agency Communication provided pursuant to this Agreement. The 17g-5 Information Provider shall notify each other party to this Agreement in writing of any change in the identity or contact information of the 17g-5 Information Provider. Any Rating Agency Confirmation request shall be made in accordance with Section 1.7.
In connection with the delivery by the Master Servicer or Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify (which may include automatic electronic notifications) the Master Servicer or Special Servicer when such information, report, notice or document has been posted. The Master Servicer or Special Servicer, as applicable, may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency following the earlier of (a) receipt of such notice from the 17g-5 Information Provider and (b) two (2) Business Days following delivery to the 17g-5 Information Provider.
(c) Each 17g-5 Indemnifying Party hereby expressly agrees to indemnify and hold harmless the Depositor, the Sellers, the Underwriters, the Initial Purchasers and their respective Affiliates, directors, officers, employees, members, managers and agents, and the Trust (each, for purposes of this Section 5.7(c), a “17g-5 Indemnified Party”), from and against any and all losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses), to which any such 17g-5 Indemnified Party may become subject, under the Securities Act, the Exchange Act, by contract
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or otherwise, insofar as such losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses) arise out of or are based upon (i) such 17g-5 Indemnifying Party’s breach of Section 5.7(a), Section 5.7(b), Section 5.7(f) or Section 1.7 (it being acknowledged that Section 5.7(f) and Section 1.7 do not apply to the Trust Advisor) or any other provision of this Agreement relating to the delivery of any information or communication for posting on, or the posting of any information or communication to, the 17g-5 Information Provider’s Website, or (ii) if the 17g-5 Indemnifying Party is the 17g-5 Information Provider, any negligence, willful misconduct or bad faith on its part in connection with establishing, posting information and communications to, granting access to, and otherwise performing its obligations and duties hereunder with respect to, the 17g-5 Information Provider’s Website, or (iii) a determination by any Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Exchange Act Rule 17g-5(a)(3), to the extent caused by any such breach referred to in clause (i) above by, or any negligence, willful misconduct or bad faith referred to in clause (ii) above on the part of, the applicable 17g-5 Indemnifying Party, and will reimburse such 17g-5 Indemnified Party for any legal or other expenses reasonably incurred by such 17g-5 Indemnified Party in connection with investigating or defending any such action or claim, as such expenses are incurred.
(d) None of the Depositor, the Sellers, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar, the Trustee, the Certificate Administrator (if it is not also the 17g-5 Information Provider) or the Custodian shall have any liability for (i) the 17g-5 Information Provider’s failure to post information provided by the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar, the Trustee, the Certificate Administrator (if it is not also the 17g-5 Information Provider) or the Custodian in accordance with the terms of this Agreement, or (ii) any malfunction or disabling of the 17g-5 Information Provider’s Website.
(e) None of the foregoing restrictions in this Section 5.7 prohibit or restrict oral or written communications, or providing information, between the Master Servicer, the Special Servicer or the Trust Advisor, on the one hand, and any Rating Agency, on the other hand, with regard to (i) such Rating Agency’s review of the ratings it assigns to the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, (ii) such Rating Agency’s approval of the Master Servicer or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer, or the Trust Advisor as an operating advisor or (iii) such Rating Agency’s evaluation of the Master Servicer’s or the Special Servicer’s, as applicable, servicing operations in general, or the Trust Advisor’s operations in general; provided that the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans to such Rating Agency in connection with such review and evaluation by such Rating Agency unless (x) Mortgagor, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on to the 17g-5 Information Provider’s Website; or (z) the Rating Agency has confirmed in writing to the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, that it does not intend to use such information in undertaking credit rating surveillance for any Class of Certificates (and the party providing such information to a Rating Agency shall, upon request, certify to the Depositor that it received the confirmation described in this clause or provide the Depositor with a copy of the
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confirmation; provided, however, that the Rating Agencies may use information delivered in reliance on the certification provided in this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement or any other confidentiality agreement to which such rating agency is subject) or comprised of information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website the such Rating Agency has access to) (in each case, subject to any agreement governing the use of such information, including any engagement letter with the Depositor or any other applicable depositor).
(f) The 17g-5 Information Provider shall, at all times that any Certificates are outstanding and rated by a Rating Agency, maintain the 17g-5 Information Provider’s Website, and grant access thereto to the Rating Agencies and the other NRSROs, in accordance with this Agreement.
(g) The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website and make available solely to the Rating Agencies and other NRSROs the following items, to the extent such items are delivered to it in an electronic document format suitable for website posting (and the parties required to deliver the following information to the 17g-5 Information Provider agree to do so) via electronic mail at 17g5informationprovider@usbank.com, specifically with a subject reference of “BACM 2015-UBS7” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:
(i) any and all Officer’s Certificates and other evidence delivered to the 17g-5 Information Provider to support the Master Servicer’s, the Trustee’s or the Special Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance and notices of a determination to reimburse Nonrecoverable Advances from sources other than principal collections;
(ii) any Final Asset Status Report delivered by the Special Servicer pursuant to Section 9.32(h);
(iii) any Third Party Reports delivered to the 17g-5 Information Provider;
(iv) all of the annual compliance statements and annual assessments as to compliance delivered to the 17g-5 Information Provider since the Closing Date pursuant to Section 13.9 and Section 13.10, respectively;
(v) all of the annual independent public accountants’ servicing reports caused to be delivered to the 17g-5 Information Provider since the Closing Date pursuant to Section 13.11;
(vi) copies of any Rating Agency Communications that are delivered to the 17g-5 Information Provider;
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(vii) copies of any questions or requests submitted by the Rating Agencies directed toward the Master Servicer, Special Servicer, Trust Advisor, Custodian, Certificate Administrator or Trustee, and the responses thereto;
(viii) all notices of termination, resignation or assignment of rights and duties of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator or the Trustee) received by the 17g-5 Information Provider;
(ix) all notices of the occurrence of a Servicer Termination Event, in the case of the Master Servicer, events described in Section 9.30(b), in the case of the Special Servicer, or events described in Section 10.12, in the case of the Trust Advisor, received by the 17g-5 Information Provider;
(x) all notices of merger or consolidation of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee) received by the 17g-5 Information Provider;
(xi) any Trust Advisor Annual Reports received by the 17g-5 Information Provider;
(xii) any notice of any amendment of this Agreement pursuant to Section 14.3;
(xiii) any notice or other information provided to any Rating Agency pursuant to Section 1.7;
(xiv) any Initial Certification, Final Certification and updated schedule of exceptions received by the 17g-5 Information Provider pursuant to Section 2.2;
(xv) notice of any Material Breach or Material Document Defect, and notice of any repurchase or replacement of a Mortgage Loan in connection therewith, received by the 17g-5 Information Provider pursuant to Section 2.3;
(xvi) any requests for a Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 1.7;
(xvii) any other information delivered to the 17g-5 Information Provider pursuant to this Agreement, including pursuant to Section 5.7(a) and Section 5.7(b); and
(xviii) the Rating Agency Q&A Forum and Document Request Tool.
The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website, a link to which shall be provided on Intralinks’ website at www.intralinks.com or such other website as the Depositor may notify the parties hereto in writing. Information shall be posted to the 17g-5 Information Provider’s
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Website within two (2) Business Days of receipt. The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. If any information is delivered or posted in error, the 17g-5 Information Provider may remove it from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the 17g-5 Information Provider’s Website. Access shall be provided by the 17g-5 Information Provider to the Rating Agencies and other NRSROs upon receipt of an NRSRO Certification (which certification may be submitted electronically via the 17g-5 Information Provider’s Website). Questions regarding delivery of information to the 17g-5 Information Provider may be directed to (312) 332-7464 and 17g5informationprovider@usbank.com (or to such other telephone number or email address as the 17g-5 Information Provider may designate).
Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 5.7. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website which Rating Agency requested such additional information.
The 17g-5 Information Provider shall provide a mechanism to notify each Rating Agency or other NRSRO each time the 17g-5 Information Provider posts an additional document to the 17g-5 Information Provider’s Website.
The 17g-5 Information Provider shall make available, only to the Rating Agencies and other NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where Rating Agencies and other NRSROs may (i) submit questions to the Certificate Administrator relating to the Distribution Date Statement, or submit questions to the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to this Section 5.7, the Mortgage Loans, the A/B Whole Loans, Loan Pairs or the Mortgaged Properties (“Rating Agency Inquiries”), (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the answers thereto and (iii) submit requests for loan-level reports and information. Upon receipt of a Rating Agency Inquiry for the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, the 17g-5 Information Provider shall forward such Rating Agency Inquiry to the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of a Rating Agency Inquiry, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply to the Rating Agency Inquiry, which reply of the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer shall be by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period, and in any event within two (2) Business Days, following preparation or receipt of such answer, as the case may be) such Rating Agency Inquiry and the related answer (or reports, as applicable) to the
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17g-5 Information Provider’s Website. Any report posted by the 17g-5 Information Provider in response to a request may be posted on a page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement (including the confidentiality provisions and restrictions on the release of Privileged Information contained in this Agreement) or the applicable Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or (iii)(A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator and the Trust Advisor) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator the Trust Advisor, Master Servicer or Special Servicer, as applicable, under this Agreement, then it shall not be required to answer such Rating Agency Inquiry and, in the case of the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, shall promptly notify the 17g-5 Information Provider, and the 17g-5 Information Provider shall post (within two (2) Business Days of its receipt of such notice) such Rating Agency Inquiry on the Rating Agency Q&A Forum and Document Request Tool together with the reason such Rating Agency Inquiry was not answered. Answers posted on the Rating Agency Q&A Forum and Document Request Tool shall be attributable only to the respondent, and no other party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool shall not reflect questions, answers and other communications between the 17g-5 Information Provider and any other Person that are not submitted via the 17g-5 Information Provider’s Website.
In connection with providing access to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The 17g-5 Information Provider shall not be liable for the dissemination of information in accordance with the terms of this Agreement, makes no representations or warranties as to the accuracy or completeness of such information being made available, and assumes no responsibility for such information. The 17g-5 Information Provider shall not be liable for its failure to make any information available to the Rating Agencies or other NRSROs unless such information was delivered to the 17g-5 Information Provider at the email address set forth herein, with a subject heading of “BACM 2015-UBS7” and sufficient detail to indicate that such information is required to be posted on the 17g-5 Information Provider’s Website.
(h) The costs and expenses of compliance with this Section by any party hereto shall not be Additional Trust Expenses.
(i) The 17g-5 Information Provider shall not be obligated to determine whether any information submitted or delivered to it constitutes Privileged Information, and shall
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not have any liability for posting to the 17g-5 Information Provider’s Website any Privileged Information received from a third party in accordance with this Agreement, unless such Privileged Information is clearly identified as such to the 17g-5 Information Provider upon delivery thereto. The Master Servicer, the Special Servicer and the Trust Advisor shall not deliver any Privileged Information to the 17g-5 Information Provider.
(j) With respect to each Non-Serviced Mortgage Loan, each of the Master Servicer, the Certificate Administrator and the Trustee shall provide to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website, promptly upon receipt from a Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Certificate Administrator or Non-Serviced Mortgage Loan Trustee, all reports, statements, documents, notices and other information it receives in respect of such Non-Serviced Mortgage Loan that would otherwise have been required to be submitted to the 17g-5 Information Provider under this Agreement for posting had such Non-Serviced Mortgage Loan been a Serviced Mortgage Loan. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website all such information it receives in accordance with this Agreement.
(k) It is hereby acknowledged and agreed that none of the Depositor, any other party to this Agreement or any Seller has contracted with the Controlling Class Representative or any Certificateholder or Certificate Owner to provide information to any Rating Agency for the purpose of undertaking credit rating surveillance on the Certificates. For the avoidance of doubt, nothing contained in the foregoing sentence shall be deemed to prohibit, restrict or otherwise limit the ability of the Controlling Class Representative, any Certificateholder and/or any Certificate Owner, as applicable, in each case, of their own accord and without any express or implicit authorization of or direction from the Depositor, any other party to this Agreement or any Seller, from communicating or transacting with any Rating Agency with respect to this transaction or otherwise.
(l) If any of the parties to this Agreement receives a Form ABS Due Diligence-15E from any party in connection with any third-party due diligence services such party may have provided with respect to the Mortgage Loans (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or from another party to this Agreement, promptly upon receipt thereof. Neither the Master Servicer nor the Special Servicer shall be required to make any determination as to whether any service provided by a third party requires obtaining a Form ABS Due Diligence-15E.
ARTICLE
VI
DISTRIBUTIONS
Section 6.1 Distributions Generally. Subject to Section 11.2(a), with respect to the final distribution on the Certificates, on each Distribution Date, the Certificate Administrator shall (1) first, withdraw from the Distribution Account and pay to the Trustee and Custodian any
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unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then, to the Certificate Administrator, any unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then at the written direction of the Master Servicer, withdraw from the Distribution Account and pay to the Master Servicer and Special Servicer any unpaid servicing compensation or other amounts currently required to be paid pursuant to this Agreement (to the extent not previously retained or withdrawn by the Master Servicer from the Collection Account), and (2) second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder; provided, that (i) remittances to the Certificate Administrator shall be made by wire transfer of immediately available funds to the Distribution Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account; and (ii) the final distribution in respect of any Certificate shall be made only upon presentation and surrender of such Certificate at such location specified by the Certificate Administrator in a notice delivered to Certificateholders pursuant to Section 11.2(a). If any payment required to be made on the Certificates is to be made on a day that is not a Business Day, then such payment shall be made on the next succeeding Business Day without compensation for such delay. All distributions or allocations made with respect to Holders of Certificates of a particular Class on each Distribution Date shall be made or allocated among the outstanding Certificates of such Class in proportion to their respective initial Certificate Balances, in the case of a Class of Principal Balance Certificates, or initial Notional Amounts, in the case of a Class of Class X Certificates, or Percentage Interests, in the case of the Class V and Class R Certificates.
Section 6.2 Compliance with Withholding Requirements. Notwithstanding any other provision of this Agreement to the contrary, the Certificate Administrator on behalf of the Trustee shall comply with all federal withholding requirements with respect to payments to Certificateholders and other payees of interest, original issue discount, or other amounts that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for any such withholding and any amount so withheld shall be regarded as distributed to the related Certificateholders or payees for purposes of this Agreement. If the Certificate Administrator withholds any amount from payments made to any Certificateholder or payee pursuant to federal withholding requirements, the Certificate Administrator shall indicate to such Certificateholder or payee the amount withheld. The Trustee shall not be responsible for the Certificate Administrator’s failure to comply with any withholding requirements.
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Section 6.3 REMIC I.
(a) On each Distribution Date, the Certificate Administrator shall be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount attributable to interest (other than Excess Interest) collected or advanced or deemed collected or advanced on or with respect to, and any Excess Liquidation Proceeds attributable to, each Mortgage Loan (including each REO Mortgage Loan), to pay any and all Distributable Interest with respect to the Corresponding REMIC I Regular Interest for such Distribution Date;
(ii) from the portion of the Available Distribution Amount attributable to principal collected or advanced or deemed collected or advanced on or with respect to each Mortgage Loan (including each REO Mortgage Loan), to pay such principal with respect to the Corresponding REMIC I Regular Interest, until the REMIC I Principal Amount thereof is reduced to zero; and
(iii) from any remaining amount of the Available Distribution Amount (other than Excess Interest) and any remaining Excess Liquidation Proceeds with respect to each Mortgage Loan (including each REO Mortgage Loan), to reimburse, first, any unreimbursed Collateral Support Deficits previously allocated to the Corresponding REMIC I Regular Interest, together with unpaid interest thereon at the related REMIC I Net Mortgage Rate (in each case from the date of allocation), and then, any unreimbursed Collateral Support Deficits allocated to any other REMIC I Regular Interest, together with unpaid interest thereon at the related REMIC I Net Mortgage Rate (in each case from the date of allocation).
(b) At such time as all Distributable Interest with respect to the REMIC I Regular Interests has been paid, the REMIC I Principal Amounts of all of the REMIC I Regular Interests have been reduced to zero, and all Collateral Support Deficits (including interest thereon) previously allocated thereto to the REMIC I Regular Interests have been reimbursed, the Certificate Administrator shall pay to the Holders of the Class R Certificates with respect to the REMIC I Residual Interest any amounts of the Available Distribution Amount (other than Excess Interest) remaining with respect to each Mortgage Loan or, to the extent of the Trust’s interest therein, the related REO Property.
(c) Any Prepayment Premium distributed with respect to any Class of REMIC III Regular Certificates on any Distribution Date pursuant to Section 6.10, shall be deemed to have first been distributed from REMIC I to REMIC II in respect of the Corresponding REMIC I Regular Interest for the Mortgage Loan (including each REO Mortgage Loan) as to which such Prepayment Premium was received.
Section 6.4 REMIC II.
(a) On each Distribution Date, following any allocations of Trust Advisor Expenses on such Distribution Date pursuant to Section 6.11, the Certificate Administrator shall
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be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular Interests, amounts distributable to any Class of Principal Balance Certificates, pursuant to Section 6.5, Section 6.10 or Section 11.1, with respect to such Class’s Corresponding REMIC II Regular Interest.
(b) All distributions made in respect of a Class of Class X Certificates on any Distribution Date pursuant to Section 6.5, Section 6.10 or Section 11.1, and allocable to any particular Class X REMIC III Regular Interest, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of such Class X REMIC III Regular Interest’s Corresponding REMIC II Regular Interest.
(c) [Reserved]
(d) [Reserved]
(e) For purposes of Section 6.4(a), Section 6.4(b), Section 6.4(c) and Section 6.4(d), if the subject distribution on or in respect of any Class of REMIC III Regular Certificates was a distribution of interest, principal, Prepayment Premiums or in reimbursement of previously allocated Collateral Support Deficits or Trust Advisor Expenses, then the corresponding distribution deemed to be made on a REMIC II Regular Interest shall be deemed to also be, respectively, a distribution of interest, principal, Prepayment Premiums or in reimbursement of previously allocated Collateral Support Deficits or Trust Advisor Expenses with respect to such REMIC II Regular Interest.
(f) Any amounts remaining in the Distribution Account with respect to REMIC II on any Distribution Date after the foregoing distributions shall be distributed to the Holders of the Class R Certificates with respect to the REMIC II Residual Interest.
Section 6.5 REMIC III.
(a) On each Distribution Date, following any allocations of Trust Advisor Expenses on such Distribution Date pursuant to Section 6.11, the Certificate Administrator shall withdraw from the Distribution Account an amount equal to the Available Distribution Amount and shall distribute such amount (other than the amount attributable to any Excess Liquidation Proceeds, which shall be distributed in accordance with Section 6.5(b), and any Excess Interest, which shall be distributed in accordance with Section 6.5(d)), in the following amounts and order of priority:
(i) to make payments to the Holders of the Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class X-E, Class X-FG and Class X-NR Certificates, in an amount up to all Distributable Certificate Interest with respect to such Classes of Certificates for such Distribution Date, pro rata in proportion to the Distributable Certificate Interest payable to each such Class;
(ii) to make payments to the Holders of the Class A-1, Class A-SB, Class A-3 and Class A-4 Certificates, in reduction of the respective Aggregate Certificate Balances thereof, in an amount up to the remaining Principal Distribution Amount for such Distribution Date: first, to the Holders of the Class A-SB Certificates, the Principal
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Distribution Amount for such Distribution Date, until the Aggregate Certificate Balance thereof has been reduced to the Planned Principal Balance for such Distribution Date, second, to the Holders of the Class A-1 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance thereof is reduced to zero, third, upon payment in full of the Aggregate Certificate Balance of the Class A-1 Certificates, to the Holders of the Class A-3 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-3 Certificates has been reduced to zero, fourth, upon payment in full of the Aggregate Certificate Balance of the Class A-3 Certificates, to the Holders of the Class A-4 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-4 Certificates has been reduced to zero, and fifth, upon payment in full of the Aggregate Certificate Balance of the Class A-4 Certificates, to the Holders of the Class A-SB Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-SB Certificates has been reduced to zero;
(iii) to make payments to the Holders of the Class A-1, Class A-SB, Class A-3 and Class A-4 Certificates, first, up to an amount equal to, and pro rata in proportion to, their respective entitlements to reimbursement described in this clause first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, up to an amount equal to, and pro rata in proportion to, their respective entitlements to payment described in this clause second, of any unpaid interest at the applicable Pass-Through Rate on unreimbursed Collateral Support Deficits previously allocated to each such Class, in each case from the date allocated;
(iv) to make payments to the Holders of the Class A-S Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(v) upon payment in full of the Aggregate Certificate Balances of the Class A-1, Class A-SB, Class A-3 and Class A-4 Certificates, to make payments to the Holders of the Class A-S Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class A-S Certificates has been reduced to zero;
(vi) to make payments to the Holders of the Class A-S Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
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(vii) to make payments to the Holders of the Class B Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(viii) upon payment in full of the Aggregate Certificate Balance of the Class A-S Certificates, to make payments to the Holders of the Class B Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class B Certificates has been reduced to zero;
(ix) to make payments to the Holders of the Class B Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(x) to make payments to the Holders of the Class C Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xi) upon payment in full of the Aggregate Certificate Balance of the Class B Certificates, to make payments to the Holders of the Class C Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class C Certificates has been reduced to zero;
(xii) to make payments to the Holders of the Class C Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xiii) to make payments to the Holders of the Class D Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xiv) upon payment in full of the Aggregate Certificate Balance of the Class C Certificates, to make payments to the Holders of the Class D Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class D Certificates has been reduced to zero;
(xv) to make payments to the Holders of the Class D Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable
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Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xvi) to make payments to the Holders of the Class E Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xvii) upon payment in full of the Aggregate Certificate Balance of the Class D Certificates, to make payments to the Holders of the Class E Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class E Certificates has been reduced to zero;
(xviii) to make payments to the Holders of the Class E Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xix) to make payments to the Holders of the Class F Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xx) upon payment in full of the Aggregate Certificate Balance of the Class E Certificates, to make payments to the Holders of the Class F Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class F Certificates has been reduced to zero;
(xxi) to make payments to the Holders of the Class F Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxii) to make payments to the Holders of the Class G Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xxiii) upon payment in full of the Aggregate Certificate Balance of the Class F Certificates, to make payments to the Holders of the Class G Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class G Certificates has been reduced to zero;
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(xxiv) to make payments to the Holders of the Class G Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxv) to make payments to the Holders of the Class H Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xxvi) upon payment in full of the Aggregate Certificate Balance of the Class G Certificates, to make payments to the Holders of the Class H Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class H Certificates has been reduced to zero;
(xxvii) to make payments to the Holders of the Class H Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, of any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxviii) to each Class of Principal Balance Certificates (other than any Class of Control Eligible Certificates) in sequential order as specified in clauses (i) through (xvii) above, until all amounts of Trust Advisor Expenses (including Excess Trust Advisor Expenses) previously allocated to such Classes of Certificates, whether as a reduction of interest or as a reduction of the Aggregate Certificate Balance of such Class, but not previously reimbursed, have been reimbursed in full (it being understood that previously allocated Trust Advisor Expenses are not reimbursable as part of the reimbursement of previously allocated Collateral Support Deficits); and
(xxix) to make payments to the Holders of the Class R Certificates, up to the amount of any remaining portion of Available Distribution Amount on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on or after the earliest date, if any, upon which the Aggregate Certificate Balance of all Classes of Subordinate Certificates has been reduced to zero, or the aggregate Appraisal Reduction allocable to the Mortgage Loans is greater than or equal to the Aggregate Certificate Balance of all Classes of Subordinate Certificates, distributions of principal pursuant to clause (ii) of this Section 6.5(a) will be made to the Holders of the Class A-1, Class A-SB, Class A-3 and Class A-4 Certificates, pro rata, based on the respective Aggregate Certificate Balances of such Classes of Certificates, in reduction of the respective Aggregate Certificate Balances of such Classes of Certificates, in an amount up to the Principal Distribution Amount for such Distribution Date, until the Aggregate Certificate Balance of each such Class is reduced to zero.
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All distributions of interest, if any, made with respect to any Class of Class X Certificates on any Distribution Date, pursuant to this Section 6.5(a), shall be made, and shall be deemed to have been made, in respect of the various Class X REMIC III Regular Interests that relate to the subject Class of Class X Certificates, pro rata in accordance with the respective amounts of Distributable Interest in respect of such Class X REMIC III Regular Interests for such Distribution Date.
(b) On each Distribution Date, the Certificate Administrator shall withdraw amounts in the Excess Liquidation Proceeds Reserve Account and make payments in the following priority:
(i) first, to reimburse the holders of the respective Classes of the REMIC III Regular Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any Unpaid Interest then owing to such Classes;
(ii) second, to reimburse the holders of the Principal Balance Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any unreimbursed Collateral Support Deficits previously allocated to them, together with interest on such Collateral Support Deficits at the applicable Pass-Through Rate, in each case from the date of allocation; and
(iii) third, upon the reduction of the Aggregate Certificate Balance of the Principal Balance Certificates to zero, to pay any amounts remaining on deposit in such account, to the Holders of the Class R Certificates.
(c) On each Distribution Date, following application of amounts on deposit in the Excess Liquidation Proceeds Reserve Account as provided in Section 6.5(b), the Certificate Administrator shall withdraw any amounts on deposit in the TA Unused Fees Account and shall apply such amounts as follows: first, to pay any current outstanding indemnification payments and other unreimbursed expenses payable to the Trust Advisor pursuant to this Agreement; second, to reimburse the holders of Class A Senior Certificates, and the Class B, Class C and Class D Certificates to the extent of any Trust Advisor Expenses that were actually applied to reduce the Distributable Certificate Interest of such Classes or the Aggregate Certificate Balance of such Classes, as applicable, on any Distribution Date, which amounts will be allocated first as recoveries of principal of such Classes in the reverse order in which the applicable Excess Trust Advisor Expenses were allocated to reduce the respective Aggregate Certificate Balances of such Classes and then as recoveries of interest shortfalls on such Classes (other than the Class A-1, Class A-SB, Class A-3, Class A-4 and Class A-S Certificates) in the reverse order in which the applicable Trust Advisor Expenses were allocated to reduce Distributable Certificate Interest on such Classes; third, if such Distribution Date coincides with or follows the earlier of (x) the final Distribution Date and (y) the date that the Aggregate Certificate Balance of the Principal Balance Certificates, other than the Control Eligible Certificates, has been reduced to zero, to reimburse the holders of the Class A Senior Certificates and the Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any unreimbursed Collateral Support Deficits previously allocated to such Classes, together with
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interest on such Collateral Support Deficits at the applicable Pass-Through Rate, in each case from the date of allocation; fourth, if such Distribution Date coincides with or follows the earlier of (x) the final Distribution Date and (y) the date that the Aggregate Certificate Balance of the Principal Balance Certificates, other than the Control Eligible Certificates, has been reduced to zero, to reimburse the Class A Senior Certificates and the Class A-S, Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class X Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any Unpaid Interest due and owing to such Classes; and fifth, upon the reduction of the Aggregate Certificate Balance of the Principal Balance Certificates to zero, to pay any amounts remaining on deposit in such account, to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Certificate Administrator shall withdraw from the Excess Interest Sub-account any Excess Interest on deposit therein, and the Certificate Administrator shall pay such Excess Interest on such Distribution Date to the Holders of the Class V Certificates.
Section 6.6 Allocation of Collateral Support Deficits.
(a) REMIC I. On each Distribution Date, following the deemed distributions with respect to the REMIC I Regular Interests on such Distribution Date pursuant to Section 6.3, the Collateral Support Deficits, if any, with respect to each REMIC I Regular Interest on such Distribution Date will be allocated to such REMIC I Regular Interest in reduction of the REMIC I Principal Amount of such REMIC I Regular Interest.
(b) REMIC II. On each Distribution Date, following the deemed distributions with respect to the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.4, any Collateral Support Deficits with respect to the REMIC II Regular Interests on such Distribution Date will be allocated to the respective REMIC II Regular Interests as follows:
(i) first, to REMIC II Regular Interest H, to REMIC II Regular Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E, REMIC II Regular Interest D, REMIC II Regular Interest C, REMIC II Regular Interest B and REMIC II Regular Interest A-S, in that order, in each case in reduction of the REMIC II Principal Amount of the subject REMIC II Regular Interest until such REMIC II Principal Amount is reduced to zero; and
(ii) then, to REMIC II Regular Interest A-1, REMIC II Regular Interest A-SB, REMIC II Regular Interest A-3 and REMIC II Regular Interest A-4, on a pro rata basis in accordance with, and in reduction of, the respective REMIC II Principal Amounts of such REMIC II Regular Interests until such REMIC II Principal Amounts are reduced to zero.
(c) REMIC III. On each Distribution Date, following the distributions with respect to the Principal Balance Certificates on such Distribution Date pursuant to Section 6.5, any Collateral Support Deficits with respect to the Principal Balance Certificates on such Distribution Date will be allocated to the respective Classes of Principal Balance Certificates as follows:
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(i) first, to the Class H Certificates, to the Class G Certificates, the Class F Certificates, the Class E Certificates, the Class D Certificates, the Class C Certificates, the Class B Certificates and the Class A-S Certificates, in that order, in each case in reduction of the Aggregate Certificate Balance of the subject Class of Principal Balance Certificates until such Aggregate Certificate Balance is reduced to zero; and
(ii) second, to the Class A-1 Certificates, Class A-SB Certificates, Class A-3 Certificates and Class A-4 Certificates, on a pro rata basis in accordance with, and in reduction of, the respective Aggregate Certificate Balances of such Classes of Principal Balance Certificates until such Aggregate Certificate Balances are reduced to zero.
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls. On each Distribution Date, the portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocable to any Principal Prepayment of any Mortgage Loan during the related Collection Period shall be allocated to the Corresponding REMIC I Regular Interest to reduce the Distributable Interest for such REMIC I Regular Interest in accordance with the definition of “Distributable Interest”. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date shall be allocated among the respective REMIC II Regular Interests, pro rata in proportion to the Accrued Interest for each REMIC II Regular Interest for such Distribution Date and shall reduce Distributable Interest for each REMIC II Regular Interest in accordance with the definition of “Distributable Interest”. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date shall be allocated among the respective Classes of the REMIC III Regular Certificates, pro rata in proportion to the amount of Accrued Certificate Interest payable to each such Class of REMIC III Regular Certificates for such Distribution Date and shall reduce the Distributable Certificate Interest for each such Class of REMIC III Regular Certificates for such Distribution Date in accordance with the definition of “Distributable Certificate Interest”. On each Distribution Date, the portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocable to a Class of Class X Certificates shall, in turn, be allocated to the respective Class X REMIC III Regular Interests related to such Class, pro rata in proportion to the Accrued Interest with respect to each Class X REMIC III Regular Interest for such Distribution Date and shall reduce the Distributable Interest for each Class X REMIC III Regular Interest for such Distributable Date in accordance with the definition of “Distributable Interest”. No Prepayment Interest Shortfall with respect to a Serviced Companion Loan or a Serviced B Note shall be allocated to any Class of Certificates.
Section 6.8 Adjustment of Master Servicing Fees. The Master Servicing Fee payable to the Master Servicer shall be adjusted as provided in Section 5.2(a)(I)(iv) herein. Any amount retained by REMIC I as a result of a reduction of the Master Servicing Fee shall be treated as interest collected with respect to the prepaid Mortgage Loans with respect to which the Master Servicing Fee adjustment occurs. The Master Servicer shall deposit in the Distribution Account prior to each Distribution Date any Compensating Interest for such Distribution Date not covered by the foregoing adjustment to Master Servicing Fees.
Section 6.9 Appraisal Reductions. If an Appraisal Event occurs, the Special Servicer shall obtain (and shall use reasonable efforts to obtain within sixty (60) days of such Appraisal Event) (A) an Appraisal of the Mortgaged Property securing the related Mortgage
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Loan (other than any Non-Serviced Mortgage Loan), Loan Pair or A/B Whole Loan, if the Stated Principal Balance of such Mortgage Loan, Loan Pair or A/B Whole Loan exceeds $2,000,000 or (B) at the option of the Special Servicer, if such Stated Principal Balance is less than or equal to $2,000,000, either an internal valuation prepared by the Special Servicer in accordance with MAI standards or an Appraisal; provided that if the Special Servicer had completed or obtained an Appraisal or internal valuation within the immediately prior nine (9) months, the Special Servicer may rely on such Appraisal or internal valuation and shall have no duty to prepare a new Appraisal or internal valuation, unless the Special Servicer is aware of any material change to the related Mortgaged Property, its earnings potential or risk characteristics, or marketability, or market conditions that have occurred that would affect the validity of the appraisal or valuation; and provided, further, that an updated Appraisal shall not be required with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, as applicable, and an Appraisal Reduction will not be required, so long as a debt service reserve, letter of credit, guaranty or surety bond is available and has the ability to pay off the then Unpaid Principal Balance of the subject Mortgage Loan, A/B Whole Loan or Loan Pair in full except to the extent that the Special Servicer, in accordance with the Servicing Standard, determines that obtaining an Appraisal is in the best interests of the Certificateholders. The Special Servicer shall update such Appraisal or valuation in accordance with the definition of “market value” as set forth in 12 C.F.R. § 225.62 at least annually, and shall use reasonable efforts to do so within thirty (30) days of each annual anniversary of the related Appraisal Event, to the extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by the Special Servicer, shall be an expense of the Trust (and any related Serviced B Note) and may be paid from REO Income or, to the extent collections from such related Mortgage Loan, Serviced B Note, Loan Pair or Mortgaged Property does not cover the expense, such unpaid expense shall be, subject to Section 4.4 hereof, advanced by the Master Servicer at the request of the Special Servicer or by the Special Servicer pursuant to Section 4.2 in which event it shall be treated as a Servicing Advance. The Special Servicer, based on the Appraisal or internal valuation prepared or obtained by the Special Servicer and receipt of information requested by the Special Servicer from the Master Servicer pursuant to this Section 6.9, shall calculate any Appraisal Reduction and promptly report such amount to the Master Servicer, the Trustee, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor. The Special Servicer shall calculate or recalculate the Appraisal Reduction for any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced B Note and Loan Pair based on updated Appraisals or internal valuations prepared or obtained from time to time by the Special Servicer and report such amount to the Master Servicer, the Trustee, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor annually. The Master Servicer shall provide the Special Servicer with information (via electronic delivery) in its possession that is required to calculate or recalculate any Appraisal Reduction pursuant to the definition thereof, using reasonable efforts to deliver such information within four (4) Business Days of the Special Servicer’s written request (which request shall be made promptly, but in no event later than ten (10) Business Days, after the Special Servicer’s receipt of the applicable Appraisal or preparation of the applicable internal valuation); provided the Special Servicer’s failure to timely make such request shall not relieve the Master Servicer of its obligation to provide such information to the Special Servicer in the
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manner and timing set forth in this sentence. The Master Servicer shall not calculate Appraisal Reductions.
On each and every day following the Closing Date, the then Aggregate Certificate Balance of each Class of the Principal Balance Certificates shall be notionally reduced (for purposes of determining the identity of the Controlling Class, whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect and, as and to the extent contemplated by the definition of “Voting Rights”, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates) to the extent of the then existing Appraisal Reduction(s) (without giving effect to, and exclusive of, any Appraisal Reduction calculated pursuant to the last sentence of the definition of “Appraisal Reduction” (other than the proviso contained in such sentence)) allocable to such Class. The aggregate Appraisal Reduction in respect of or allocable to the Mortgage Loans as of any date of determination shall be applied (solely for purposes of determining the identity of the Controlling Class, whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect and, as and to the extent contemplated by the definition of “Voting Rights”, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates) to notionally reduce the respective Aggregate Certificate Balances of the various Classes of Principal Balance Certificates in the following order of priority: first, to the Class H Certificates; second, to the Class G Certificates; third, to the Class F Certificates; fourth, to the Class E Certificates; fifth, to the Class D Certificates; sixth, to the Class C Certificates; seventh, to the Class B Certificates; eighth, to the Class A-S Certificates; and finally, pro rata to the (i) Class A-1 Certificates, (ii) Class A-SB Certificates, (iii) Class A-3 Certificates and (iv) Class A-4 Certificates based on their respective Aggregate Certificate Balances (provided in each case that no Aggregate Certificate Balance in respect of any such Class may be notionally reduced below zero). With respect to any Appraisal Reduction calculated for the purposes of determining the identity of the Controlling Class, the appraised value of the related Mortgaged Property shall be determined on an “as-is” basis. If all or any portion of an Appraisal Reduction ceases to exist as of any date of determination, then such Appraisal Reduction or applicable portion thereof shall no longer thereafter be applied in accordance with the foregoing two (2) sentences to notionally reduce the Aggregate Certificate Balance of any Class of Principal Balance Certificates, and (consistent with the foregoing) the Aggregate Certificate Balances of the applicable Classes of Principal Balance Certificates shall be notionally restored to the extent such Appraisal Reduction or portion thereof ceases to exist.
Any Appraisal Reduction with respect to an A/B Whole Loan shall be allocated to notionally reduce the outstanding principal balance of the related Serviced B Note prior to any allocation to the related A Note.
Any Appraisal Reduction with respect to a Loan Pair shall be allocated between the related Mortgage Loan and the related Serviced Companion Loan on a pro rata basis by Unpaid Principal Balance.
The Master Servicer shall deliver to the Special Servicer notice of the occurrence of an Appraisal Event promptly following the Master Servicer’s knowledge of the occurrence thereof, and the Special Servicer shall deliver to the Master Servicer notice of the occurrence of an Appraisal Event promptly following the Special Servicer’s knowledge of the occurrence
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thereof. With respect to any Loan Pair, the Master Servicer shall deliver to any related Other Master Servicer, Other Special Servicer and Other Trustee (i) notice of the occurrence of any Appraisal Event in respect of such Loan Pair promptly following its knowledge, or receipt of notice from the Special Servicer, of the occurrence thereof and (ii) a statement of any Appraisal Reduction in respect of such Loan Pair promptly following its receipt from the Special Servicer of the calculation or recalculation thereof.
The Holders of the majority (based on Certificate Balance) of any Class of Control Eligible Certificates the Aggregate Certificate Balance of which has been reduced to less than 25% of the initial Aggregate Certificate Balance thereof as a result of an allocation of Appraisal Reductions in respect of such Class (such Class, an “Appraised-Out Class”) shall have the right, at their sole expense, to present to the Special Servicer a second (2nd) Appraisal of the Mortgaged Property securing any Required Appraisal Loan (other than any Non-Serviced Mortgage Loan) (such holders, the “Requesting Holders”) prepared by an Independent MAI appraiser on an “as-is” basis and acceptable to the Special Servicer in accordance with the Servicing Standard. Upon receipt of such second (2nd) Appraisal, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such second (2nd) Appraisal, any recalculation of the applicable Appraisal Reduction is warranted and, if so warranted, shall recalculate such Appraisal Reduction based upon such second (2nd) Appraisal. Any Appraised-Out Class(es) (together with any other Classes of Control Eligible Certificates affected by such Appraisal Reduction) shall have the related Aggregate Certificate Balance(s) notionally restored to the extent required by such recalculation of the Appraisal Reduction, and there will be a redetermination of whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect, as applicable. The right of any Appraised-Out Class to present a second (2nd) Appraisal in connection with any Required Appraisal Loan is limited to one Appraisal with respect to each Mortgaged Property relating to such Required Appraisal Loan.
In addition, if subsequent to a Class of Control Eligible Certificates becoming an Appraised-Out Class there is a material change with respect to any of the Mortgaged Properties related to the Appraisal Reduction that caused such Class to become an Appraised-Out Class, the applicable Requesting Holders shall have the right (except in the case of a Non-Serviced Mortgage Loan), at their sole expense, to present to the Special Servicer an additional Appraisal prepared by an Independent MAI appraiser on an “as-is” basis and acceptable to the Special Servicer in accordance with the Servicing Standard. Subject to the Special Servicer’s confirmation, determined in accordance with the Servicing Standard, that there has been a change with respect to the related Mortgaged Property and such change was material, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such additional Appraisal, any recalculation of the applicable Appraisal Reduction is warranted and, if so warranted, shall recalculate such Appraisal Reduction based upon such additional Appraisal. Any Appraised-Out Class(es) (together with any other Classes of Control Eligible Certificates affected by such Appraisal Reduction) shall have the related Aggregate Certificate Balance(s) notionally restored to the extent required by such recalculation of the Appraisal Reduction, and there shall be a redetermination of whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect, as applicable. With respect to each Class of Control Eligible Certificates, the right to present the
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Special Servicer with additional Appraisals as provided in this paragraph is limited to no more frequently than once in any twelve (12)-month period.
Appraisals that are permitted to be presented by any Appraised-Out Class will be in addition to any Appraisals that the Special Servicer may otherwise be required to obtain in accordance with the Servicing Standard upon the occurrence of such material change or that the Special Servicer is otherwise required or permitted to order under this Agreement without regard to any appraisal requests made by any Requesting Holder.
Any Appraised-Out Class shall not be entitled to exercise any rights of the Controlling Class until such time, if any, as such Class is reinstated as the Controlling Class; and the rights of the Controlling Class will be exercised by the Holders of the next most senior Class of Control Eligible Certificates that is not an Appraised-Out Class, if any.
Copies of all Appraisals and other Third Party Reports obtained pursuant to this Agreement by the Special Servicer or the Master Servicer with respect to any Mortgaged Property shall be delivered (in electronic format or hard copy) to the other such servicer and to the Trustee, the Certificate Administrator (in electronic format), the 17g-5 Information Provider (in electronic format) and the Trust Advisor.
Section 6.10 Prepayment Premiums. Any Prepayment Premium collected with respect to a Mortgage Loan (but not a Serviced B Note or Serviced Companion Loan, which Prepayment Premium is payable to the holder of the related Serviced B Note or the related Serviced Companion Loan, as applicable) during any particular Collection Period shall be distributed by the Certificate Administrator on the following Distribution Date as follows:
(i) The respective Classes of the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C and Class D Certificates then entitled to distributions of principal from the Principal Distribution Amount for such Distribution Date will be entitled to, and the Certificate Administrator on behalf of the Trustee will pay to such Classes, an amount equal to, in the case of each such Class, the product of (A) a fraction, the numerator of which is the amount distributed as principal to that Class on that Distribution Date, and the denominator of which is the total amount distributed as principal to the Holders of all Classes of Principal Balance Certificates on that Distribution Date, multiplied by (B) the Base Interest Fraction for the related Principal Prepayment and that Class, multiplied by (C) the amount of the Prepayment Premium collected in respect of such Principal Prepayment during the related Collection Period.
(ii) Any portion of any such Prepayment Premium that is not so distributed to any of the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C or Class D Certificates in accordance with the immediately preceding clause (i) distributed (the applicable “Class X YM Distribution Amount”) will be distributed to the Holders of the respective Classes of the Class X Certificates as follows:
(1) first, to the Holders of the Class X-A Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class A Senior
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Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount;
(2) second, to the Holders of the Class X-B Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class A-S Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount;
(3) third, to the Holders of the Class X-D Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class D Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount;
(4) fourth, to the Holders of the Class X-E Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class E Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount;
(5) fifth, to the Holders of the Class X-FG Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class F and Class G Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount; and
(6) sixth, to the Holders of the Class X-NR Certificates in an amount equal to any portion of the applicable Class X YM Distribution Amount remaining after the foregoing distributions to the Holders of the Class X-A, Class X-B, Class X-D, Class X-E and Class X-FG Certificates.
All distributions of Prepayment Premiums, if any, made with respect to a Class of Class X Certificates on any Distribution Date, pursuant to this Section 6.10, shall be made, and shall be deemed to have been made, in respect of the various Class X REMIC III Regular Interests that relate to the subject Class of Class X Certificates, pro rata in accordance with the
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respective amounts by which the Notional Amounts of such Class X REMIC III Regular Interests declined on such Distribution Date.
Section 6.11 Allocation of Trust Advisor Expenses.
(a) On each Distribution Date, immediately prior to the distributions to be made to the Certificateholders for such Distribution Date pursuant to Section 6.5(a), the Certificate Administrator shall allocate Trust Advisor Expenses to reduce the Distributable Certificate Interest for such Distribution Date first, for the Class D Certificates, then, for the Class C Certificates and then, the Class B Certificates, in that order, in each case, until the Distributable Certificate Interest of such Class for such Distribution Date has been reduced to zero. Trust Advisor Expenses shall not be allocated to reduce interest distributable to the Class A Senior Certificates, the Class A-S Certificates, the Class X Certificates, the Class V Certificates (with respect to Excess Interest), the Control Eligible Certificates or any Serviced B Note or Serviced Companion Loan.
To the extent that the amount of Trust Advisor Expenses payable with respect to any Distribution Date is greater than the aggregate amount of Distributable Certificate Interest otherwise distributable on the Class B, Class C and Class D Certificates for such Distribution Date, the resulting Excess Trust Advisor Expenses shall reduce the Principal Distribution Amount for such Distribution Date otherwise allocable to the Principal Balance Certificates that are not Control Eligible Certificates. In addition, such Excess Trust Advisor Expenses shall be allocated to reduce the Aggregate Certificate Balances of the respective Classes of Principal Balance Certificates that are not Control Eligible Certificates up to the aggregate amount of such reduction of the Principal Distribution Amount in the following order: first, to the Class D Certificates, until the remaining Aggregate Certificate Balance of such Class of Certificates has been reduced to zero, second, to the Class C Certificates until the Certificate Balance of such Class of Certificates has been reduced to zero, third, to the Class B Certificates until the Certificate Balance of such Class of Certificates has been reduced to zero, fourth, to the Class A-S Certificates until the Certificate Balance of such Class of Certificates has been reduced to zero; and then, among the respective Classes of Class A Senior Certificates, pro rata (based upon their respective Aggregate Certificate Balances), until the remaining Aggregate Certificate Balances of the Class A Senior Certificates have been reduced to zero.
Any Trust Advisor Expenses (including Excess Trust Advisor Expenses) allocated to a Class of Certificates shall be allocated among the respective Certificates of such Class in proportion to the Percentage Interests evidenced by such Certificates. Any Trust Advisor Expenses remaining unreimbursed after the allocations set forth in the preceding paragraphs shall remain unreimbursed until the next Distribution Date that such applicable amounts are available. In no event shall any Trust Advisor Expenses (including Excess Trust Advisor Expenses) reduce or delay any principal or interest payable in respect of the Class V Certificates (with respect to Excess Interest) or the Control Eligible Certificates.
(b) On any Distribution Date, the amount reimbursable to the Trust Advisor in respect of Trust Advisor Expenses for such Distribution Date shall not exceed the sum of (i) the portion of the Principal Distribution Amount for such Distribution Date otherwise distributable to the Principal Balance Certificates that are not Control Eligible Certificates and (ii) the
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aggregate amount of Distributable Certificate Interest (for such purposes, calculated without regard to any reductions therein as a result of Trust Advisor Expenses for such Distribution Date) that would otherwise be distributable to the Class B, Class C and Class D Certificates for such Distribution Date. Any amount of Trust Advisor Expenses that are not reimbursed on a Distribution Date shall be payable on the next Distribution Date to the extent funds are sufficient, in accordance with this Section 6.11, to make such payments.
(c) To the extent any Actual Recoveries of Trust Advisor Expenses are received during any Collection Period, such amounts shall be allocated first, as an increase in the Aggregate Certificate Balance of each applicable Class of Principal Balance Certificates in the reverse order in which the Excess Trust Advisor Expenses were allocated in reduction of the Aggregate Certificate Balance of the Class A Senior Certificates, the Class A-S Certificates, the Class B Certificates, the Class C Certificates and/or the Class D Certificates pursuant to Section 6.11, with a corresponding increase in the Principal Distribution Amount for the related Distribution Date in the aggregate amount of such increases to such Aggregate Certificate Balances and then, as an increase in the Distributable Certificate Interest for the related Distribution Date in respect of the Class B, Class C and Class D Certificates, in that order, in each case, up to an amount equal to the aggregate reduction of the subject Class’s Distributable Certificate Interest for all prior Distribution Dates (including as payment to a more senior Class of Certificates in respect of interest shortfalls created by previously allocated Trust Advisor Expenses), to the extent not previously reimbursed.
On each Distribution Date, if and to the extent that Trust Advisor Expenses have been allocated to the Class B Certificates on any prior Distribution Date in reduction of the Distributable Certificate Interest for such Class of Certificates, and such reductions in Distributable Certificate Interest for such Class of Certificates have not been previously reimbursed, then the Class B Certificates will be entitled to reimbursement for the Trust Advisor Expense Interest Shortfall in respect of the Class B Certificates for such Distribution Date (with a corresponding increase in the Distributable Certificate Interest with respect to the Class B Certificates for such Distribution Date): first, out of amounts otherwise distributable as interest to the Class D Certificates for such Distribution Date, up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class D Certificates for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”) and second, out of amounts otherwise distributable as interest to the Class C Certificates for such Distribution Date, up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class C Certificates for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”).
On each Distribution Date, if and to the extent that Trust Advisor Expenses have been allocated to the Class C Certificates on any prior Distribution Date in reduction of the Distributable Certificate Interest for such Class of Certificates, and such reductions in Distributable Certificate Interest for such Class of Certificates have not been previously reimbursed, then the Class C Certificates will be entitled to reimbursement for the Trust Advisor Expense Interest Shortfall in respect of the Class C Certificates for such Distribution Date (with a corresponding increase in the Distributable Certificate Interest with respect to the Class C Certificates for such Distribution Date) out of amounts otherwise distributable as interest to the
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Holders of the Class D Certificates for such Distribution Date, in each case up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class D Certificates for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”), reduced by any reimbursement made on such Distribution Date to the Class B Certificates pursuant to the prior paragraph out of amounts otherwise distributable as interest to the Holders of the Class D Certificates.
Any reimbursement made out of amounts otherwise distributable as interest to the Class C or Class D Certificates on any Distribution Date pursuant to any of the prior two (2) paragraphs, shall be deemed an allocation to such Class of the Trust Advisor Expenses being reimbursed to the Holders of a more senior Class of Certificates.
(d) On each Distribution Date, if any Trust Advisor Expense is allocated to the Class B, Class C or Class D Certificates in reduction of the Distributable Certificate Interest of such Class of Certificates for such Distribution Date, then such Trust Advisor Expense will be deemed allocated to the Corresponding REMIC II Regular Interest in reduction of the Distributable Interest of such Corresponding REMIC II Regular Interest for such Distribution Date. In addition, on each Distribution Date, if any Excess Trust Advisor Expense is allocated to the Class A Senior Certificates, the Class A-S Certificates, the Class B Certificates, the Class C Certificates or the Class D Certificates in reduction of the Aggregate Certificate Balance of such Class of Certificates, then such Excess Trust Advisor Expense will be deemed allocated to the Corresponding REMIC II Regular Interest in reduction of the REMIC II Principal Amount of such Corresponding REMIC II Regular Interest.
(e) For the avoidance of doubt and notwithstanding anything to the contrary contained herein, each of the parties hereto acknowledges and agrees (and each Certificateholder, by its acceptance of such Certificate, is deemed to acknowledge and agree) that all calculations to be made hereunder in respect of the entitlement of the Control Eligible Certificates to receive interest, principal and other amounts (including P&I Advances in respect to such Certificates) shall be made such that (i) the Control Eligible Certificates shall be paid the amounts to which they are entitled on each Distribution Date as if no Trust Advisor Expenses had been incurred, reimbursed or reimbursable, and (ii) in no event shall any Trust Advisor Expenses reduce or delay in any manner any principal, interest or other amounts (including P&I Advances) payable or reimbursable to the Control Eligible Certificates.
ARTICLE
VII
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR
Section 7.1 Duties of the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee, the Custodian and the Certificate Administrator each shall undertake to perform only those duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Trustee, the
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Custodian or the Certificate Administrator. Any permissive right of the Trustee, the Custodian or the Certificate Administrator provided for in this Agreement shall not be construed as a duty of the Trustee, the Custodian or the Certificate Administrator. The Trustee, the Custodian and the Certificate Administrator each shall exercise such of the rights and powers vested in it by this Agreement and following the occurrence and during the continuation of any Servicer Termination Event or Trust Advisor Termination Event hereunder, the Trustee, the Custodian and the Certificate Administrator each shall use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) The Trustee, the Custodian or the Certificate Administrator, as applicable, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, the Custodian or the Certificate Administrator, as the case may be, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement; provided that the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer or any other Person to it pursuant to this Agreement. If any such instrument is found on its face not to conform to the requirements of this Agreement, the Trustee, the Custodian or the Certificate Administrator shall request the providing party to correct the instrument and if not so corrected, the Certificate Administrator shall inform the Certificateholders.
(c) None of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall have any liability to the Trust or the Certificateholders arising out of or in connection with this Agreement, except for their respective negligent failure to act or their own negligence, willful misconduct or bad faith. No provision of this Agreement shall be construed to relieve the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons from liability for their own negligent action, their own negligent failure to act or their own willful misconduct or bad faith; provided that:
(i) none of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or, to the extent not expressly inconsistent with the other terms of this Agreement, at the direction of Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates;
(ii) no provision of this Agreement shall require the Trustee, the Custodian or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
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repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(iii) except as specifically provided hereunder in connection with the performance of its specific duties, none of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall be responsible for any act or omission of the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor or any Seller, or for the acts or omissions of each other, including, without limitation, in connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee, the Custodian or the Certificate Administrator of any forms or plans of liquidation in connection with any REMIC Pool shall not constitute a representation by the Trustee, the Custodian or the Certificate Administrator as to the adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Custodian or the Certificate Administrator shall be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Trustee, the Custodian or the Certificate Administrator, as applicable in accordance with this Agreement. In such event, all legal expense and costs of such action shall be expenses and costs of the Trust, and the Trustee, the Custodian and the Certificate Administrator shall be entitled to be reimbursed therefor from the Collection Account pursuant to Section 5.2(a)(I)(vi); and
(vi) none of the Trustee, the Custodian or the Certificate Administrator shall be charged with knowledge of any failure by the Master Servicer, the Special Servicer or the Trust Advisor or by each other to comply with its obligations under this Agreement or any act, failure, or breach of any Person upon the occurrence of which the Trustee, the Custodian or the Certificate Administrator may be required to act, unless a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, obtains actual knowledge of such failure.
Section 7.2 Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Custodian and the Certificate Administrator each may request, and may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Custodian and the Certificate Administrator each may consult with counsel and the advice of such counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered
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or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel;
(iii) the Trustee, the Custodian and the Certificate Administrator shall not be under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document (provided the same appears regular on its face), unless requested in writing to do so by Holders of Certificates evidencing at least 25% of the Voting Rights of all the Certificates; provided that, if the payment within a reasonable time to the Trustee, the Custodian or the Certificate Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the foregoing is, in the opinion of such Person not reasonably assured to such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding. The reasonable expenses of the Trustee, the Custodian or the Certificate Administrator, as applicable, shall be paid by the Certificateholders requesting such examination;
(iv) the Trustee, the Custodian and the Certificate Administrator each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee, the Custodian and the Certificate Administrator conferred on them by such appointment; provided that (i) each of the Trustee, the Custodian and the Certificate Administrator, as the case may be, shall continue to be responsible for its duties and obligations hereunder as if it had not retained such agent or attorney and (ii) the Trustee, the Custodian or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party without the consent of the Depositor acting in its sole discretion;
(v) none of the Trustee, the Custodian or the Certificate Administrator (in its capacity as such) shall be required to obtain a deficiency judgment against a Mortgagor;
(vi) none of the Trustee, the Custodian or the Certificate Administrator shall be liable for any loss on any investment of funds pursuant to this Agreement, except as expressly provided herein; and
(vii) unless otherwise specifically required by law, none of the Trustee, the Custodian or the Certificate Administrator shall be required to post any surety or bond of any kind in connection with the execution or performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.
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(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by the Trustee without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise solely out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Trustee.
(e) The Certificate Administrator shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise solely out of a breach by the Certificate Administrator of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Certificate Administrator.
(f) None of the Trustee, the Custodian or the Certificate Administrator shall be required to take notice or be deemed to have notice or knowledge of any default, Servicer Termination Event or Trust Advisor Termination Event unless a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as applicable, shall have received written notice or obtained actual knowledge thereof. In the absence of receipt of such notice or actual knowledge, the Trustee, the Custodian and the Certificate Administrator may conclusively assume there is no default, Servicer Termination Event or Trust Advisor Termination Event.
(g) Except as otherwise expressly provided in this Agreement or in Section 2.1 and Section 2.6 of the Mortgage Loan Purchase Agreements, none of the Trustee, the Custodian or the Certificate Administrator shall have any duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer, Special Servicer or any Sub-Servicer delivered to the Trustee, the Custodian or the Certificate Administrator pursuant to this Agreement believed by the Trustee, the Custodian or the Certificate Administrator, as applicable, to be genuine and to have been signed or presented by the proper party or parties.
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(h) The right of the Trustee, the Custodian or the Certificate Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee, the Custodian or the Certificate Administrator shall not be answerable for other than its own negligence or willful misconduct in the performance or omission of such act.
(i) None of the Trustee, the Custodian or the Certificate Administrator shall be responsible for delays or failures in performance resulting directly or indirectly from forces beyond its control (including, without limitation, acts of God, strikes, work stoppages, lockouts, accidents, severe weather, floods, nuclear or natural catastrophes, riots, civil or military disturbances or hostilities, acts of war or terrorism, any provision of any present or future law or regulation or any act of any governmental authority, and any interruption, loss or malfunction of utilities, communications, computer services (software or hardware) or Federal Reserve Bank wire service).
(j) In making or disposing of any investment permitted by this Agreement, each of the Trustee, the Custodian and the Certificate Administrator is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis and on standard market terms, whether it or such Affiliate is acting as a subagent of the Trustee, the Custodian or the Certificate Administrator, as applicable, or for any third person or dealing as principal for its own account.
(k) Anything in this Agreement to the contrary notwithstanding, in no event shall the Trustee, the Custodian or the Certificate Administrator be liable for special, indirect, incidental, exemplary, punitive or consequential loss, expense or damage of any kind whatsoever (including but not limited to lost profits), whether or not any such losses, expenses or damages were foreseeable or contemplated, even if the Trustee, the Custodian or the Certificate Administrator, as applicable, has been advised of the likelihood of such loss, expense or damage and regardless of the form of action.
(l) Delivery of reports, information and documents to the Trustee, the Custodian or the Certificate Administrator shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Depositor’s or any other entity’s compliance with any covenants under this Agreement, the Certificates or any other related documents. None of the Trustee, the Custodian or the Certificate Administrator shall be obligated to monitor or confirm, on a continuing basis or otherwise, the Depositor’s or any other entity’s compliance with the covenants described herein or with respect to any reports or other documents filed under this Agreement, the Certificates or any other related document.
(m) No provision of this Agreement, the Certificates or any other related document shall be deemed to impose any duty or obligation on the Trustee, the Custodian or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under this Agreement, the Certificates or any such other related document, or to exercise any right or power thereunder, to the extent that taking or omitting to take such action or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on the advice or
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opinion of counsel), or which shall be beyond the corporate powers, authorization or qualification of the Trustee, the Custodian or the Certificate Administrator, as applicable.
(n) The rights, privileges, protections, exculpations, immunities, indemnities and benefits provided to the Trustee and/or the Certificate Administrator hereunder (including but not limited to its right to be indemnified) are extended to, and shall be enforceable by, U.S. Bank National Association in each of its capacities hereunder (including, without limitation, as Custodian, as Certificate Registrar and as Authenticating Agent) and to each of its Responsible Officers and other Persons duly employed by U.S. Bank National Association as if they were each expressly set forth herein for the benefit of the U.S. Bank National Association in each such capacity, such Responsible Officers or such employees of U.S. Bank National Association mutatis mutandis.
Section 7.3 The Trustee, the Custodian and the Certificate Administrator Not Liable for Certificates or Interests or Mortgage Loans. The Trustee, the Custodian and the Certificate Administrator each makes no representations as to the validity or sufficiency of this Agreement, the Certificates or the information contained in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus (other than the Certificate of Authentication on the Certificates if the Certificate Administrator is the Authenticating Agent and the information in the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Trustee, the Custodian and the Certificate Administrator indemnify certain parties pursuant to the Trustee Indemnification Agreement, the Custodian Indemnification Agreement and the Certificate Administrator Indemnification Agreement, respectively) or of any Mortgage Loan, Assignment of Mortgage or related document save that each of the Trustee, the Custodian and the Certificate Administrator, as to itself, represents that, assuming due execution and delivery by the other parties hereto, this Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms except that such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law. None of the Trustee, the Custodian or the Certificate Administrator shall be accountable for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of any of the Certificates or any of the proceeds of such Certificates, or for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of funds paid in consideration of the assignment of the Mortgage Loans to the Trust or deposited into the Distribution Account or any other fund or account maintained with respect to the Certificates or any account maintained pursuant to this Agreement or for investment of any such amounts. No recourse shall be had for any claim based on any provisions of this Agreement, the Certificates or the Private Placement Memorandum or the Preliminary Prospectus or the Final Prospectus (except (i) with respect to the Trustee, to the extent of the information regarding the Trustee in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Trustee indemnifies certain parties pursuant to the Trustee Indemnification Agreement, (ii) with respect to the Custodian, to the extent of the information regarding the Custodian in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Custodian indemnifies certain parties pursuant to the Custodian Indemnification Agreement and (iii) with respect to the Certificate
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Administrator, to the extent of the information regarding the Certificate Administrator in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Certificate Administrator indemnifies certain parties pursuant to the Certificate Administrator Indemnification Agreement), the Mortgage Loans or the assignment thereof against the Trustee, the Custodian or the Certificate Administrator in such Person’s individual capacity and any such claim shall be asserted solely against the Trust or any indemnitor who shall furnish indemnity as provided herein. None of the Trustee, the Custodian or the Certificate Administrator (in its capacity as such) shall be liable for any action or failure of any action by the Depositor or the Master Servicer or the Special Servicer or the Trust Advisor or by each other hereunder. None of the Trustee, the Custodian or the Certificate Administrator shall at any time have any responsibility or liability for or with respect to the legality, validity or enforceability of the Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages or the maintenance of any such perfection and priority, or for or with respect to the efficacy of the Trust or its ability to generate the payments to be distributed to Certificateholders under this Agreement, including, without limitation, the existence, condition and ownership of any Mortgaged Property; the existence and enforceability of any hazard insurance thereon; the validity of the assignment of the Mortgage Loans to the Trust or of any intervening assignment; the completeness of the Mortgage Loans; the performance or enforcement of the Mortgage Loans (other than if the Trustee shall assume the duties of the Master Servicer); the compliance by the Depositor, each Seller, the Mortgagor, the Master Servicer, the Special Servicer, the Trust Advisor or each other with any warranty or representation made under this Agreement or in any related document or the accuracy of any such warranty or representation made under this Agreement or in any related document prior to the receipt by a Responsible Officer of the Trustee of notice or other discovery of any non-compliance therewith or any breach thereof; any investment of monies by or at the direction of the Master Servicer or the Special Servicer or any loss resulting therefrom; the failure of the Master Servicer or the Special Servicer to act or perform any duties required of it on behalf of the Trustee hereunder; or any action by the Trustee taken at the instruction of the Master Servicer or the Special Servicer.
Section 7.4 The Trustee, the Custodian and the Certificate Administrator May Own Certificates. Each of the Trustee, the Custodian and the Certificate Administrator in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Trustee, the Custodian or the Certificate Administrator, as the case may be.
Section 7.5 Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A2” by Moody’s, at least “A-” by Fitch, and if rated by KBRA, a rating equivalent to either of the foregoing by KBRA, and that has a short-term unsecured debt rating of at least “P-1” by Moody’s, at least “F1” by Fitch, and if rated by KBRA, a rating equivalent to either of the foregoing by KBRA (or,
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in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(a), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency and Morningstar) and (iv) a Person that is not a Prohibited Party. If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.6.
(b) The Custodian hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A-” by Fitch, at least “A2” by Moody’s and, if rated by KBRA, a rating by KBRA equivalent to “A2” by Moody’s, and whose short-term unsecured debt is at all times rated at least “F1” by Fitch, at least “P-1” by Moody’s and, if rated by KBRA, a rating equivalent to either of the foregoing by KBRA (or, in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(b), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency and Morningstar) and (iv) a Person that is not a Prohibited Party. If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Custodian shall cease to be eligible in accordance with provisions of this Section, the Custodian shall resign immediately in the manner and with the effect specified in Section 7.6.
(c) The Certificate Administrator shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A-” by Fitch, at least “A2” by Moody’s and, if rated by KBRA, a rating by KBRA equivalent to “A2” by Moody’s, and whose short-term unsecured debt is at all times rated at least “F1” by Fitch, at least “P-1” by Moody’s and, if rated by KBRA, a rating equivalent to either of the foregoing by KBRA (or, in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(c), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency and Morningstar) and (iv) a Person that is not a Prohibited Party. In case at any time the Certificate Administrator shall cease to be eligible in
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accordance with provisions of this Section, the Certificate Administrator shall resign immediately in the manner and with the effect specified in Section 7.6.
Section 7.6 Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator.
(a) The Trustee, the Custodian or the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the other such party, the Depositor, the Master Servicer, the Trust Advisor, each holder of a Serviced B Note or Serviced Companion Loan and the 17g-5 Information Provider; provided that such resignation shall not be effective until its successor shall have accepted the appointment. The Trustee, the Custodian and the Certificate Administrator, as applicable, shall bear all costs associated with its respective resignation and the appointment of a successor trustee, custodian or certificate administrator, as applicable. Upon receiving such notice of resignation, the Depositor shall promptly appoint a successor trustee, custodian or certificate administrator, as the case may be, except in the case of the initial Trustee and Certificate Administrator, in which case both shall be so replaced but may be replaced under this paragraph sequentially, by written instrument, one copy of which instrument shall be delivered to the resigning Trustee, one copy to the successor trustee and one copy to each of the Master Servicer, the Custodian, the Certificate Administrator and, subject to Section 5.7, the Rating Agencies. If no successor trustee, custodian or certificate administrator shall have been so appointed, as the case may be, and shall have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Trustee, Custodian or Certificate Administrator, as the case may be, may petition any court of competent jurisdiction for the appointment of a successor trustee, custodian or certificate administrator, as the case may be. It shall be a condition to the appointment of a successor trustee, custodian or certificate administrator that such entity satisfies the eligibility requirements set forth in Section 7.5 and if, and for so long as, the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, such appointment shall have been consented to by the Depositor or the depositor under the Other Companion Loan Pooling and Servicing Agreement, as the case may be (which consent shall not be unreasonably withheld).
(b) If at any time (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.5(a) and shall fail to resign after written request therefor by the Depositor, (ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Trustee or the Trust held by the Trustee is located solely because of the location of the Trustee in such state; provided, that, if the Trustee agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Trustee as such would result in a downgrade, qualification or withdrawal of the rating by the Rating Agencies of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor may remove such Trustee and appoint a successor trustee by written instrument, one copy of which instrument shall be delivered to the Trustee so removed, one copy to the successor trustee and one copy to each of
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the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the 17g-5 Information Provider. In the case of removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear all such costs of transfer. Such succession shall take effect after a successor trustee has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Trustee or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Trustee fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such failure to perform does not result from a failure to perform of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Trustee, the Trustee shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such written request and, if the Trustee fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Trustee in accordance with the provisions set forth in this Section 7.6(b).
(c) If at any time (i) the Custodian shall cease to be eligible in accordance with the provisions of Section 7.5(b) and shall fail to resign after written request therefor by the Depositor, (ii) the Custodian shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Custodian or of its property shall be appointed, or any public officer shall take charge or control of the Custodian or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Custodian or the Trust is located solely because of the location of the Custodian in such state; provided, that, if the Custodian agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Custodian as such would result in a downgrade, qualification or withdrawal of the rating by the Rating Agencies of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor may remove such Custodian and appoint a successor custodian by written instrument, one copy of which instrument shall be delivered to the Custodian so removed, one copy to the successor custodian and one copy to each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the 17g-5 Information Provider. In the case of removal under clauses (i), (ii), (iii) and (iv) above, the Custodian shall bear all such costs of transfer. Such succession shall take effect after a successor custodian has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Custodian or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Custodian fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such default does not result from a failure to perform of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Custodian, the Custodian shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such written request and, if the Custodian fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Custodian in accordance with the provisions set forth in this Section 7.6(c).
(d) If at any time (i) the Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 7.5(c) and shall fail to resign after written request therefor by the Depositor, (ii) the Certificate Administrator shall become incapable of acting, or
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shall be adjudged a bankrupt or insolvent, or a receiver of the Certificate Administrator or of its property shall be appointed, or any public officer shall take charge or control of the Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Certificate Administrator or the Trust is located solely because of the location of the Certificate Administrator in such state; provided, that, if the Certificate Administrator agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Certificate Administrator as such would result in a downgrade, qualification or withdrawal, as applicable, of the rating by any Rating Agency of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor or the Trustee shall send a written notice of termination to the Certificate Administrator and the 17g-5 Information Provider (which notice shall specify the reason for such termination) and remove such Certificate Administrator and the Depositor shall appoint a successor Certificate Administrator by written instrument, one copy of which instrument shall be delivered to the Certificate Administrator so removed, one copy to the successor Certificate Administrator, and one copy to each of the Trustee, the Master Servicer, the Special Servicer and the 17g-5 Information Provider. In all such cases, the Certificate Administrator shall bear all costs of transfer to a successor Certificate Administrator, such succession only to take effect after a successor Certificate Administrator has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Certificate Administrator or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Certificate Administrator fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such failure to perform does not result from a default of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Certificate Administrator, the Certificate Administrator shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such written request and, if the Certificate Administrator fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Certificate Administrator in accordance with the provisions set forth in this Section 7.6(d).
(e) The Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates may for cause (as described in Section 7.6(b) through Section 7.6(f), as applicable) upon thirty (30) days’ written notice to the Trustee, the Custodian or the Certificate Administrator, as the case may be, and to the Depositor, the Master Servicer and the Special Servicer, remove the Trustee, the Custodian or the Certificate Administrator, as the case may be, by such written instrument, signed by such Holders or their attorney-in-fact duly authorized, one copy of which instrument shall be delivered to the Depositor and one copy to the Trustee, the Custodian or the Certificate Administrator, as the case may be, so removed; and the Depositor shall thereupon use its best efforts to appoint a successor Trustee, the Custodian or Certificate Administrator, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Custodian or the Certificate Administrator, as the case may be, and appointment of a successor trustee, custodian or certificate administrator pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee, custodian or certificate administrator,
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as the case may be, as provided in Section 7.7. Upon any succession of the Trustee, the Custodian or the Certificate Administrator under this Agreement, the predecessor Trustee, Custodian or Certificate Administrator, as the case may be, shall be entitled to the payment of compensation and reimbursement agreed to under this Agreement for services rendered and expenses incurred. The Trustee, the Custodian or the Certificate Administrator shall not be liable for any action or omission of any successor trustee, custodian or certificate administrator, as the case may be.
(g) Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor, or upon the removal of the Trustee, the outgoing Trustee at its own expense (without right of reimbursement therefor, except in the case of removal without cause) shall ensure that, prior to consummation of such transaction or as part of its transfer of duties to any successor or at such later time as may be consented to by the Master Servicer and the Special Servicer, (A) the original executed Note for each Mortgage Loan is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 or in blank (or, alternatively, if the original executed Note has been lost, a lost note affidavit and indemnity with a copy of such Note), and (B) in the case of the other Mortgage Loan documents, are delivered or assigned as necessary to such successor, and such successor shall review the documents delivered to it or the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made.
Upon the resignation, assignment, merger, consolidation, or transfer of the Custodian or its business to a successor, or upon the removal of the Custodian, the outgoing Custodian, at its own expense (without right of reimbursement therefor, except in the case of removal without cause), shall ensure that, prior to consummation of such transaction or as part of its transfer of duties to any successor custodian, all Mortgage Loan documents in the Mortgage File for each Mortgage Loan, are delivered as necessary to such successor custodian, and such successor shall review the documents delivered to it with respect to each Mortgage Loan and certify in writing that, as to each Mortgage Loan then subject to this Agreement, it will accept delivery of the Mortgage File (on behalf of the Trustee) in accordance with Section 2.2.
(h) Following the Closing Date, for so long as the Trust, and, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, neither the Certificate Administrator nor the Custodian may appoint any sub-servicer that is or could become a Reporting Servicer without the prior written consent of the Depositor or the depositor with respect to the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, as the case may be, which consent shall not be unreasonably withheld.
Section 7.7 Successor Trustee, Custodian or Certificate Administrator.
(a) Any successor trustee, custodian or certificate administrator appointed as provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its predecessor Trustee, Custodian or Certificate Administrator, as the case may be, an instrument
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accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee, Custodian or Certificate Administrator, as the case may be, shall become effective and such successor trustee, custodian or certificate administrator, as the case may be, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee, Custodian or Certificate Administrator herein. The predecessor Trustee, Certificate Administrator or Custodian shall deliver (at such predecessor’s own expense) to the successor trustee, certificate administrator or custodian all Mortgage Files and documents and statements related to the Mortgage Files held by it hereunder, and the predecessor Trustee, Certificate Administrator or Custodian shall duly assign, transfer, deliver and pay over (at such predecessor’s own expense) to the successor trustee, certificate administrator or custodian, the entire Trust, together with all instruments of transfer and assignment or other documents properly executed necessary to effect such transfer. The predecessor Trustee, the Custodian or Certificate Administrator, as the case may be, shall also deliver all records or copies thereof maintained by the predecessor Trustee, Custodian or Certificate Administrator in the administration hereof as may be reasonably requested by the successor trustee, custodian or certificate administrator, as applicable, and shall thereupon be discharged from all duties and responsibilities under this Agreement. In addition, the Depositor and the predecessor Trustee, Custodian or Certificate Administrator shall execute and deliver such other instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee, custodian or certificate administrator, as the case may be, all such rights, powers, duties and obligations. Anything herein to the contrary notwithstanding, in no event shall the combined fees payable to the Certificate Administrator or a successor certificate administrator (inclusive of fees paid to the Trustee (or successor trustee) and the Custodian (or successor custodian)) exceed the Certificate Administrator Fee.
(b) No successor trustee, custodian or certificate administrator shall accept appointment as provided in this Section unless at the time of such appointment such successor trustee, custodian or certificate administrator, as the case may be, shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor trustee, custodian or certificate administrator as provided in this Section, the successor trustee, custodian or certificate administrator shall promptly provide written notice to the 17g-5 Information Provider and mail notice of the succession of such Trustee, Custodian or Certificate Administrator hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register and to each holder of a Serviced B Note or Serviced Companion Loan. The expenses of such mailing shall be borne by the successor trustee, custodian or certificate administrator. If the successor trustee, custodian or certificate administrator fails to mail such notice within ten (10) days after acceptance of appointment by the successor trustee, custodian or certificate administrator, the Master Servicer shall cause such notice to be mailed at the expense of the successor trustee, custodian or certificate administrator, as applicable.
Section 7.8 Merger or Consolidation of Trustee, Custodian or Certificate Administrator. Any Person into which the Trustee, Custodian or Certificate Administrator may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Trustee, Custodian or Certificate
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Administrator shall be a party, or any Persons succeeding to the corporate trust business of such Trustee, Custodian or Certificate Administrator, shall be the successor of such Trustee, Custodian or Certificate Administrator, as the case may be, hereunder, as applicable, provided that (i) such Person shall be eligible under the provisions of Section 7.5 and (ii) if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, such appointment shall have been consented to by the Depositor or the depositor under such Other Companion Loan Pooling and Servicing Agreement, as the case may be (which consent shall not be unreasonably withheld), without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The successor or surviving Person shall provide prompt notice of the merger or consolidation to the other parties hereto and the 17g-5 Information Provider.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee, the Depositor or, in the case of the Trust, the Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates shall each have the power from time to time to appoint one or more Persons to act either as co-trustees jointly with the Trustee or as separate trustees, for the purpose of holding title to, foreclosing or otherwise taking action with respect to any Mortgage Loan outside the state where the Trustee has its principal place of business where such separate trustee or co-trustee is necessary or advisable (or the Trustee is advised by the Master Servicer or Special Servicer that such separate trustee or co-trustee is necessary or advisable) under the laws of any state in which a property securing a Mortgage Loan is located or for the purpose of otherwise conforming to any legal requirement, restriction or condition in any state in which a property securing a Mortgage Loan is located or in any state in which any portion of the Trust is located. The separate trustees, co-trustees, or custodians so appointed shall be trustees or custodians for the benefit of all the Certificateholders, shall have such powers, rights and remedies as shall be specified in the instrument of appointment and shall be deemed to have accepted the provisions of this Agreement; provided that no such appointment shall, or shall be deemed to, constitute the appointee an agent of the Trustee; provided, further, that the Trustee shall not be liable for the actions of any co-trustee or separate trustee appointed by it with due care and shall have no liability for the actions of any co-trustee or separate trustee appointed by the Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee, the Custodian or the Certificate Administrator, as the case may be, may from time to time appoint one or more independent third-party agents to perform all or any portion of its administrative duties hereunder (i.e., collection and distribution of funds, preparation and dissemination of reports, monitoring compliance, etc.). The Trustee, the Custodian or the Certificate Administrator, as the case may be, shall supervise and oversee such agents appointed by it. The terms of any arrangement or agreement between the Trustee, the Custodian or the Certificate Administrator, as the case may be, and such agent, may be terminated, without cause and without the payment of any termination fees if the Trustee, the Custodian or the Certificate Administrator, as the case may be, is terminated in accordance with this Agreement. In addition, neither the Trust nor the Certificateholders shall have any liability or direct obligation to such agent. Notwithstanding the terms of any such agreement, the
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Trustee, the Custodian or the Certificate Administrator, as the case may be, shall remain at all times obligated and liable to the Trust and the Certificateholders for performing its duties hereunder and for all acts of its agents.
(c) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the Trustee in respect of the receipt, custody and payment of moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer hereunder) the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations, including the holding of title to the Trust or any portion thereof in any such jurisdiction, shall be exercised and performed by such separate trustee or co-trustee;
(iii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iv) the Trustee or, in the case of the Trust, the Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates may at any time accept the resignation of or remove any separate trustee or co-trustee, so appointed by it or them, if such resignation or removal does not violate the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
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(f) No separate trustee or co-trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 7.5 hereof and no notice to Certificateholders of the appointment of any separate trustee or co-trustee hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the extent necessary to fulfill the Trustee’s obligations hereunder.
(h) The reasonable compensation of the co-trustees or separate trustees appointed shall be paid by the Trust pursuant to this Section 7.9 to the extent, and in accordance with the standards, specified in Section 7.12 hereof.
Section 7.10 Authenticating Agents.
(a) The Certificate Administrator shall serve as the initial Authenticating Agent hereunder for the purpose of executing and authenticating Certificates. Any successor Authenticating Agent must be acceptable to the Depositor and must be a corporation, national bank or national banking association organized and doing business under the laws of the United States of America or of any state and having a principal office and place of business in the Borough of Manhattan in the City and State of New York, having a combined capital and surplus of at least $50,000,000, authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Authenticating Agent shall be a party, or any Person succeeding to the corporate agency business of the Authenticating Agent, shall continue to be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least thirty (30) days’ advance written notice of resignation to the Trustee, the Custodian, the Certificate Administrator and the Depositor. The Trustee may at any time terminate the agency of the Authenticating Agent by giving written notice of termination to the Authenticating Agent and the Depositor; provided that the Trustee may not terminate the Certificate Administrator as Authenticating Agent unless the Certificate Administrator shall be removed as Certificate Administrator hereunder. Upon receiving a notice of resignation or upon such a termination, or in case at any time the Authenticating Agent shall cease to be eligible in accordance with the provisions of Section 7.10(a), the Trustee may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Depositor and shall mail notice of such appointment to all Holders of Certificates. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. No such Authenticating Agent shall be appointed unless eligible under the provisions of Section 7.10(a). No Authenticating Agent shall have responsibility or liability for any action taken by it as such at the direction of the Trustee.
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Section 7.11 Indemnification of Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee (whether individually, or in its capacity as Trustee), the Custodian, the Certificate Registrar and the Certificate Administrator and each of their respective directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action incurred without negligence, bad faith or willful misconduct on their respective part, arising out of, or in connection with this Agreement, the Mortgage Loans, the Certificates and the acceptance or administration of the trusts or duties created hereunder (including, without limitation, any unanticipated loss, liability or expense incurred in connection with any action or inaction of the Master Servicer, the Special Servicer, the Trust Advisor or the Depositor or of each other such Person hereunder but only to the extent the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, is unable to recover within a reasonable period of time such amount from such third party pursuant to this Agreement) including the costs and expenses of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, and the Trustee, the Custodian, the Certificate Registrar and the Certificate Administrator and each of their respective directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for any unanticipated loss, liability or expense incurred without negligence, bad faith or willful misconduct in connection with the provision by the Trustee, the Custodian, the Certificate Registrar and the Certificate Administrator of the reports required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall have given the Depositor, the Master Servicer, the Sellers, each other and the Holders of the Certificates written notice thereof promptly after a Responsible Officer of the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall have actual knowledge thereof; provided that failure to give such notice to the Depositor, Master Servicer, the Sellers, each other and the Holders of Certificates shall not affect the Trustee’s, the Custodian’s, Certificate Registrar’s or Certificate Administrator’s, as the case may be, rights to indemnification herein unless the Depositor’s defense of such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section 7.11, the Trust shall not be liable for settlement of any such claim by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, entered into without the prior consent of the Depositor (unless the Depositor is in bankruptcy or otherwise legally unable to consent), which consent shall not be unreasonably withheld.
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(b) The provisions of this Section 7.11 shall survive any termination of this Agreement and the resignation or removal of the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees or agents and Controlling Persons from and against any loss, claim, damage or liability, and any action in respect thereof, to which the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees or agents or Controlling Persons may become subject under the Securities Act, insofar as such loss, claim, damage, liability or action arises out of, or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus, or arises out of, or is based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and shall reimburse the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees, agents or Controlling Persons for any legal and other expenses reasonably incurred by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, or any such director, officer, employee, agent or Controlling Person in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action; provided, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission made in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus in reliance upon and in conformity with written information concerning the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, furnished to the Depositor by or on behalf of such person specifically for inclusion therein. It is hereby expressly agreed that the only written information provided by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, for inclusion in the Private Placement Memorandum, the Preliminary Prospectus and the Final Prospectus is, in the case of the Trustee, the information for which the Trustee indemnifies certain parties pursuant to the Trustee Indemnification Agreement, in the case of the Custodian, the information for which the Custodian indemnifies certain parties pursuant to the Custodian Indemnification Agreement and, in the case of the Certificate Administrator, the information for which the Certificate Administrator indemnifies certain parties pursuant to the Certificate Administrator Indemnification Agreement. The Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall immediately notify the Depositor, the Underwriters, the Initial Purchasers and the Sellers if a claim is made by a third party that would entitle such Person, its directors, officers, employees, agents or Controlling Persons to indemnification under this Section 7.11(c), whereupon the Depositor shall assume the defense of any such claim (with counsel reasonably satisfactory to such person) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Depositor shall not affect any rights the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, or any of their respective directors, officers, employees, agents or Controlling Persons may have to
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indemnification under this Section 7.11(c), unless the Depositor’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or removal of the Trustee, the Custodian or the Certificate Administrator. The Depositor shall not be indemnified by the Trust for any expenses incurred by the Depositor arising from any violation or alleged violation of the Securities Act or Exchange Act by the Depositor.
(d) The Custodian agrees to indemnify the Depositor, the Trust, the Trustee, the Certificate Administrator and any director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Custodian’s duties hereunder or by reason of negligent disregard of the Custodian’s obligations and duties hereunder (including a breach of such obligations and duties, a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Custodian is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor custodian.
(e) Each of the Trustee and the Certificate Administrator agrees (severally and not jointly) to indemnify the Depositor, the Trust, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Custodian and any director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of such indemnifying party’s duties hereunder or by reason of negligent disregard of such indemnifying party’s obligations and duties hereunder (including a breach of such obligations, a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Trustee or Certificate Administrator, as applicable, is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor trustee or certificate administrator, as applicable.
Section 7.12 Fees and Expenses of Trustee, the Custodian and the Certificate Administrator. The Trustee shall be entitled to receive the Trustee Fee, the Certificate Administrator shall be entitled to receive the Certificate Administrator Fee (other than the portions thereof constituting the Trustee Fee and the Custodian Fee) and the Custodian shall be entitled to receive the Custodian Fee, pursuant to Section 5.3(b)(ii) (which shall not be limited by any provision of law with respect to the compensation of a trustee of an express trust), for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties, respectively, hereunder of the Trustee, the Custodian and the Certificate Administrator. Each of the Trustee, the Custodian and the Certificate Administrator shall also be entitled to recover from the Trust all reasonable unanticipated out-of-pocket expenses and disbursements incurred or made by such party in
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connection with the exercise of such party’s rights or duties under this Agreement (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and other Persons not regularly in its employ), not including expenses incurred in the ordinary course of performing its duties (including allocable overhead expenses) as Trustee, the Custodian or Certificate Administrator, respectively, hereunder, and except any such expense, disbursement or advance as may arise from the negligence, willful misconduct or bad faith of such Person or which is the responsibility of the Holders of the Certificates hereunder. The provisions of this Section 7.12 shall survive any termination of this Agreement and the resignation or removal of the Trustee, the Custodian or the Certificate Administrator.
Section 7.13 Collection of Moneys. Except as otherwise expressly provided in this Agreement, the Trustee, the Custodian and the Certificate Administrator may demand payment or delivery of, and shall receive and collect, all money and other property payable to or receivable by the Trustee, the Custodian or the Certificate Administrator, as the case may be, pursuant to this Agreement. The Trustee, the Custodian or the Certificate Administrator, as the case may be, shall hold all such money and property received by it as part of the Trust and shall distribute it as provided in this Agreement. If the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall not have timely received amounts to be remitted with respect to the Mortgage Loans from the Master Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall request the Master Servicer to make such distribution as promptly as practicable or legally permitted. If the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall subsequently receive any such amount, it may withdraw such request.
Section 7.14 Trustee To Act; Appointment of Successor.
(a) On and after the time the Master Servicer is terminated or resigns pursuant to this Agreement, and if no successor to the terminated or resigning Master Servicer is otherwise appointed hereunder, the Trustee shall be the successor in all respects to the Master Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Master Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Master Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder. In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Master Servicer contained in this Agreement or (ii) any obligation incurred by the Master Servicer prior to its termination or resignation (including, without limitation, the Master Servicer’s obligation to repay losses resulting from the investment of funds in any account established under this Agreement). In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Master Servicer in this Agreement. As compensation therefor, the Trustee shall be entitled to receive all the compensation payable to the Master Servicer set forth in this Agreement, including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint any established commercial or multifamily mortgage finance institution,
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servicer or master servicer or mortgage servicing institution having a net worth of not less than $15,000,000, meeting such other standards for a successor master servicer as are set forth in this Agreement and with respect to which the Trustee has provided a Rating Agency Communication to each Rating Agency, as the successor to the Master Servicer hereunder in the assumption of all of the responsibilities, duties or liabilities of a servicer as Master Servicer hereunder. Pending any such appointment, the Trustee shall act as the Master Servicer as hereinabove provided. Any entity designated by the Trustee as successor Master Servicer may be an Affiliate of the Trustee; provided that, such Affiliate must meet the standards for the Master Servicer as set forth herein. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall agree subject to Section 8.10, provided that no such compensation shall be in excess of that permitted to be paid to the Master Servicer under this Agreement. The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession. The Master Servicer shall cooperate with the Trustee and any successor servicer in effecting the termination of the Master Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the Trustee and successor servicer all documents and records in its possession in electronic or other form reasonably requested by the successor servicer to enable the successor servicer to assume the Master Servicer’s functions hereunder and the transfer to the Trustee or such successor servicer of all amounts which shall at the time be or should have been deposited by the Master Servicer in the Collection Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Master Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other successor servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer. The Trustee shall be reimbursed by the Trust for all of its out-of-pocket expenses incurred in connection with obtaining such successor Master Servicer within thirty (30) days of the Trustee’s submission of an invoice with respect thereto, to the extent such expenses have not been reimbursed by the Master Servicer as provided herein; and such expenses paid by the Trust shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant to this Agreement, in accordance with Section 9.30, or resigns pursuant to this Agreement, and if a successor to the terminated or resigning Special Servicer is not otherwise appointed hereunder, the Trustee shall be the successor in all respects to the Special Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Special Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Special Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder. In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Special Servicer contained in this Agreement or (ii) any obligation incurred by the Special Servicer prior to its termination or resignation. In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Special Servicer in this Agreement. As compensation therefor, the Trustee shall be entitled to receive all the
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compensation payable to the Special Servicer set forth in this Agreement, including, without limitation the Special Servicer Compensation (other than any Workout Fee payable to the predecessor Special Servicer pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be unwilling to so act, or shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint, any established commercial or multifamily mortgage finance institution, special servicer or mortgage servicing institution having a net worth of not less than $15,000,000, and meeting such other standards for a successor Special Servicer as are set forth in Section 9.30(g), and with respect to which the Trustee has provided a Rating Agency Communication to each Rating Agency, as the successor to the Special Servicer hereunder in the assumption of all of the responsibilities, duties or liabilities of a special servicer as Special Servicer hereunder. Pending any such appointment, the Trustee shall act as the Special Servicer as hereinabove provided. Any entity designated by the Trustee as successor Special Servicer may be an Affiliate of the Trustee; provided that, such Affiliate must meet the standards for a successor Special Servicer set forth herein. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall agree; provided that no such compensation shall be in excess of that permitted to the Special Servicer under this Agreement. The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession. The Special Servicer shall cooperate with the Trustee and any successor Special Servicer in effecting the termination of the Special Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors under Specially Serviced Mortgage Loans of the assignment of the special servicing function and providing the Trustee and successor Special Servicer all documents and records in its possession in electronic or other form reasonably requested by the successor Special Servicer to enable the successor Special Servicer to assume the Special Servicer’s functions hereunder and the transfer to the Trustee or such successor Special Servicer of all amounts which shall at the time be or should have been deposited by the Special Servicer in the Collection Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other successor Special Servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Special Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Special Servicer. The Trustee shall be reimbursed by the Trust for all of its out-of-pocket expenses incurred in connection with obtaining such successor Special Servicer within thirty (30) days of submission of an invoice with respect thereto but only to the extent such expenses have not been reimbursed by the Special Servicer as provided herein; and such expenses paid by the Trust shall be deemed to be an Additional Trust Expense. During any Subordinate Control Period, any appointment of a successor Special Servicer by the Trustee (or the Trustee’s acting as successor Special Servicer) shall be subject to the rights of the Controlling Class Representative to terminate and replace such successor Special Servicer, with or without cause, in accordance with this Agreement (including Section 9.30).
Section 7.15 Notification to Holders. Upon termination of, or a Servicer Termination Event by, the Master Servicer, the Certificate Administrator, the Custodian or the
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Special Servicer, or appointment of a successor to the Master Servicer, the Custodian, the Certificate Administrator or the Special Servicer, the Trustee shall promptly provide written notice to the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period or any Collective Consultation Period), the Trust Advisor, the Depositor, the Initial Purchasers, the Underwriters, the Sellers and the Certificateholders at their respective addresses appearing on the Certificate Register.
Section 7.16 Representations and Warranties of the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement have been duly authorized by all necessary action on the part of the Trustee; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Trustee or its properties that would materially and adversely affect the Trustee’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Trustee, or (iii) the terms of any material agreement or instrument to which the Trustee is a party or by which it is bound; and the Trustee is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Trustee to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Trustee and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
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(v) no litigation is pending or, to the Trustee’s knowledge, threatened, against the Trustee that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Trustee to perform under the terms of this Agreement.
(b) The Custodian hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Custodian is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Custodian of this Agreement have been duly authorized by all necessary action on the part of the Custodian; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Custodian or its properties that would materially and adversely affect the Custodian’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Custodian, or (iii) the terms of any material agreement or instrument to which the Custodian is a party or by which it is bound; and the Custodian is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Custodian of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Custodian to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Custodian and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Custodian, enforceable against the Custodian in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Custodian’s knowledge, threatened, against the Custodian that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Custodian to perform under the terms of this Agreement.
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(c) The Certificate Administrator hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Certificate Administrator is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Certificate Administrator of this Agreement have been duly authorized by all necessary action on the part of the Certificate Administrator; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Certificate Administrator or its properties that would materially and adversely affect the Certificate Administrator’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Certificate Administrator, or (iii) the terms of any material agreement or instrument to which the Certificate Administrator is a party or by which it is bound; and the Certificate Administrator is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Certificate Administrator of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Certificate Administrator to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Certificate Administrator and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the best of the Certificate Administrator’s knowledge, threatened, against the Certificate Administrator that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Certificate Administrator to perform under the terms of this Agreement.
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Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee, the Custodian and the Certificate Administrator. Each of the Trustee, the Custodian and the Certificate Administrator, at its own respective expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified Insurer in form and in amount customary for trustees, custodians or certificate administrators in similar transactions (unless the Trustee, the Custodian or the Certificate Administrator, as the case may be, self-insures as provided below). If any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Trustee, the Custodian or the Certificate Administrator, as the case may be, is not less than “A3” as rated by Moody’s and not less than “A-” as rated by Fitch, the Trustee, the Custodian or the Certificate Administrator, as the case may be, may self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Capacities. The rights, privileges, protections and indemnities afforded to the Trustee, the Custodian or the Certificate Administrator in such capacity pursuant to this Agreement shall also be for the benefit of the Trustee, the Custodian or the Certificate Administrator, as the case may be, in each other capacity that such Person serves hereunder, including as Certificate Registrar, Authenticating Agent and 17g-5 Information Provider, as applicable.
ARTICLE
VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.
(a) Subject to the express provisions of this Agreement, for and on behalf of the Trust and for the benefit of the Certificateholders as a whole, and, solely as it relates to any A/B Whole Loan, for the benefit of the holder of the related Serviced B Note and, solely as it relates to any Loan Pair, for the benefit of the holder of the related Serviced Companion Loan and any Serviced B Note, the Master Servicer shall service and administer the Mortgage Loans, any Serviced B Note and any Serviced Companion Loan in accordance with the Servicing Standard and the terms of this Agreement; provided that, notwithstanding anything herein to the contrary, the Special Servicer shall process all Major Decisions and Special Servicer Decisions with respect to the Mortgage Loans (other than Non-Serviced Mortgage Loans and except with respect to sub-clauses (i) and (iii) of clause (b) in the definition of Special Servicer Decisions, which shall be processed by the Master Servicer), any Serviced B Note and any Serviced Companion Loan (except that the Master Servicer and the Special Servicer may mutually agree that the Master Servicer shall process, and obtain the prior written consent of the Special Servicer with respect to, any such Major Decision or Special Servicer Decision with respect to Mortgage Loans (other than Non-Serviced Loans) that are not Specially Serviced Mortgage Loans); provided, further, that each Non-Serviced Mortgage Loan shall be serviced by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer in accordance with the related Non-Serviced Mortgage Loan
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Pooling and Servicing Agreement. Certain of the provisions of this Article VIII make explicit reference to their applicability to Mortgage Loans, any Serviced B Note and any Serviced Companion Loan; notwithstanding such explicit references, references to “Mortgage Loans” contained in this Article VIII, unless otherwise specified, shall be construed to refer also to such Serviced B Note and Serviced Companion Loan (but any other terms that are defined in Article I and used in this Article VIII shall be construed according to such definitions without regard to this sentence).
In connection with such servicing and administration, the Master Servicer shall seek to maximize the timely collection of principal and interest on the Mortgage Notes in the best economic interests of the Certificateholders as a whole (or, in the case of any A/B Whole Loan or Loan Pair the Certificateholders and the holder of the related Serviced B Note and/or Serviced Companion Loan, as applicable, all taken as a collective whole); provided, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer of the collectability of payments on the Mortgage Loans or shall be construed as impairing or adversely affecting any rights or benefits specifically provided by this Agreement to the Master Servicer, including with respect to Master Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause (x) of this subsection (b), and the Special Servicer, in the case of an event specified in clause (y) of this subsection (b), shall each send a written notice to the other and to the Trustee, the Custodian, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Depositor, the applicable Seller and, in the case of an A/B Whole Loan, the holder of the related Serviced B Note and, in the case of a Loan Pair, the holder of the related Serviced Companion Loan, within five (5) Business Days after becoming aware (x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan (and, in the case of an A Note (or Serviced B Note) that was a Specially Serviced Mortgage Loan, any related Serviced B Note (or A Note) has also become a Rehabilitated Mortgage Loan and, in the case of a Serviced Pari Passu Mortgage Loan (or Serviced Companion Loan) that was a Specially Serviced Mortgage Loan, its related Serviced Companion Loan (or Serviced Pari Passu Mortgage Loan) has also become a Rehabilitated Mortgage Loan, which notice shall be effective upon receipt and shall identify the applicable Mortgage Loan and, in the case of an event specified in clause (x) of this subsection (b), the Servicing Transfer Event that occurred. After the transfer of servicing with respect to any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with the Servicing Standard, the Master Servicer shall notify, in writing, the Mortgagor under such Specially Serviced Mortgage Loan transferred to the Special Servicer, of such transfer.
(c) With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) that is subject to an Environmental Insurance Policy, for as long as it is not a Specially Serviced Mortgage Loan, if the Master Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, the Master Servicer shall notify the Special Servicer to such effect and the Master Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is
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entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer or the Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a Non-Specially Serviced Mortgage Loan (other than a Non-Serviced Mortgage Loan), the Special Servicer shall give prompt written notice of such extension to the insurer under the Environmental Insurance Policy (if any) and shall execute such documents as are reasonably required by such insurer to procure an extension of such policy (if available). The Special Servicer shall provide copies of any such notice or documents to the Master Servicer promptly following the execution or delivery thereof, as applicable.
(e) The parties hereto acknowledge that each Serviced Pari Passu Mortgage Loan and its related Serviced Companion Loan and any related Serviced B note and each A Note and its related Serviced B Note is subject to the terms and conditions of the related Intercreditor Agreement, and each such party agrees that the provisions of each Intercreditor Agreement that are required by their terms to be set forth in this Agreement are hereby incorporated herein. With respect to each Loan Pair and each A/B Whole Loan, the Trustee, the Master Servicer and the Special Servicer recognize the respective rights and obligations of the Trust and the holders of each Serviced Companion Loan and/or Serviced B Note, as applicable, under the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents), including with respect to the allocation of collections on or in respect of any Serviced Pari Passu Mortgage Loan, Serviced Companion Loan, A Note and Serviced B Note, as the case may be, in accordance with the related Intercreditor Agreement. The Master Servicer shall comply with the applicable provisions of each Intercreditor Agreement, and if any Serviced Pari Passu Mortgage Loan, Serviced Companion Loan, A Note or Serviced B Note are then Specially Serviced Mortgage Loans, the Special Servicer shall comply with the applicable provisions of the related Intercreditor Agreement. The parties hereto agree that any conflict between the terms of this Agreement and the terms of any Intercreditor Agreement shall be resolved in favor of the Intercreditor Agreement.
(f) Promptly following the Closing Date (or, with respect to the 261 Fifth Avenue Mortgage Loan, the 261 Fifth Avenue Companion Loan Securitization Date), the Master Servicer shall send written notice to each Non-Serviced Mortgage Loan Master Servicer in accordance with the provisions of the related Intercreditor Agreement including payment instructions for distributions on such Non-Serviced Mortgage Loan and stating that, as of such date, the Trustee is the holder of the applicable Non-Serviced Mortgage Loan, and directing such Non-Serviced Mortgage Loan Master Servicer to remit to the Master Servicer all amounts payable to, and directing such Non-Serviced Mortgage Loan Master Servicer to forward, deliver or otherwise make available, as the case may be, to the Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, such holder of the applicable Non-Serviced Mortgage Loan under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement. On the 261 Fifth Avenue Companion Loan Securitization Date, in connection with the transfer of servicing (including transmittal of the foregoing information as part of that servicing transfer) to the related Non-Serviced Mortgage
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Loan Master Servicer, the Master Servicer shall be deemed to have provided such written notice in respect of the 261 Fifth Avenue Mortgage Loan. Notwithstanding anything to the contrary herein, the Master Servicer shall be deemed to have provided to the related Non-Serviced Mortgage Loan Master Servicer the notices described in this clause (f) if it is the same entity as such Non-Serviced Mortgage Loan Master Servicer.
(g) Each Non-Serviced Mortgage Loan shall be serviced and administered by the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement, except as otherwise specifically provided in this Agreement. If any Non-Serviced Companion Loan that is an asset under the trust created by the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement is removed from the pool of mortgage loans created under such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise terminated, the servicing of the Non-Serviced Mortgage Loan shall be transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor Agreement, and shall be serviced and administered by a successor servicing agreement, which shall have similar provisions to such Non-Serviced Mortgage Loan Pooling and Servicing Agreement to the extent set forth in the related Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be subject to the delivery by the Master Servicer of a Rating Agency Communication to each Rating Agency.
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer. The Master Servicer, at its expense, shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master Servicer self-insures as provided below) and be in form and amount consistent with the Servicing Standard. If any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, then the Master Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Master Servicer is not less than “A3” by Moody’s or not less than “A-” as rated by Fitch (or an A.M. Best Company, Inc. equivalent), the Master Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicer’s General Power and Duties.
(a) The Master Servicer shall (except as otherwise expressly set forth herein to the contrary) service and administer the Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and 10.3 and Article XII hereof and as otherwise provided herein and by the Code, have full power and authority to do any and all things which it may deem necessary or desirable in connection with such servicing and administration in accordance with the Servicing Standard (in the case of any A/B Whole Loan and any Loan Pair, subject to the applicable Intercreditor Agreement and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer, as
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applicable). To the extent consistent with the foregoing and subject to any express limitations and provisions set forth in this Agreement (and, in the case of any A/B Whole Loan and any Loan Pair, subject to the applicable Intercreditor Agreement and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), including Section 10.3, such power and authority shall include, without limitation, any right to process Major Decisions and Special Servicer Decisions as mutually agreed between the Master Servicer and the Special Servicer pursuant to the terms hereof (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process), the right, subject to the terms hereof, to perform the following actions (solely to the extent they do not constitute Major Decisions or Special Servicer Decisions): (A) to execute and deliver, on behalf of the Certificateholders (and in connection with any Serviced B Note, the holder of the Serviced B Note and, in connection with any Loan Pair, the holder of the Serviced Companion Loan) and the Trustee, customary consents or waivers and other instruments and documents (including, without limitation, estoppel certificates, financing statements, continuation statements, title endorsements and reports and other documents and instruments necessary to preserve and maintain the lien on the related Mortgaged Property and related collateral), (B) to consent to assignments and assumptions or substitutions, and transfers of interest of any Mortgagor, in each case subject to and in accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any subordinate financings to be secured by any related Mortgaged Property to the extent that such consent is required pursuant to the terms of the related Mortgage or which otherwise is required, and subject to Section 8.7, to consent to any mezzanine debt to the extent such consent is required pursuant to the terms of the related Mortgage, (E) to consent to the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise and to administer and monitor the application of such proceeds and awards in accordance with the terms of the Mortgage Loan as the Master Servicer deems reasonable under the circumstances, (F) to execute and deliver, on behalf of the Certificateholders (and the holders of any Serviced B Note and Serviced Companion Loan) and the Trustee, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties, including agreements and requests by the Mortgagor with respect to modifications of the standards of operation and management of the Mortgaged Properties or the replacement of asset managers, (G) to consent to any operation or action under a Mortgage Loan that is contemplated or permitted under a Mortgage or other documents evidencing or securing the applicable Mortgage Loan (either as a matter of right or upon satisfaction of specified conditions), (H) to obtain, release, waive or modify any term other than a Money Term of a Mortgage Loan and related documents subject to and to the extent permitted by Section 8.18, (I) to exercise all rights, powers and privileges granted or provided to the holder of the Mortgage Notes, any Serviced Companion Loan and any Serviced B Note under the terms of the Mortgage, including all rights of consent or approval thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter into lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements which may be requested by the Mortgagor or the Mortgagor’s tenants, (K) to join the Mortgagor in granting, modifying or releasing any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties to the extent such does not adversely
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affect the value of the related Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of itself, the Trustee, the Trust (and the holders of any Serviced B Note and Serviced Companion Loan) or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties, and (M) to hold in accordance with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing clauses (A) through (M) are referred to collectively as “Master Servicer Consent Matters.” Notwithstanding the above, the Master Servicer shall have no power to (i) waive any Prepayment Premiums, (ii) consent to any modification of a Money Term of a Mortgage Loan or (iii) to exercise such rights or take any of the foregoing actions in violation of Section 10.3 or the terms and conditions of any related Intercreditor Agreement, or otherwise in contravention of the Controlling Class Representative’s or any related Loan-Specific Directing Holder’s, as applicable, rights to consent to or consult in respect of any such matters pursuant to this Agreement (subject to the Master Servicer’s duty to service in accordance with the Servicing Standard). Nothing contained in this Agreement shall limit the ability of the Master Servicer or the Special Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property), accept deposits from and otherwise generally engage in any kind of business or dealings with any Mortgagor as though the Master Servicer or the Special Servicer, as applicable, was not a party to this Agreement or to the transactions contemplated hereby; provided, that this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and administer any Mortgage Loan if it has become and continues to be a Specially Serviced Mortgage Loan, except as specifically provided herein. The Master Servicer shall be required to make all calculations and prepare all reports required hereunder with respect to Specially Serviced Mortgage Loans (other than calculations and reports expressly required to be made by the Special Servicer hereunder) as if no Servicing Transfer Event had occurred and shall continue to collect all Scheduled Payments, make Advances as set forth herein and render such incidental services with respect to Specially Serviced Mortgage Loans, all as are specifically provided for herein, but shall have no other servicing or other duties with respect to Specially Serviced Mortgage Loans. Notwithstanding the foregoing, the Master Servicer shall not be liable for its failure to make the calculations or prepare the reports required pursuant to the immediately preceding sentence with respect to any Specially Serviced Mortgage Loan if such failure is directly caused by the Special Servicer’s failure to provide the Master Servicer with the information that it is required to deliver to the Master Servicer pursuant to Section 9.32(a). The Master Servicer shall give notice within three (3) Business Days to the Special Servicer of any collections it receives from any Specially Serviced Mortgage Loans, subject to changes agreed upon from time to time by the Special Servicer and the Master Servicer. The Special Servicer shall instruct the Master Servicer within two (2) Business Days after receiving such notice on how to apply such funds. The Master Servicer within one (1) Business Day after receiving such instructions shall apply such funds in accordance with the Special Servicer’s instructions. Each Mortgage Loan if it becomes a Specially Serviced Mortgage Loan shall continue as such until it becomes a Rehabilitated Mortgage Loan. The Master Servicer shall not be required to initiate extraordinary collection procedures or legal proceedings with respect to any Mortgage Loan or to undertake any pre-foreclosure procedures.
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(c) Concurrently with the execution of this Agreement, the Trustee shall sign a Power of Attorney substantially in the form attached hereto as Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer). From time to time until the termination of the Trust, upon written request from a Servicing Officer for additional powers of attorney from the Trustee to the Master Servicer, the Trustee shall execute and return to the Master Servicer any additional powers of attorney, substantially in the form of Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer) and other documents necessary or appropriate to enable the Master Servicer to service and administer the Mortgage Loans including, without limitation, documents relating to the management, operation, maintenance, repair, leasing or marketing of the Mortgaged Properties. The Master Servicer shall indemnify the Trustee for any costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee, in connection with the intentional or negligent misuse of any such powers of attorney furnished to the Master Servicer by the Trustee. Notwithstanding anything contained herein to the contrary, but subject to Section 9.34 herein, the Master Servicer shall not without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s representative capacity, or (ii) knowingly take any action that causes the Trustee to be registered to do business in any state, provided that the preceding clause (i) shall not apply to the initiation of actions relating to a Mortgage Loan that the Master Servicer is servicing pursuant to its respective duties herein (in which case the Master Servicer shall give prompt prior notice to the Trustee of the initiation of such action). The limitations of the preceding clause shall not be construed to limit any duty or obligation imposed on the Trustee under any other provision of this Agreement. If the Master Servicer receives any notice of a suit, litigation or proceeding in the name of U.S. Bank National Association, either individually (with respect to the Certificates or the transactions contemplated by this Agreement) or in its capacity as Trustee, then the Master Servicer shall promptly forward a copy of same to the Trustee.
(d) The Master Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all payments (including servicing fees, special servicing fees, workout fees and liquidation fees) called for under the terms and provisions of the applicable Mortgage Loans (other than Specially Serviced Mortgage Loans or REO Properties); provided, that with respect to any Non-Serviced Mortgage Loan, such payments shall be collected from the related Non-Serviced Mortgage Loan Master Servicer or Non-Serviced Mortgage Loan Special Servicer, as applicable.
(e) The Master Servicer shall segregate and hold all funds collected and received pursuant to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) constituting Escrow Amounts separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Amounts shall be deposited within one (1) Business Day after receipt. Each Escrow Account shall be an Eligible Account, to the extent permitted under the related Mortgage Loan documents. The Master Servicer shall also deposit into each Escrow Account any amounts representing losses on Eligible Investments pursuant to the immediately succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow Account shall be maintained in accordance with the requirements
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of the related Mortgage Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow Account may be made only for the following purposes (in no order of priority):
(i) to effect timely payments of items constituting Escrow Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Collection Account (or any sub-account thereof) to reimburse the Master Servicer for any Advance (or the Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from amounts received with respect to the related Mortgage Loan which represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the related Mortgagor under applicable law or by the terms of the related Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in an Escrow Account that were not required to be deposited therein or to refund amounts to the Mortgagors determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master Servicer may direct any depository institution or trust company in which the Escrow Accounts are maintained to invest the funds held therein in one or more Eligible Investments; provided, that such funds shall be either (x) immediately available or (y) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the Escrow Account was established; (ii) the Master Servicer shall be entitled to all income and gain realized from any such investment of funds as additional servicing compensation; and (iii) the Master Servicer shall deposit from its own funds in the applicable Escrow Account the amount of any loss incurred in respect of any such investment of funds immediately upon the realization of such loss; provided, that unless otherwise set forth in the related Mortgage Loan documents, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person or an Affiliate thereof that made the relevant investment. The Master Servicer shall not direct the investment of funds held in any Escrow Account and retain the income and gain realized therefrom if the terms of the related Mortgage Loan or applicable law permit the Mortgagor to be entitled to the income and gain realized from the investment of funds deposited therein, and the Master Servicer shall not be required to invest
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amounts on deposit in Escrow Accounts in Eligible Investments or deposit such amounts in Eligible Accounts to the extent that the Master Servicer is required by either law or under the terms of any related Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the deposit or investment of) such amounts in another type of investments or accounts. If the Master Servicer is not entitled to direct the investment of such funds, then: (1) the Master Servicer shall direct the depository institution or trust company in which such Escrow Accounts are maintained to invest the funds held therein in accordance with the Mortgagor’s written investment instructions, if the terms of the related Mortgage Loan or applicable law require the Master Servicer to invest such funds in accordance with the Mortgagor’s directions; and (2) in the absence of appropriate written instructions from the Mortgagor, the Master Servicer shall have no obligation to direct the investment of such funds; provided, that if such funds shall be either (y) immediately available or (z) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the Escrow Account was established, then the Master Servicer shall have no liability for any loss in investments of such funds that are invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special Servicer to the Trustee, the Certificate Administrator and the Custodian and to each other under this Agreement is intended by the parties to be that of an independent contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan), if required by the terms of the related Mortgage Loan documents, any Lock-Box Agreement or similar agreement, the Master Servicer shall establish and maintain, in accordance with the Servicing Standard, one or more lock-box, cash management or similar accounts (“Lock-Box Accounts”) to be held outside the Trust and maintained by the Master Servicer in accordance with the terms of the related Mortgage. No Lock-Box Account is required to be an Eligible Account, unless otherwise required pursuant to the related Mortgage Loan documents. The Master Servicer shall apply the funds deposited in such accounts in accordance with terms of the related Mortgage Loan documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) Subject to Section 8.18, the Master Servicer shall process all defeasances of Mortgage Loans (other than any Non-Serviced Mortgage Loan), Serviced B Notes and Serviced Companion Loans in accordance with the terms of the related Mortgage Loan documents, and shall be entitled to any defeasance fees paid relating thereto (provided, that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that the Special Servicer is entitled to under this Agreement). The Master Servicer shall not permit defeasance (or partial defeasance if permitted under the related Mortgage Loan documents) of any Mortgage Loan on or before the second (2nd) anniversary of the Closing Date, or in the case of a Serviced Companion Loan the second (2nd) anniversary of the startup date of any REMIC holding such Serviced Companion Loan, unless such defeasance will not result in an Adverse REMIC Event (or in the case of a Serviced Companion Loan an adverse REMIC event for any REMIC holding such Serviced Companion Loan) and the Master Servicer has received an Opinion of Counsel to such effect (which Opinion of Counsel, to the extent not inconsistent with the related Mortgage Loan documents, shall be paid for by the related Mortgagor) and all items in the following sentence
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have been satisfied. Subsequent to the second (2nd) anniversary of the Closing Date, or in the case of a Serviced Companion Loan the second (2nd) anniversary of the startup date of any REMIC holding such Serviced Companion Loan, the Master Servicer, in connection with the defeasance of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced B Note or a Serviced Companion Loan shall (to the extent it is not inconsistent with the Servicing Standard): (i) require that the defeasance collateral consists of Government Securities that are acceptable as defeasance collateral under the current guidelines of the Rating Agencies, (ii) determine that the defeasance will not result in an Adverse REMIC Event (or in the case of a Serviced Companion Loan an adverse REMIC event for any REMIC holding such Serviced Companion Loan), (iii) either (A) require that the related Mortgagor designate a Single-Purpose Entity to own the Defeasance Collateral (subject to customary qualifications) or (B) establish a Single-Purpose Entity to hold all Defeasance Collateral relating to the Defeasance Loans, (iv) request and receive from the Mortgagor (A) an opinion of counsel that the Trustee will have a perfected, first priority security interest in such Defeasance Collateral and (B) written confirmation from a firm of independent accountants stating that payments made on such Defeasance Collateral in accordance with the terms thereof will be sufficient to pay the subject Mortgage Loan, and if applicable the related Serviced B Note and/or Serviced Companion Loan, (or the defeased portion thereof in connection with a partial defeasance) in full on or before its Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to timely pay each subsequent Scheduled Payment and (v) provide a Rating Agency Communication to each Rating Agency. Any customary and reasonable out-of-pocket expense incurred by the Master Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other pertinent document, if so allowed by the terms of such documents. Notwithstanding anything herein or in the related Mortgage Loan documents to the contrary (but subject to Section 8.18), the Master Servicer may accept as Defeasance Collateral Government Securities that are rated below “AAA” (or its equivalent) by any NRSRO notwithstanding any requirements in the related Mortgage Loan documents that require such Defeasance Collateral to be rated “AAA” (or its equivalent) by the applicable NRSROs; provided, that, in any case, the Master Servicer has received an Opinion of Counsel that acceptance of such Defeasance Collateral will not cause an Adverse REMIC Event (which Opinion of Counsel, to the extent not inconsistent with the related Mortgage Loan documents, shall be paid for by the related Mortgagor).
The parties hereto acknowledge that if the payments described in paragraph 32 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the obligation of a Mortgagor to pay the reasonable costs and expenses associated with a defeasance of the related Mortgage Loan are insufficient to reimburse the Trust, including, but not limited to, rating agency fees, then the sole obligation of the related Seller shall be to pay an amount equal to such insufficiency or expense to the extent the related Mortgagor is not required to pay such amount. If any amount is due under the preceding sentence for any Joint Mortgage Loan, then each of the applicable Sellers shall be required to pay only such party’s pro rate share. Promptly upon receipt of notice of such insufficiency or unpaid expense, the Master Servicer shall request the related Seller to make such payment by deposit to the Collection Account.
In the case of a Specially Serviced Mortgage Loan, the Master Servicer shall process any defeasance of such Specially Serviced Mortgage Loan in accordance with the original terms of the respective Mortgage Loan documents, subject to the Special Servicer’s right
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to service Specially Serviced Mortgage Loans, manage any related REO Properties and process Major Decisions and Special Servicer Decisions pursuant to Section 9.1(a) herein.
Notwithstanding the foregoing, BANA has retained the right of the lender under the Mortgage Loan documents with respect to the BANA Loans to receive a percentage of the economic benefit associated with the ownership of the successor borrower, and the right to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral, if there is a defeasance of a BANA Loan (“BANA Lender Successor Borrower Right”). If the Master Servicer receives notice of a defeasance request with respect to a BANA Loan subject to defeasance, the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to BANA or its assignee. Until such time as BANA provides written notice to the contrary, notice of a defeasance of a BANA Loan with a BANA Lender Successor Borrower Right shall be delivered to BANA pursuant to the notice provisions of this Agreement. In addition, to the extent that the Master Servicer receives any amount in respect of a BANA Lender Successor Borrower Right that is required to be remitted to BANA pursuant to the related defeasance documents, the Master Servicer shall remit such amounts to BANA pursuant to the terms of the defeasance documents.
Notwithstanding the foregoing, with respect to the Mortgage Loans originated or acquired by UBSRES and subject to defeasance, UBSRES has retained the right to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral (“UBSRES Seller Defeasance Rights and Obligations”). If the Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan originated or acquired by UBSRES and subject to defeasance, the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to UBSRES or its assignee. Until such time as UBSRES provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with UBSRES Defeasance Rights and Obligations shall be delivered to UBSRES pursuant to the notice provisions of this Agreement. In addition, to the extent that the Master Servicer receives any amount in respect of a UBSRES Defeasance Rights and Obligations that is required to be remitted to UBSRES pursuant to the related defeasance documents, the Master Servicer shall remit such amounts to UBSRES pursuant to the terms of the defeasance documents.
(i) The related Seller shall, as to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) set forth on Schedule III hereto, each of which is secured by the interest of the related Mortgagor under a ground lease, Space Lease or air rights lease, promptly (and, in any event, within forty-five (45) days) after the Closing Date deliver to Master Servicer a form of notice to be delivered by the Master Servicer to the related ground lessor notifying the related lessor of the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and informing such lessor that any notices of default under the related ground lease, Space Lease or air rights lease should thereafter be forwarded to the Master Servicer. The Master Servicer shall promptly forward such notices of default to the Special Servicer. In connection with each such ground lease, Space Lease or air rights lease, the Master Servicer shall promptly, and in any event within the later of (i) thirty (30) days following the receipt of the foregoing notice from the Sellers, and (ii) sixty (60) days following the Closing Date, deliver such notice to the related ground lessor.
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(j) Subject to the rights of the Controlling Class Representative set forth in this Agreement, (A) the Master Servicer shall be entitled (other than with respect to Non-Serviced Mortgage Loans), during any period when (i) the A Note and Serviced B Note under any A/B Whole Loan, (ii) the Serviced Pari Passu Mortgage Loan and Serviced Companion Loan under any Loan Pair, and (iii) any Mortgage Loan with any related mezzanine loan, does not constitute a Specially Serviced Mortgage Loan, and (B) the Special Servicer shall be entitled (other than with respect to Non-Serviced Mortgage Loans), during any period when the notes or other obligations listed in clauses (A)(i) through (iii) above constitute Specially Serviced Mortgage Loans, to exercise the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement to the “Controlling Note Holder”, “Note A Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term as may be set forth in any such Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, and/or the “Servicer” referred to therein. For the avoidance of doubt, the parties acknowledge that neither the Master Servicer nor the Special Servicer shall be entitled or required to exercise the rights and powers granted to any “Note B Holder” or such other analogous term as may be set forth in any such Intercreditor Agreement.
(k) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s obligations and responsibilities hereunder and the Master Servicer’s authority with respect to any Non-Serviced Mortgage Loan are limited by and subject to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer with respect thereto under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall use reasonable efforts consistent with the Servicing Standard to monitor the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and shall use reasonable efforts consistent with the Servicing Standard to enforce the rights of the Trustee (as holder of the Non-Serviced Mortgage Loans) under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement. The Master Servicer shall take such actions as it shall deem reasonably necessary to facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer including, but not limited to, delivering appropriate Requests for Release to the Custodian in order to deliver any portion of the related Mortgage File to the applicable Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 8.4 Sub-Servicing.
(a) The Master Servicer shall supervise, administer, monitor, enforce and oversee the servicing of the applicable Mortgage Loans by any sub-servicer appointed by it. Other than with respect to the agreements with any other sub-servicer (including the Seller Sub-Servicer) under agreements that are in effect on the Closing Date (each a “Surviving Sub-Servicer”), the terms of any arrangement or agreement between the Master Servicer and a
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sub-servicer shall provide that such agreement or arrangement may be terminated, without cause and without the payment of any termination fees, by the Trustee if such Master Servicer is terminated in accordance with this Agreement. In addition, none of the Trustee, the Certificate Administrator, the Custodian, the Certificateholders, the holder of any Serviced Companion Loan or the holder of any Serviced B Note shall have any direct obligation or liability (including, without limitation, indemnification obligations) with respect to any sub-servicer. The Master Servicer shall be solely responsible for the payment of compensation to any sub-servicer appointed by it. The Master Servicer shall pay the costs of enforcement against any of its sub-servicers at its own expense, but shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement only to the extent that such recovery exceeds all amounts due in respect of the related Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorney’s fees against the party against whom such enforcement is directed. Notwithstanding the provisions of any primary servicing agreement or sub servicing agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer or a sub servicer, or reference to actions taken through a sub servicer or otherwise, the Master Servicer shall remain obligated and liable to the Trust, the Trustee, the Certificate Administrator, the Custodian, the Special Servicer and the Certificateholders for the servicing and administering of the applicable Mortgage Loans and the Serviced Companion Loans and the Serviced B Notes in accordance with (and subject to the limitations contained within) the provisions of this Agreement without diminution of such obligation or liability by virtue of indemnification from a sub-servicer and to the same extent and under the same terms and conditions as if the Master Servicer alone were servicing and administering such Mortgage Loans, Serviced Companion Loans and Serviced B Note, as applicable. No sub-servicer shall be permitted under any sub-servicing agreement to make material servicing decisions, such as loan modifications or determinations as to the manner or timing of enforcing remedies under the Mortgage Loan documents, without the consent of the Master Servicer, whose consent will be subject to the consent of the Special Servicer to the extent provided in accordance with the terms of this Agreement.
(b) Subject to the limitations of subsection (a), the Master Servicer may appoint one or more sub-servicers to perform all or any portion of its duties hereunder for the benefit of the Trust, the Trustee and the Certificateholders provided that, after the Closing Date, if and for so long as the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, the Master Servicer shall not enter into a sub-servicing agreement with any Prohibited Party.
(c) Notwithstanding anything herein to the contrary, any sub-servicing agreement with a Sub-Servicer shall provide that (i) the failure of such Sub-Servicer to comply with any of the requirements of Article XIII of this Agreement, (ii) if and for so long as the Trust or, with respect to any Serviced Companion Loan that is deposited into a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, such other trust, is subject to the reporting requirements of the Exchange Act, the failure of such Sub-Servicer to comply with any requirements to deliver any items required by Items 1122 and 1123 of Regulation AB under any other pooling and servicing agreement relating to any commercial mortgage loan securitization or (iii) the status of such Sub-Servicer as a Prohibited Party at any time during which the Trust is subject to the reporting requirements of the Exchange Act, shall each constitute an event of
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default by such Sub-Servicer under such sub-servicing agreement upon the occurrence of which any of the Master Servicer (with respect to any Sub-Servicer engaged by it), the Special Servicer (with respect to any Sub-Servicer engaged by it) or the Depositor shall have the right to immediately terminate such Sub-Servicer and that such termination shall be deemed for cause.
Section 8.5 Master Servicer May Own Certificates. The Master Servicer and any agent of the Master Servicer in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Master Servicer or such agent. Any such interest of the Master Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Master Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other. Subject to the limitations set forth below, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain for each Mortgage Loan (other than any REO Mortgage Loans and any Non-Serviced Mortgage Loans) (A) a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage Loan documents and the related Mortgage so require or so permit the holder of such Mortgage Loan to require, contains no exclusion for damages due to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002) and which does not provide for reduction due to depreciation in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or (ii) the outstanding Unpaid Principal Balance of such Mortgage Loan and any related Serviced B Note and/or Serviced Companion Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (B) any other insurance coverage for such Mortgage Loan which the related Mortgagor is required to maintain under the related Mortgage. If the related Mortgagor does not maintain the insurance set forth in clauses (A) and (B) above, then the Master Servicer shall cause such insurance to be maintained with a Qualified Insurer, provided the Master Servicer shall not be required to maintain earthquake insurance on any Mortgaged Property unless (x) such insurance was required at origination and is available at commercially reasonable rates and (y) the Trustee has an insurable interest. The Master Servicer shall be deemed to have satisfied its obligations with respect to clause (A) above if the Mortgagor maintains, or the Master Servicer shall have otherwise caused to be obtained, a Standard Hazard Insurance Policy that is in compliance with the related Mortgage Loan documents, and, if required by such Mortgage Loan documents or if such Mortgage Loan documents permit the holder of such Mortgage Loan to require, the Mortgagor pays, or the Master Servicer shall have otherwise caused to be paid, the premium required by the related insurance provider that is necessary to avoid an exclusion in such policy against “acts of terrorism” as defined by the Terrorism Risk Insurance Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect to any Mortgaged Property that is not an REO Property shall contain, or have an accompanying endorsement that contains, a standard mortgagee clause. If the improvements on the Mortgaged Property are located in a designated special flood hazard area by the Federal Emergency Management Agency in the Federal Register, as amended from time to time (to the extent permitted under the related Mortgage Loan documents or as required by law), the Master Servicer (with respect to any Mortgaged Property that is not an REO Property) shall, consistent
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with the Servicing Standard, cause flood insurance to be maintained. Such flood insurance shall be in an amount equal to the lesser of (i) the Unpaid Principal Balance of the related Mortgage Loan, Loan Pair or A/B Whole Loan, as applicable, or (ii) the maximum amount of such insurance available for the related Mortgaged Property under the national flood insurance program, if the area in which the improvements on the Mortgaged Property are located is participating in such program. Any amounts collected by the Master Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or property thus acquired or amounts released to the Mortgagor in accordance with the terms of the applicable Mortgage Loan documents) shall be deposited in the Collection Account.
Any cost (such as insurance premiums and insurance broker fees but not internal costs and expenses of obtaining such insurance) incurred by the Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall not, for the purpose of calculating monthly distributions to the Certificateholders or remittances to the Certificate Administrator for their benefit, be added to the principal balance of the related Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan documents permit such cost to be added to the outstanding principal balance thereof. Such costs shall be paid as a Servicing Advance by the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to enforce such insurance requirements. Furthermore, the Master Servicer shall not be required in any event to cause the Mortgagor to maintain or itself obtain insurance coverage (i) beyond what is available on commercially reasonable terms at a cost customarily acceptable (in each case, as determined by the Master Servicer, which shall be entitled to rely, at its sole expense, on insurance consultants in making such determination, consistent with the Servicing Standard) and consistent with the Servicing Standard or (ii) in the case of the Master Servicer obtaining such insurance, if the Trustee does not have an insurable interest; provided that the Master Servicer shall be obligated to cause the Mortgagor to maintain or itself obtain insurance against property damage resulting from terrorism or similar acts if the terms of the related Mortgage Loan documents and the related Mortgage so require unless the Special Servicer determines, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that the failure to maintain such insurance would constitute an Acceptable Insurance Default (based on information and documents provided by the Master Servicer as reasonably requested by the Special Servicer). The Master Servicer shall notify the holder of the related Serviced Companion Loan and any Serviced B Note of any determination that it makes pursuant to the proviso to the prior sentence with respect to any Serviced Pari Passu Mortgage Loan.
The Master Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 8.6 either (i) if the Master Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all of the applicable Mortgage Loans (other than a Non-Serviced Mortgage Loan), any Serviced Companion Loan and any Serviced B Note serviced by it, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is issued by a Qualified Insurer or (ii) if the Master Servicer, for so long as its long-term debt obligations or deposit accounts rating is not less than
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“A3” as rated by Moody’s and not less than “A-” as rated by Fitch, self-insures for its obligations as set forth in the first paragraph of this Section 8.6. If the Master Servicer shall cause any Mortgage Loan to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such Mortgage Loan (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Loan is then covered thereby), if not borne by the related Mortgagor, shall be paid by the Master Servicer as a Servicing Advance. If such policy contains a deductible clause, the Master Servicer shall, if there shall not have been maintained on the related Mortgaged Property a policy complying with this Section 8.6 and there shall have been a loss that would have been covered by such policy, deposit in the Collection Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan documents or (ii) if there is no deductible limitation required under such Mortgage Loan documents, the deductible amount with respect to insurance policies generally available on properties similar to the related Mortgaged Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount. In connection with its activities as administrator and servicer of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note, the Master Servicer agrees to present, on its behalf and on behalf of the Trustee and the holders of any Serviced Companion Loan or any Serviced B Note, claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan (other than any Non-Serviced Mortgage Loan), the Master Servicer shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of taxes, assessments and other similar items that are or may become a lien on the related Mortgaged Property and the status of insurance premiums payable with respect thereto. From time to time, the Master Servicer (other than with respect to any REO Mortgage Loan, REO Serviced B Note or Non-Serviced Mortgage Loan) shall (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) except in the case of Mortgage Loans under which Escrow Amounts are not held by the Master Servicer, effect payment of all such bills, taxes and other assessments with respect to such Mortgaged Properties prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Amounts as allowed under the terms of the related Mortgage Loan documents. If a Mortgagor fails to make any such payment on a timely basis or collections from the Mortgagor are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer in accordance with the Servicing Standard shall use its reasonable efforts to pay as a Servicing Advance the amount necessary to effect the payment of any such item prior to such penalty or termination date, subject to Section 4.4 hereof. No costs incurred by the Master Servicer or the Trustee as the case may be, in effecting the payment of taxes and assessments on the Mortgaged Properties and related insurance premiums and ground rents shall, for the purpose of calculating distributions to Certificateholders, be added to the principal balance of the Mortgage Loans, notwithstanding that the terms of the related Mortgage Loan documents permit such costs to be added to the outstanding principal balances thereof.
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Section 8.7 Enforcement of Due-on-Sale Clauses; Assumption Agreements; Due-on-Encumbrance Clause.
(a) If the Master Servicer receives a request from a Mortgagor (or other obligor) pursuant to the provisions of any Mortgage Loan, Serviced Companion Loan or Serviced B Note (other than a Specially Serviced Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the related Mortgage Loan documents, the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan, Serviced Companion Loan or Serviced B Note by, another Person, then the Master Servicer shall obtain relevant information for purposes of evaluating such request. For the purpose of the foregoing sentence, the term “expressly permits” shall include outright permission to assign, permission to assign upon satisfaction of certain conditions or prohibition against assignment except upon the satisfaction of stated conditions, in each case without lender discretion. In addition, if any Mortgage Loan, Serviced Companion Loan or Serviced B Note, in each case that is not a Specially Serviced Mortgage Loan, or a Non-Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms (i) provides that it shall (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or ownership interest in the related Mortgagor, or (ii) provides that it may not be assumed, or ownership interests in the related Mortgagor may not be transferred, without the consent of the related mortgagee in connection with any such sale or other transfer, then, upon the request of the related Mortgagor or other appropriate party or a potential or actual breach of such “due-on-sale” clause, the Master Servicer shall obtain relevant information for purposes of evaluating such request and in all cases, shall send such information to the Special Servicer for determination of the satisfaction of such conditions in accordance with the terms of this Section 8.7(a).
In connection with the foregoing, and subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Master Servicer shall promptly deliver any such request that involves a Major Decision or Special Servicer Decision to the Special Servicer (and the holder of any related Serviced B Note and, if required by the related Intercreditor Agreement, the holder of any related Serviced Companion Loan), together with any information in the possession of the Master Servicer that is reasonably necessary for the Special Servicer to make a decision with respect to such Mortgagor’s request. Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall, in accordance with the Servicing Standard (and, with respect to any such request that constitutes a Major Decision or Special Servicer Decision, while directly processing such request), grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the related Mortgage Loan, Serviced Companion Loan or Serviced B Note and this Agreement, or to any such waiver of a due-on-sale clause. With respect to any such request processed by the Master Servicer in accordance with Section 8.7(f), (x) the Master Servicer shall obtain the consent of the Special Servicer and such consent of the Special Servicer shall be deemed given if not denied within the period contemplated by Section 10.3, (y) the Master Servicer shall act accordingly and shall not permit any such assignment or assumption or waive any such due-on-sale clause unless (i) it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as set forth in the preceding clause (x), and (ii) with respect to any A/B Whole Loan or Loan Pair, the Master Servicer has obtained the approval of the holder of the related Serviced B Note or Serviced Companion Loan, as
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applicable, to the extent provided for in the related Intercreditor Agreement, and in accordance with any procedures therefor set forth in Section 10.13 and (z) if the Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the Master Servicer with a written statement and a verbal explanation, as necessary, as to its reasoning and analysis.
The Special Servicer (upon deciding to grant consent (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed assignment and assumption) or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision, the Master Servicer (upon consent or deemed consent by the Special Servicer (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed assignment and assumption) shall process such request of the related Mortgagor (or other obligor) and shall be authorized to enter into an assignment and assumption or substitution agreement with the Person to whom the related Mortgaged Property has been or is proposed to be conveyed, and/or release the original Mortgagor from liability under the related Mortgage Loan, Serviced Companion Loan or Serviced B Note and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided that neither the Special Servicer nor the Master Servicer shall enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or an Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. To the extent permitted by applicable law, neither the Special Servicer nor the Master Servicer shall enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor (or other obligor) is in conformity to the terms of the related Mortgage Loan and, if applicable, Serviced B Note or Serviced Companion Loan documents. The Master Servicer, in making its recommendation to the Special Servicer and the Special Servicer, in consenting to the action of the Master Servicer, shall evaluate such conformity in accordance with the Servicing Standard.
Neither the Master Servicer nor the Special Servicer shall have any liability, and each of them shall be indemnified by the Trust for any liability to the Mortgagor or the proposed assignee, for any delay in responding to requests for assumption, if the same shall occur as a result of the failure of any Rating Agency to respond to such request in a reasonable period of time.
(b) Prior to consenting to any assignment and assumption or waiver of a “due-on-sale” clause pursuant to Section 8.7(a) with respect to any Mortgage Loan, Serviced Companion Loan or B Note, the Special Servicer or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision (if any), the Master Servicer, as applicable, shall provide a Rating Agency Communication to the 17g-5 Information Provider with respect to any securities that are rated by any such NRSRO and evidence direct beneficial interests in a Serviced Companion Loan or Serviced B Note regarding such assignment and assumption or waiver if (A) the Unpaid Principal Balance of the related Mortgage Loan at such time equals or exceeds 5% of the Aggregate Certificate Balance of the Principal Balance Certificates or exceeds $35,000,000 or (B) the related Mortgage Loan is one of the then current ten (10) largest Mortgage Loans or groups of Crossed Mortgage Loans (by Unpaid Principal Balance) in the Trust Fund; provided, no Rating Agency Communication will be required under such circumstances if the Unpaid Principal Balance of the related Mortgage Loan is less than $5,000,000. In connection with each such Rating Agency Communication, the Special Servicer
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or the Master Servicer, as applicable, shall prepare and, subject to Section 5.7, deliver to the Rating Agencies a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation, and shall promptly forward copies of the assignment and assumption documents relating to the applicable Mortgage Loan, Serviced Companion Loan or Serviced B Note to the Special Servicer (if the Master Servicer is processing the matter), the Master Servicer (if the Special Servicer is processing the matter), the Certificate Administrator, the Custodian, the 17g-5 Information Provider and the Trustee, and the Special Servicer or the Master Servicer, as applicable, shall promptly thereafter, subject to Section 5.7, forward such documents to the Rating Agencies.
(c) The Special Servicer and the Master Servicer, in each case, for the benefit of the Certificateholders, the holder of any related Serviced Companion Loan and the holder of any related Serviced B Note, shall execute any necessary instruments (pursuant to subsection (a)) for such assignment and assumption agreements. Upon the closing of the transactions contemplated by such documents, the Special Servicer or the Master Servicer, as applicable, shall cause the originals of the assignment and assumption agreement, the release (if any), or the modification or supplement to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note to be delivered to the Custodian (with a copy thereof to the Master Servicer (if delivered by the Special Servicer) or the Special Servicer (if delivered by the Master Servicer)) except to the extent such documents have been submitted to the recording office, in which event the Special Servicer or the Master Servicer, as applicable, shall promptly deliver copies of such documents to the Custodian, the Master Servicer (if the Special Servicer is processing the matter) and the Special Servicer (if the Master Servicer is processing the matter).
(d) If any Mortgage Loan, Serviced Companion Loan or Serviced B Note (other than a Specially Serviced Mortgage Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:
(i) provides that such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor,
then, if the Master Servicer receives a request for a waiver of, or gains actual knowledge of any potential or actual breach of, such “due-on-encumbrance” clause, the Master Servicer shall obtain relevant information for purposes of evaluating such request. The Master Servicer shall then, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, promptly deliver any such request to the Special Servicer, together with any information in the possession of the Master Servicer that is reasonably necessary for the Special Servicer to make a decision with respect to such Mortgagor’s request. Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall, in accordance with the Servicing Standard (and, with respect to any such request that constitutes a Major Decision or Special Servicer Decision, while directly processing such
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request), grant or withhold consent to any such request for waiver of such due-on-encumbrance clause. With respect to any such request processed by the Master Servicer in accordance with Section 8.7(f), (x) the Master Servicer shall obtain the consent of the Special Servicer and such consent of the Special Servicer shall be deemed given if not denied within the time period contemplated by Section 10.3, (y) the Master Servicer shall act accordingly and shall not permit any such waiver unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as set forth in this sentence and (z) if the Special Servicer withholds consent pursuant to the foregoing provisions, it shall provide the Master Servicer with a written statement and a verbal explanation, as necessary, as to its reasoning and analysis.
The Special Servicer (upon deciding to grant consent (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed waiver) or the Master Servicer (upon consent or deemed consent by the Special Servicer (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed waiver) shall process such request of the related Mortgagor subject to the other requirements set forth above.
(e) Prior to consenting to any waiver of a “due-on-encumbrance” clause pursuant to Section 8.7(d) with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, the Special Servicer or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision, the Master Servicer, as applicable, shall provide a Rating Agency Communication regarding such waiver to each Rating Agency, the 17g-5 Information Provider and each Other NRSRO with respect to any securities that are rated by any such NRSRO and evidence direct beneficial interests in a Serviced Companion Loan or Serviced B Note.
Notwithstanding anything to the contrary contained in this Section 8.7 that requires the consent of the Master Servicer or the Special Servicer, as applicable, any such consent with respect to any A/B Whole Loan or any Loan Pair shall be obtained in accordance with the related Intercreditor Agreement and within the time periods specified therein.
(f) With respect to any non-Specially Serviced Mortgage Loan (other than Non-Serviced Mortgage Loans), the Master Servicer shall forward any request for consent to an assignment or assumption or for a waiver of a “due-on-sale” or “due-on-encumbrance” clause described above that, in each case, involves a Major Decision or Special Servicer Decision to the Special Servicer. Unless the Master Servicer and Special Servicer mutually agree that the Master Servicer shall process such request, the Special Servicer shall process such request. If such request does not involve a Major Decision or Special Servicer Decision, the Master Servicer shall process such request.
(g) Notwithstanding anything in this Agreement to the contrary, to the extent that the Master Servicer does not process a Major Decision or Special Servicer Decision, the Master Servicer shall have no duty to deliver to the Special Servicer any analysis or recommendations in connection with any such action but shall be required to provide all information in its possession that is reasonably necessary for the Special Servicer to make a decision with respect to the applicable Major Decision or Special Servicer Decision.
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Section 8.8 Custodian to Cooperate; Release of Trust Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, the complete defeasance of a Mortgage Loan, satisfaction or discharge in full of any Specially Serviced Mortgage Loan, the purchase of an A Note by the holder of a Serviced B Note pursuant to the related Intercreditor Agreement, or the receipt by the Master Servicer of a notification that payment in full (or such payment, if any, in connection with the satisfaction and discharge in full of any Specially Serviced Mortgage Loan) will be escrowed in a manner customary for such purposes, and upon notification by the Master Servicer in the form of a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the Collection Account have been or will be so deposited) of a Servicing Officer and a request for release of the Trust Mortgage File in the form of Exhibit C hereto delivered to the Custodian (on the Trustee’s behalf), the Custodian (on the Trustee’s behalf) shall promptly release the related Trust Mortgage File to the Master Servicer, and the Custodian (on the Trustee’s behalf) shall deliver to the Master Servicer the deed of reconveyance or release, satisfaction or assignment of mortgage or such instrument releasing the lien of the Mortgage, as directed by the Master Servicer together with the Mortgage Note (or Mortgage Notes) with written evidence of cancellation thereon. The provisions of the immediately preceding sentence shall not, in any manner, limit or impair the right of the Master Servicer to execute and deliver, on behalf of the Trustee, the Certificateholders, the holder of any Serviced Companion Loan, the holder of any Serviced B Note or any of them, any and all instruments of satisfaction, cancellation or assignment without recourse, representation or warranty, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, any Serviced Companion Loan or any Serviced B Note, and with respect to the Mortgaged Properties held for the benefit of the Certificateholders, the holder of any Serviced Companion Loan and the holder of any Serviced B Note. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Distribution Account but shall be paid by the Master Servicer except to the extent that such expenses are paid by the related Mortgagor in a manner consistent with the terms of the related Mortgage and applicable law. From time to time and as shall be appropriate for the servicing of any Mortgage Loan, including for such purpose, collection under any policy of flood insurance, any Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes of effecting a partial or total release of any Mortgaged Property from the lien of the Mortgage or the making of any corrections to the Mortgage Note (or Mortgage Notes) or the Mortgage or any of the other documents included in the Trust Mortgage File, the Custodian shall, upon request of the Master Servicer and the delivery to the Custodian of a Request for Release signed by a Servicing Officer, in the form of Exhibit C hereto, release the Trust Mortgage File to the Master Servicer or the Special Servicer, as the case may be.
(b) With respect to any Non-Serviced Loan Combination or the 261 Fifth Avenue Loan Pair (on and after the 261 Fifth Avenue Companion Loan Securitization Date), if pursuant to the related Intercreditor Agreement and the Other Companion Loan Pooling and Servicing Agreement, and as appropriate for enforcing the terms of such Non-Serviced Loan Combination or the 261 Fifth Avenue Loan Pair, as applicable, the related Other Master Servicer requests delivery to it of the original Mortgage Note, then the Custodian shall release or cause the release of such original Mortgage Note to the related Other Master Servicer or its designee and shall retain a copy thereof, subject to the execution of an agreement by such Other Master
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Servicer to safeguard such original Mortgage Note and to return such original Mortgage Note promptly when no longer required by such Other Master Servicer for such purpose.
(c) With respect to any Loan Pair, if pursuant to the related Intercreditor Agreement, and as appropriate for enforcing the terms of such Loan Pair, the Master Servicer requests from the related Other Custodian delivery to it of the original mortgage note evidencing the related Serviced Companion Loan, the Master Servicer shall agree to safeguard such original mortgage note and to return such original mortgage note promptly when no longer required by it for such purpose.
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for the Benefit of the Certificateholders. Notwithstanding any other provisions of this Agreement, the Master Servicer shall transmit to the Trustee, the Certificate Administrator and the Custodian, to the extent required by this Agreement, all documents and instruments coming into the possession of the Master Servicer from time to time and shall account fully to the Trustee, the Certificate Administrator and the Custodian for any funds received or otherwise collected thereby, including Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files and funds collected or held by, or under the control of, the Master Servicer in respect of any Mortgage Loans (or any Serviced B Note or Serviced Companion Loan), whether from the collection of principal and interest payments or from Liquidation Proceeds or Insurance Proceeds, including any funds on deposit in the Collection Account (or any Custodial Account), shall be held by the Master Servicer for and on behalf of the Trustee and the Certificateholders (or the holder of any Serviced B Note or Serviced Companion Loan, as applicable) and shall be and remain the sole and exclusive property of the Trust, subject to the applicable provisions of this Agreement. The Master Servicer agrees that it shall not create, incur or subject any Servicer Mortgage Files or Trust Mortgage File or any funds that are deposited in the Collection Account or any Escrow Account, or any funds that otherwise are or may become due or payable to the Trustee, the Certificate Administrator or the Custodian, to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, or assert by legal action or otherwise any claim or right of setoff against any Servicer Mortgage Files or Trust Mortgage File or any funds collected on, or in connection with, a Mortgage Loan, except, however, that the Master Servicer shall be entitled to receive from any such funds any amounts that are properly due and payable to the Master Servicer under this Agreement.
Section 8.10 Servicing Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall be entitled to the Master Servicing Fee, which shall be payable by the Trust from amounts held in the Collection Account (and from the related Custodial Account to the extent related solely to any Serviced B Note or Serviced Companion Loan) or otherwise collected from the Mortgage Loans and, if applicable, A/B Whole Loans and Loan Pairs (including a Mortgage Loan, A/B Whole Loan or Loan Pair that relates to an REO Property or is a Defeasance Loan), including any Non-Serviced Mortgage Loan, as provided in Section 5.2. The Master Servicer’s rights to the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer’s responsibilities and obligations under this Agreement or as provided in the following paragraph with respect to the Excess Servicing Fee.
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The Master Servicer and any successor holder of the Excess Servicing Fee Rights shall be entitled, at any time, at its own expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in either case, to any Qualified Institutional Buyer or Institutional Accredited Investor (other than a Plan); provided, that no such transfer, sale, pledge or other assignment shall be made unless (i) that transfer, sale, pledge or other assignment is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws and is otherwise made in accordance with the Securities Act and such state securities laws, (ii) the prospective transferor shall have delivered to the Depositor a certificate substantially in the form of Exhibit S-1 attached hereto, and (iii) the prospective transferee shall have delivered to the Master Servicer and the Depositor a certificate substantially in the form of Exhibit S-2 attached hereto. None of the Depositor, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor or the Certificate Registrar shall have any obligation to register or qualify an Excess Servicing Fee Right under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee Right without registration or qualification. The Master Servicer and each holder of an Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other assignment of such Excess Servicing Fee Right shall, and the Master Servicer hereby agrees, and each such holder of an Excess Servicing Fee Right by its acceptance of such Excess Servicing Fee Right shall be deemed to have agreed, in connection with any transfer of such Excess Servicing Fee Right effected by such Person, to indemnify the Certificateholders, the Trust, the Depositor, the Underwriters, the Initial Purchasers, the Certificate Administrator, the Custodian, the Trustee, the Master Servicer, the Certificate Registrar, the Trust Advisor and the Special Servicer against any liability that may result if such transfer is not exempt from registration and/or qualification under the Securities Act or other applicable federal and state securities laws or is not made in accordance with such federal and state laws or in accordance with the foregoing provisions of this paragraph. By its acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed to have agreed not to use or disclose such information in any manner that could result in a violation of any provision of the Securities Act or other applicable securities laws or that would require registration of such Excess Servicing Fee Right or any Certificate pursuant to the Securities Act. From time to time following any transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the Master Servicer with respect to the related Mortgage Loan, Serviced Companion Loan or any successor REO Loan with respect thereto to which the Excess Servicing Fee Right relates, shall pay, out of the Master Servicing Fee paid to the Master Servicer with respect to such Mortgage Loan, Serviced Companion Loan or any successor REO Loan, as the case may be, the related Excess Servicing Fee to the holder of such Excess Servicing Fee Right within one Business Day following the payment of such Master Servicing Fee to the Master Servicer, in each case in accordance with payment instructions provided by such holder in writing to the Master Servicer. The holder of an Excess Servicing Fee Right shall not have any rights under this Agreement except as set forth in the preceding sentences of this paragraph. None of the Certificate Administrator, the Custodian, the Certificate Registrar, the Trust Advisor, the Depositor, the Special Servicer or the Trustee shall have any obligation whatsoever regarding payment of the Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee Right.
(b) Notwithstanding anything herein to the contrary (and, in the case of any A/B Whole Loan, Loan Pair or Non-Serviced Loan Combination, subject to any provisions of the
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applicable Intercreditor Agreement relating to the allocation of the amounts set forth below), the Master Servicer shall be entitled to receive the following items as additional servicing compensation:
(i) 100% of defeasance fees (provided, that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees in connection with a defeasance that the Special Servicer is entitled to under this Agreement) actually collected during the related Collection Period;
(ii) (x) 50% of Unallocable Modification Fees or waiver fees actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to the mutual agreement of the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process)) and (y) 100% of Unallocable Modification Fees actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that the Master Servicer is permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(iii) After application as set forth in Section 5.2(b) hereof, (x) 50% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to the mutual agreement of the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process)) and (y) 100% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that Master Servicer is permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(iv) 50% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer), and 100% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that the Master Servicer is permitted to take in the absence of the consent or
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approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(v) 100% of assumption application fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans (regardless of whether the Master Servicer or the Special Servicer processes the assumption);
(vi) 50% of Consent Fees on Non-Specially Serviced Mortgage Loans in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to the mutual agreement of the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process)), and 100% of Consent Fees on Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent that the Master Servicer is permitted to grant or take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long so long as no Major Decision or Special Servicer Decision is involved;
(vii) Any and all amounts collected for checks returned for insufficient funds on all Mortgage Loans and Serviced Companion Loans;
(viii) 100% of charges for beneficiary statements or demands actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans;
(ix) (a) 100% of other loan processing fees actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans to the extent that the consent of the Special Servicer is not required in connection with the associated action so long as no Major Decision or Special Servicer Decision is involved and (b) 50% of other loan processing fees actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans which action involves a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to the mutual agreement of the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process));
(x) Interest or other income earned on deposits in the Collection Account maintained by the Master Servicer, in accordance with Section 5.2 (net of any investment losses with respect to the Collection Account); and
(xi) After application as set forth in Section 5.2(b), any Excess Penalty Charges earned on Non-Specially Serviced Mortgage Loans.
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Notwithstanding the foregoing, regardless of whether the Master Servicer or the Special Servicer processes the request in clause (b) of the definition of Special Servicer Decisions, each of the Master Servicer and the Special Servicer shall be entitled to 50% of any fee paid in connection with such Special Servicer Decision on any non-Specially Serviced Mortgage Loan.
(c) The Master Servicer shall also be entitled to additional servicing compensation of (i) an amount equal to the excess, if any, of the aggregate Prepayment Interest Excess collected with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, during each Collection Period over the aggregate Prepayment Interest Shortfalls incurred with respect to such Mortgage Loans during such Collection Period, and (ii) to the extent not required to be paid to any Mortgagor under applicable law, any interest or other income earned on deposits in the Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements.
(a) For each Distribution Date, (i) the Master Servicer shall deliver to the Certificate Administrator (or with respect to a Serviced Companion Loan, to the holder thereof or its servicer), no later than 2:00 p.m., New York City time, on the related Advance Report Date, the Master Servicer Remittance Report with respect to such Distribution Date including any information regarding prepayments and Balloon Payments made and any CREFC® License Fee to be paid to CREFC® and (ii) the Master Servicer shall report to the Certificate Administrator on or prior to the related Advance Report Date, the amount of the P&I Advance, if any, to be made by the Master Servicer on the related Master Servicer Remittance Date. The Special Servicer is required to provide all applicable information relating to Specially Serviced Mortgage Loans reasonably necessary in order for the Master Servicer to satisfy its duties in this Section 8.11. The Master Servicer Remittance Report shall be updated no later than 12:00 p.m., New York City time, on the Master Servicer Remittance Date to reflect any payment on a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note for which the Scheduled Payment is paid on a Due Date (or within its grace period) that occurs after the end of the related Collection Period and the Master Servicer shall notify the Certificate Administrator on the Advance Report Date that such an updated Master Servicer Remittance Report is to be provided.
(b) Notwithstanding any provision of this Agreement to the contrary, the Master Servicer shall not have any obligation (other than to the Certificate Administrator under Section 8.11(a) and (d) hereof and to the Special Servicer) to deliver any statement, notice or report that is then made available on the Master Servicer’s or the Certificate Administrator’s internet website, if it has notified all parties entitled to delivery of such reports, by electronic mail or other notice provided in this Agreement, to the effect that such statements, notices or reports shall thereafter be made available on such website from time to time; provided, that with respect to any Loan Pair or A/B Whole Loan, the Master Servicer shall deliver to the holder of the related Serviced Companion Loan and/or Serviced B Note any statement, notice or report required to be delivered to it pursuant to the terms of the related Intercreditor Agreement.
(c) The Master Servicer shall promptly inform the Special Servicer of the name, account number, location and other necessary information concerning the Collection
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Account in order to permit the Special Servicer to remit amounts to the Master Servicer for deposit therein.
(d) The Master Servicer shall deliver or cause to be delivered to the Certificate Administrator and the holder of any Serviced Companion Loan (in respect of such Serviced Companion Loan) the following CREFC® Reports with respect to the Mortgage Loans (and, if applicable, the related REO Properties and, to the extent received from the applicable Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan) providing the required information as of the related Determination Date upon the following schedule: (i) a CREFC® Comparative Financial Status Report and the CREFC® Financial File not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; (ii) a CREFC® Operating Statement Analysis Report and a CREFC® NOI Adjustment Worksheet in accordance with Section 8.14 of this Agreement not later than one (1) Business Day prior to each applicable Distribution Date; (iii) a CREFC® Servicer Watch List in accordance with and subject to the terms of Section 8.11(e) not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; (iv) a CREFC® Loan Setup File (with respect to the initial Distribution Date only) not later than the Report Date in October 2015; (v) a CREFC® Loan Periodic Update File not later than each Advance Report Date commencing in October 2015 (which CREFC® Loan Periodic Update File shall be accompanied by a CREFC® Advance Recovery Report); (vi) a CREFC® Property File not later than each Report Date, commencing in October 2015; (vii) a CREFC® Delinquent Loan Status Report not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; (viii) a CREFC® Historical Loan Modification and Corrected Mortgage Loan Report not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; (ix) a CREFC® Loan Level Reserve/LOC Report not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; (x) a CREFC® REO Status Report not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015; and (xi) a CREFC® Total Loan Report not later than one (1) Business Day prior to each Distribution Date, commencing in October 2015. The information that pertains to Specially Serviced Mortgage Loans and REO Properties reflected in such reports shall be based upon the reports delivered by the Special Servicer to the Master Servicer in writing as of the related Determination Date and on a computer readable medium reasonably acceptable to the Master Servicer and the Special Servicer not later than the Special Servicer Remittance Date prior to the related Master Servicer Remittance Date in the form required under Section 9.32. The Master Servicer’s responsibilities under this Section 8.11(d) with respect to REO Mortgage Loans and Specially Serviced Mortgage Loans shall be subject to the satisfaction of the Special Servicer’s obligations under Section 9.32. The reporting obligations of the Master Servicer in connection with any A/B Whole Loan shall be construed to refer only to such information regarding the A/B Whole Loan (and its related Mortgaged Property) and by reference to the related A Note only, but whenever the Master Servicer remits funds to the holder of the related Serviced B Note, it shall thereupon deliver to such holder a remittance report identifying the amounts in such remittance.
(e) For each Distribution Date, the Master Servicer shall deliver to the Certificate Administrator (and solely with respect to any A/B Whole Loan, the holder of the related Serviced B Note and solely with respect to any Loan Pair, the holder of the related Serviced Companion Loan), not later than one (1) Business Day prior to each Distribution Date, a CREFC® Servicer Watch List. The Master Servicer shall list any Mortgage Loan on the
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CREFC® Servicer Watch List as to which any of the events specified in the CREFC® Servicer Watch List published by the CREFC® for industry use has occurred.
(f) If the Master Servicer delivers a notice of drawing to effect a drawing on any letter of credit or debt service reserve account under which the Trust has rights as the holder of any Mortgage Loan for purposes other than payment or reimbursement of amounts contemplated in and by a reserve or escrow agreement (other than after a default under an applicable Mortgage Loan or Serviced B Note), the Master Servicer shall, within five (5) Business Days following its receipt of the proceeds of such drawing, deliver notice thereof to the Special Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Certificate Administrator, which notice shall set forth (i) the Unpaid Principal Balance of such Mortgage Loan or Serviced B Note immediately before and immediately after the drawing, and (ii) a brief description of the circumstances that in the Master Servicer’s good faith and reasonable judgment entitled the Master Servicer to make such drawing.
Section 8.12 Reserved.
Section 8.13 Reserved.
Section 8.14 CREFC® Operating Statement Analysis Reports Regarding the Mortgaged Properties. The Master Servicer (in the case of Non-Specially Serviced Mortgage Loans) and the Special Servicer (in the case of Specially Serviced Mortgage Loans and REO Loans (other than any Non-Serviced Mortgage Loan that has become an REO Loan)) shall use reasonable efforts to collect from the related Mortgagors any and all operating statements, other financial statements and rent rolls required to be delivered pursuant to the related Mortgage Loan documents after the Closing Date, and the Special Servicer shall deliver copies within ten (10) Business Days of receipt of all such items collected by it to the Master Servicer. On a calendar quarterly basis within forty-five (45) days after the Master Servicer’s receipt of the related Mortgagor’s quarterly financial statements (commencing within forty-five (45) days of the receipt of related Mortgagor’s financial statements for the quarter ending March 31, 2016) and on an annual basis within forty-five (45) days after the Master Servicer’s receipt of the related Mortgagor’s annual financial statements (commencing with the year ending December 31, 2016), the Master Servicer (in the case of all Mortgage Loans (other than any Non-Serviced Mortgage Loan)) shall deliver or make available electronically to the Certificate Administrator and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) a CREFC® Operating Statement Analysis Report and a CREFC® Financial File for each Mortgaged Property (in electronic format), prepared, to the extent so required by the then current CREFC® investor reporting package, using the normalized quarterly and normalized year-end operating statements and rent rolls of each applicable Mortgagor, and a copy of the actual operating statements, financial statements and rent rolls provided by each Mortgagor (to the extent provided to the Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially Serviced Mortgage Loans, as provided to the Special Servicer, copies of which the Special Servicer shall forward to the Master Servicer within ten (10) Business Days of receipt thereof); provided, however, that the analysis with respect to the first calendar quarter of each year will not be required to the extent provided in the then-current applicable CREFC® guidelines. Not later than June 30th of each year (commencing in 2016), the Master Servicer (in
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the case of all Mortgage Loans) shall deliver or make available electronically to the Certificate Administrator and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) a CREFC® Operating Statement Analysis Report, a CREFC® Financial File and a CREFC® NOI Adjustment Worksheet for each Mortgage Loan (in electronic format), based on the most recently available year-end operating statements and most recently available rent rolls of each applicable Mortgagor (to the extent provided to the Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially Serviced Mortgage Loans, as provided to the Special Servicer, which the Special Servicer shall forward to the Master Servicer on or before May 31st of each such year), containing such information and analyses for each Mortgage Loan (other than Non-Serviced Mortgage Loans) provided for in the respective forms of a CREFC® Operating Statement Analysis Report, CREFC® Financial File and a CREFC® NOI Adjustment Worksheet as would customarily be included in accordance with the Servicing Standard including, without limitation, Debt Service Coverage Ratios and income, subject, in the case of any Non-Serviced Mortgage Loan, to the receipt of such report from the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer. The Master Servicer shall make reasonable efforts, consistent with the Servicing Standard, to obtain such reports from the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer. In addition, the Master Servicer shall deliver to the Certificate Administrator and the Special Servicer, and upon request the Master Servicer shall make available to the Rating Agencies (subject to Section 5.7), the Custodian, the Trustee and the holder of any Serviced Companion Loan, within thirty (30) days following the Master Servicer’s receipt thereof, copies of any annual, monthly or quarterly financial statements and rent rolls collected with respect to the related Mortgaged Properties. If reasonably requested by the Special Servicer, the Master Servicer shall discuss with the Mortgagor with respect to Non-Specially Serviced Mortgage Loans (i) the annual, monthly or quarterly financial statements and rent rolls collected with respect to the related Mortgaged Properties or (ii) the performance of the related Mortgaged Properties.
Section 8.15 Other Available Information and Certain Rights of the Master Servicer.
(a) Subject to Section 5.7 and the restrictions described below, the Master Servicer shall afford any Privileged Person, any Seller, any holder of a Serviced Companion Loan or any holder of a Serviced B Note, upon reasonable prior notice and during normal business hours, reasonable access to all relevant, non-attorney-client-privileged records and documentation regarding the applicable Mortgage Loans (other than Non-Serviced Mortgage Loans), any REO Property and all accounts, insurance policies and other relevant matters relating to this Agreement (which access may occur by means of the availability of information on the Master Servicer’s internet website), and access to Servicing Officers of the Master Servicer responsible for its obligations hereunder. Copies of information or access will be provided to Certificateholders and each Certificate Owner and prospective investor providing satisfactory evidence of legal or beneficial ownership of, or intent to purchase, a Certificate, as the case may be, which shall be in the form of an Investor Certification (which shall include a certification that the Person requesting such information is not a Mortgagor under any such Mortgage Loan, a Manager of any Mortgaged Property or an Affiliate or agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or
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advisor of, or any investor in, any of the foregoing). Copies (or computer diskettes or other digital or electronic copies of such information if reasonably available in lieu of paper copies) of any and all of the foregoing items shall be made available by the Master Servicer upon request; provided, that the Master Servicer shall be permitted to require payment by the requesting party (other than the Depositor, the Trustee, the Custodian, the Certificate Administrator, the Special Servicer, the Controlling Class Representative, the Trust Advisor, any Underwriter or any Initial Purchaser) of a sum sufficient to cover the reasonable expenses actually incurred by the Master Servicer of providing access or copies (including electronic or digital copies) of any such information requested in accordance with the preceding sentence.
(b) Nothing herein shall be deemed to require the Master Servicer to confirm, represent or warrant the accuracy of (or to be liable or responsible for) any other Person’s information or report. Notwithstanding the above, the Master Servicer shall not have any liability to any Person to whom it delivers information pursuant to this Section 8.15 or any other provision of this Agreement for federal, state or other applicable securities law violations relating to the disclosure of such information. If any Person brings any claims relating to or arising from the foregoing against the Master Servicer (or any employee, attorney, officer, director or agent thereof), the Trust (from amounts held in any account (including, subject to the related Intercreditor Agreement, with respect to any such claims relating to a Serviced Companion Loan or a Serviced B Note, from amounts held in the related Custodial Account) or otherwise) shall hold harmless and indemnify the Master Servicer from any loss or expense (including attorney fees) relating to or arising from such claims.
(c) The Master Servicer shall produce the reports required of it under this Agreement; provided, that the Master Servicer shall not be required to produce any ad hoc non-standard written reports with respect to any Mortgage Loans. If the Master Servicer elects to provide such non-standard reports, it may require the Person requesting such report (other than a Rating Agency) to pay a reasonable fee to cover the costs of the preparation thereof. Any transmittal of information by the Master Servicer to any Person other than the Trustee, the Custodian, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor, any Underwriter, any Initial Purchaser, the Rating Agencies (subject to Section 5.7), the Controlling Class Representative or the Depositor may be accompanied by a letter from the Master Servicer containing the following provision:
“By receiving the information set forth herein, you hereby acknowledge and agree that the United States securities laws restrict any person who possesses material, non-public information regarding the Trust which issued Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 from purchasing or selling such Certificates in circumstances where the other party to the transaction is not also in possession of such information. You also acknowledge and agree that such information is being provided to you for the purpose of, and such information may be used only in connection with, evaluation by you or another Certificateholder, Certificate Owner or prospective purchaser of such Certificates or beneficial interest therein.”
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(d) The Master Servicer may, at its discretion, make available by electronic media and bulletin board service certain information and may make available by electronic media or bulletin board service (in addition to making such information available as provided herein) any reports or information required by this Agreement that the Master Servicer is required to provide to any of the Rating Agencies, the Depositor and anyone the Depositor reasonably designates.
(e) Subject to Section 5.7, the Master Servicer shall cooperate in providing the Rating Agencies with such other pertinent information relating to the Mortgage Loans as is or should be in their respective possession as the Rating Agencies may reasonably request.
Section 8.16 Rule 144A Information. For as long as any of the Certificates are “restricted securities” within the meaning of Rule 144A under the Securities Act, the Master Servicer agrees to provide to the Certificate Administrator for delivery to any Holder thereof, any Certificate Owner therein and to any prospective purchaser of the Certificates or beneficial interest therein reasonably designated by the Certificate Administrator upon the request of such Certificateholder, such Certificate Owner or the Certificate Administrator subject to this Section 8.16 and the provisions of Sections 5.4 and 8.15, any information prepared by the Master Servicer that any such entity requests as being required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act.
Any recipient of information provided pursuant to this Section 8.16 shall agree that such information shall not be disclosed or used for any purpose other than the evaluation of the Certificates by such Person and the Master Servicer shall be permitted to use the letter referred to in Section 8.15(c). Unless the Master Servicer chooses to deliver the information directly, the Depositor, the Underwriters, the Initial Purchasers or the Certificate Administrator shall be responsible for the physical delivery of the information requested pursuant to this Section 8.16. As a condition to the Master Servicer making any report or information available upon request to any Person other than the parties hereto, the Master Servicer may require that the recipient of such information acknowledge that the Master Servicer may contemporaneously provide such information to the Depositor, the Trustee, the Custodian, the Certificate Administrator, the Special Servicer, the Trust Advisor, the Sellers, the Controlling Class Representative, the holder of a Serviced Companion Loan, the holder of a Serviced B Note, the Underwriters, the Initial Purchasers, any Rating Agency (subject to Section 5.7) and/or the Certificateholders and Certificate Owners. The Master Servicer will be permitted to require payment of a sum to be paid by the requesting party (other than the Depositor, the Rating Agencies, the Trustee, the Custodian, the Certificate Administrator, the Underwriters or the Initial Purchasers) sufficient to cover the reasonable costs and expenses of making such information available.
Section 8.17 Inspections. The Master Servicer shall, at its own expense, inspect or cause to be inspected each Mortgaged Property other than Mortgaged Properties related to Specially Serviced Mortgage Loans and Non-Serviced Mortgage Loans, every calendar year beginning in 2016, or every second (2nd) calendar year beginning in 2017 if the Unpaid Principal Balance of the related Mortgage Loan or Loan Pair is less than $2,000,000; provided that, to the extent the applicable Mortgaged Property has not been inspected within the prior sixty (60) days,
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the Master Servicer shall, at the expense of the Trust, inspect or cause to be inspected each Mortgaged Property related to a Mortgage Loan or Loan Pair (other than a Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan) that has a Debt Service Coverage Ratio that falls below 1.0x; provided, further, that with respect to any Mortgage Loan (other than a Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan) or Loan Pair that has an Unpaid Principal Balance of less than $2,000,000 and has been placed on the CREFC® Servicer Watch List, the Master Servicer shall inspect or cause to be inspected the related Mortgaged Property every calendar year beginning in 2017 so long as such Mortgage Loan or Loan Pair continues to be on the CREFC® Servicer Watch List; provided, if such Mortgage Loan or Loan Pair is no longer on the CREFC® Servicer Watch List at the time the inspection was scheduled, no such inspection shall be required. The Master Servicer shall prepare an Inspection Report relating to each inspection. The Master Servicer shall promptly forward the applicable Inspection Report to the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly upon receipt post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Special Servicer, solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan, and solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note, and upon request, to any Certificateholder, any Certificate Owner and any Seller.
The Special Servicer shall have the right (but not the obligation), in its sole discretion, to inspect or cause to be inspected (at its own expense) every calendar year any Mortgaged Property related to a Non-Specially Serviced Mortgage Loan; provided that the Special Servicer notifies the Master Servicer prior to such inspection. The Master Servicer is not required to inspect any Mortgaged Property that has been inspected by the Special Servicer during the preceding twelve (12) months.
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.
(a) With respect to any Non-Specially Serviced Mortgage Loan, the Master Servicer shall provide prompt written notice to the Special Servicer of any request for modification, waiver or amendment of such Mortgage Loan or any related A/B Whole Loan or Loan Pair, together with any information in the possession of the Master Servicer that the Special Servicer may reasonably request for any such action that constitutes a Major Decision or Special Servicer Decision. Unless the Master Servicer and the Special Servicer mutually agree that the Master Servicer shall process such request, the Special Servicer shall process any request for modification, waiver or amendment of any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair that constitutes a Major Decision or Special Servicer Decision. If the Special Servicer and the Master Servicer mutually agree that the Master Servicer shall process such request, the Master Servicer and Special Servicer shall comply with the procedures in Section 10.3.
(b) The Master Servicer shall provide prompt written notice to the Special Servicer of any request for modification, waiver or amendment of any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, together with any
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information in the possession of the Master Servicer that the Special Servicer may reasonably request with respect to any action that constitutes a Major Decision or Special Servicer Decision. Subject to the limitations of Sections 10.3 and 12.3 hereof, the Master Servicer shall have the following powers:
(i) Subject to Section 10.3, the right of the Special Servicer to process Major Decisions and Special Servicer Decisions, and the terms and conditions of any related Intercreditor Agreement, the Master Servicer in accordance with the Servicing Standard may agree to any modification, waiver, amendment or consent of or relating to any term (other than a Money Term) of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced Companion Loan or a Serviced B Note that is not a Specially Serviced Mortgage Loan (such terms to include, without limitation, Master Servicer Consent Matters set forth in Section 8.3(a) hereof), provided that such amendment would not result in an Adverse REMIC Event or an Adverse Grantor Trust Event. In any event, the Master Servicer shall promptly notify the Special Servicer of any material modification, waiver, amendment or consent executed by the Master Servicer pursuant to this Section 8.18(b)(i) and provide to the Special Servicer a copy thereof. Notwithstanding the foregoing provisions of this Section 8.18, if the related Mortgage Loan documents require a Mortgagor to pay a fee for an assumption, modification, waiver, amendment or consent that would be due or partially due to the Special Servicer, then the Master Servicer shall not waive the portion of such fee due to the Special Servicer without the Special Servicer’s written approval.
(ii) Subject to Section 10.3, the right of the Special Servicer to process Major Decisions and Special Servicer Decisions, and the terms and conditions of any related Intercreditor Agreement, the Master Servicer may extend the maturity date of any Balloon Loan (other than a Non-Serviced Mortgage Loan) that is not a Specially Serviced Mortgage Loan to a date that is not more than sixty (60) days following the original Maturity Date, if in the Master Servicer’s sole judgment exercised in good faith (and evidenced by an Officer’s Certificate delivered to the Special Servicer and the Trustee), a default in the payment of the Balloon Payment is reasonably foreseeable and such extension is reasonably likely to produce a greater recovery to the Holders and the holders of the related Serviced B Note and Serviced Companion Loan (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Balloon Loan and the Mortgagor has obtained an executed written commitment acceptable to the Special Servicer (subject only to satisfaction of conditions set forth therein) for refinancing of such Balloon Loan or purchase of the related Mortgaged Property. The Master Servicer shall process all such extensions.
(c) In connection with processing (or granting consent to the Master Servicer in connection with any action being processed by the Master Servicer that is) any Major Decision or Special Servicer Decision, the Special Servicer (in accordance with the Servicing Standard and subject to the terms and conditions of any related Intercreditor Agreement) shall also have the right: (i) to agree to any modification, waiver, amendment or consent of or relating to any term (other than a Money Term) of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced Companion Loan or a Serviced B Note that is not a Specially Serviced Mortgage Loan, provided that such amendment would not result in an Adverse REMIC
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Event or an Adverse Grantor Trust Event; and (ii) to extend the maturity date of any Balloon Loan (other than a Non-Serviced Mortgage Loan) that is not a Specially Serviced Mortgage Loan to a date that is not more than sixty (60) days following the original Maturity Date, if in the Special Servicer’s sole judgment exercised in good faith (and evidenced by an Officer’s Certificate delivered to the Trustee), a default in the payment of the Balloon Payment is reasonably foreseeable and such extension is reasonably likely to produce a greater recovery to the Holders and the holders of the related Serviced B Note and Serviced Companion Loan (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Balloon Loan and the Mortgagor has obtained an executed written commitment acceptable to the Special Servicer (subject only to satisfaction of conditions set forth therein) for refinancing of such Balloon Loan or purchase of the related Mortgaged Property.
(d) The Master Servicer or the Special Servicer, as applicable, may require, in its discretion (unless prohibited or otherwise provided in the Mortgage Loan documents), as a condition to granting any request by a Mortgagor for any consent, modification, waiver, amendment or collateral release, that such Mortgagor pay to the Trust a reasonable and customary modification fee to the extent permitted by law; provided that the collection of such fee shall not be permitted if collection of such fee would cause a “significant modification” (within the meaning of Treasury Regulation Section 1.860G-2(b)) of the Mortgage Loan. The Master Servicer or the Special Servicer, as applicable, may charge the Mortgagor for any costs and expenses (including attorneys’ fees and rating agency fees) incurred by the Master Servicer or the Special Servicer (and any amounts incurred by the Special Servicer or the Master Servicer, as applicable, shall be reimbursed to the Special Servicer or the Master Servicer, as applicable, as an Additional Trust Expense) in connection with any request for a modification, waiver, amendment or collateral release. The Master Servicer shall use its reasonable best efforts in accordance with the Servicing Standard to collect such costs, expenses and fees from the Mortgagor and if the Master Servicer or the Special Servicer, as applicable, believes that the costs and expenses (including attorneys’ fees) to be incurred by the Master Servicer or the Special Servicer, as applicable, in connection with any request for a modification, waiver or amendment will result in a payment or reimbursement by the Trust, then the Master Servicer or the Special Servicer, as applicable, shall notify the Special Servicer or the Master Servicer, as applicable, prior to incurring any such costs and expenses, provided that the failure or inability of the Mortgagor to pay any such costs and expenses shall not impair the right of the Master Servicer or the Special Servicer, as applicable, to cause such costs and expenses (but not including any modification fee), and interest thereon at the Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid by the Mortgagor).
(e) The Master Servicer or the Special Servicer, as applicable, shall notify the Trustee, the Custodian, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period) and the Special Servicer or the Master Servicer, as applicable, of any modification, waiver or amendment of any term of any Mortgage Loan permitted by it under this Section and the date thereof, and shall deliver to the Custodian (on the Trustee’s behalf) for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly following the execution thereof except to the extent such documents have
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been submitted to the applicable recording office, in which event the Master Servicer or the Special Servicer, as applicable, shall promptly deliver copies of such documents to the Custodian (on the Trustee’s behalf). Except in coordination with the Special Servicer as provided for in Section 8.18(a), the Master Servicer shall not agree to any modification, waiver, or amendment of any term of (i) any Mortgage Loan that constitutes a Major Decision or Special Servicer Decision or (ii) any Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan. The Master Servicer shall notify the holder of any related Serviced B Note or Serviced Companion Loan of any modification of the monthly payments of an A/B Whole Loan or a Loan Pair, as the case may be, and such monthly payments shall be allocated in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and Section 8.30 hereof).
Section 8.19 Specially Serviced Mortgage Loans.
(a) Within five (5) Business Days after becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan or any related Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer, as applicable, shall send a written notice to the Special Servicer (if such notice is sent by the Master Servicer), the Master Servicer (if such notice is sent by the Special Servicer), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the 17g-5 Information Provider (who shall promptly post such notice on the 17g-5 Information Provider’s Website), the Certificate Administrator (who shall promptly post such notice on the Certificate Administrator’s Website), the Trustee, the Custodian, the related Seller and, solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note and solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan, which notice shall identify the related Mortgage Loan and set forth in reasonable detail the nature and relevant facts of such Servicing Transfer Event and whether such Mortgage Loan is covered by an Environmental Insurance Policy (and for purposes of stating whether such Mortgage Loan is covered by an Environmental Insurance Policy the Master Servicer may rely on Schedule VII attached hereto) and, in the case of a notice to the Special Servicer, shall be accompanied by a copy of the Servicer Mortgage File.
(b) Prior to or concurrently with the transfer of the servicing of any Specially Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify the related Mortgagor of such transfer in accordance with the Servicing Standard (and shall send a copy of such notice to the Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be based on information supplied to the Master Servicer in writing by the Special Servicer as provided hereby. The Master Servicer shall have no duty to investigate or confirm the accuracy of any information provided to it by the Special Servicer and shall have no liability for the inaccuracy of any of its reports due to the inaccuracy of the information provided by the Special Servicer.
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(d) Subject to Section 5.4(e), on or prior to each Distribution Date, the Master Servicer shall provide to the Special Servicer, in order for the Special Servicer to comply with its obligations under this Agreement, such information (and in the form and medium) as the Special Servicer may reasonably request in writing from time to time.
Section 8.20 Representations, Warranties and Covenants of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to and covenants with each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date:
(i) the Master Servicer is duly organized, validly existing and in good standing as a national banking association under the laws of the United States of America, and shall be and thereafter remain, in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Master Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement. The Master Servicer has duly and validly authorized the execution, delivery and performance of this Agreement and this Agreement has been duly executed and delivered by the Master Servicer; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, evidences the valid and binding obligation of the Master Servicer enforceable against the Master Servicer in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership and other similar laws affecting creditors’ rights generally (and, to the extent applicable, the rights of creditors of national banks) as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(iii) the execution and delivery of this Agreement by the Master Servicer, the consummation by the Master Servicer of the transactions contemplated hereby, and the fulfillment of or compliance by the Master Servicer with the terms and conditions of this Agreement will not (1) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, in any manner that materially and adversely affects its ability to perform its obligations under this Agreement or (2) result in a breach of any term or provision of its organizational documents;
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(iv) no litigation is pending or, to the best of the Master Servicer’s knowledge, threatened, against it, the outcome of which, in the Master Servicer’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to service the Mortgage Loans it is required to service hereunder or to perform any of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified to do business or licensed in one or more states does not materially and adversely affect the performance by it of its obligations hereunder; and
(vi) the performance of the services by the Master Servicer contemplated by this Agreement are in the ordinary course of business of the Master Servicer and the Master Servicer possesses all licenses, permits and other authorizations necessary to perform its duties hereunder in each state, except to the extent that being licensed or having permits or other authorization in one or more states is not necessary for the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Master Servicer by any of the Depositor, the Trustee, the Special Servicer, the Certificate Administrator, the Custodian or the Trust Advisor.
Section 8.21 Merger or Consolidation. Any Person into which the Master Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, consolidation or other change in form to which the Master Servicer shall be a party (but not the surviving entity), or any Person succeeding to the business of the Master Servicer, shall be the successor of the Master Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that the Master Servicer shall have provided a Rating Agency Communication to each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing direct beneficial ownership interests in any Serviced Companion Loan or Serviced B Note. If a transaction described in the preceding sentence occurs and (i) the conditions to the provisions in such sentence are not met, then the Trustee may terminate or (ii) the conditions set forth in the following paragraph are not met, the Trustee shall terminate, the successor’s, survivor’s or resulting entity’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Sections 8.28 and 8.29. The successor or surviving Person shall provide prompt written notice of the merger or consolidation to the Trustee, the Certificate Administrator, the Custodian and the 17g-5 Information Provider.
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Notwithstanding the foregoing, if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Master Servicer may not remain the Master Servicer under this Agreement after (x) being merged or consolidated with or into any Prohibited Party, or (y) transferring all or substantially all of its assets to any Prohibited Party, unless (i) the Master Servicer is the surviving entity of such merger, consolidation or transfer or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld (and if, within forty-five (45) days following the date of delivery of a notice by the Master Servicer to the Depositor of any merger or similar transaction described in the preceding paragraph, the Depositor shall have failed to notify the Master Servicer of the Depositor’s determination to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent).
Section 8.22 Resignation of Master Servicer.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Master Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Trustee. No such resignation shall become effective until a successor master servicer designated by the Trustee, with the consent of the Depositor and the Certificate Administrator, shall have assumed the Master Servicer’s responsibilities and obligations under this Agreement and the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication. Notice of such resignation shall be given promptly by the Master Servicer to the other parties to this Agreement. The Master Servicer shall bear all costs associated with its resignation and the transfer of servicing under this Section 8.22(a). Notwithstanding the foregoing, if the Master Servicer shall cease to serve as such in accordance with this Section 8.22(a) and a successor servicer shall not have been engaged, the Trustee or an agent of the Trustee shall assume the duties and obligations of the Master Servicer under this Agreement. If the Trustee or an agent of the Trustee assumes the duties and obligations of the Master Servicer pursuant to this Section 8.22(a), the Trustee or such agent shall be permitted to resign as master servicer if it has been replaced by a successor servicer satisfying the criteria in the fourth (4th) preceding sentence above.
(b) The Master Servicer may resign from the obligations and duties imposed on it, upon thirty (30) days’ notice to the Depositor, the Trustee and the Certificate Administrator; provided that (i) a successor master servicer (A) is available, (B) has a net worth of at least $15,000,000 and (C) is willing to and does assume the obligations, responsibilities, and covenants to be performed hereunder by the Master Servicer on substantially the same terms and conditions, and for not more than equivalent compensation to that herein provided; (ii) the Master Servicer bears all costs associated with its resignation and the transfer of servicing; (iii) (A)(x) such successor master servicer is acting as master servicer in a commercial mortgage loan securitization that was rated by KBRA and a commercial mortgage loan securitization that was
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rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither KBRA nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such master servicer as master servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal or placement on watch or (y) if such successor master servicer is not acting as master servicer in a commercial mortgage loan securitization that was rated by KBRA and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; (B) such successor master servicer has a master servicer rating of at least “CMS3” from Fitch; and (C) Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of certificates issued in connection with such securitization citing servicing concerns with such successor master servicer as the sole or material factor in such rating action; and (iv) the resigning Master Servicer shall have provided each Rating Agency with a Rating Agency Communication with respect to such servicing transfer.
Section 8.23 Assignment or Delegation of Duties by Master Servicer. The Master Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Master Servicer (as provided in Section 8.4) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Master Servicer hereunder or (B) assign and delegate all of its duties hereunder; provided that with respect to clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer, the holder of any related Serviced B Note (only if such assignment/delegation relates to an A/B Whole Loan or, if applicable, a Loan Pair), the holder of any related Serviced Companion Loan (only if such assignment/delegation relates to a Loan Pair) and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the Depositor and the Trustee an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Master Servicer, with like effect as if originally named as a party to this Agreement or any other subservicing agreement with any Surviving Sub-Servicer; (iii) the purchaser or transferee has a net worth in excess of $15,000,000; (iv) the Master Servicer shall have provided to each Rating Agency a Rating Agency Communication with respect to such assignment and delegation; and (v) the Depositor consents to such assignment and delegation, such consent not to be unreasonably withheld. In the case of any such assignment and delegation in accordance with the requirements of subclause (B) of this Section, the Master Servicer shall be released from its obligations under this Agreement, except that the Master Servicer shall remain liable for all liabilities and obligations incurred by it as the Master Servicer hereunder prior to the satisfaction of the conditions to such assignment set forth in the preceding sentence. Notwithstanding the above, the Master Servicer may appoint the sub-servicers in accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicer and Others.
(a) Neither the Master Servicer nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Master Servicer shall be under any liability to the Trust, the holders of the Certificates, any other party to this Agreement, the Underwriters, the
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Initial Purchasers, the holder of any Serviced Companion Loan or the holder of any Serviced B Note for any action taken or for refraining from the taking of any action in good faith, or using reasonable business judgment, consistent with the Servicing Standard; provided that this provision shall not protect the Master Servicer or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties under this Agreement or by reason of negligent disregard of obligations and duties hereunder. The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the Special Servicer) respecting any matters arising hereunder. The Master Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Mortgage Loans in accordance with this Agreement; provided that the Master Servicer, subject to Section 9.34, may in its sole discretion undertake any such action that it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders, the Trustee and the Trust in the Mortgage Loans, the interests of the holder of any Serviced B Note or the interests of the holder of any Serviced Companion Loan (subject to the Special Servicer’s servicing of Specially Serviced Mortgage Loans as contemplated herein), or shall undertake any such action if instructed to do so by the Trustee. In such event, all legal expenses and costs of such action shall be expenses and costs of the Trust, and the Master Servicer shall be entitled to be reimbursed therefor as Servicing Advances as provided by Section 5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in, any certificates or opinions furnished to the Master Servicer and conforming to the requirements of this Agreement. Subject to the Servicing Standard, the Master Servicer shall have the right to rely on information provided to it by the Special Servicer and Mortgagors, and will have no duty to investigate or verify the accuracy thereof. Neither the Master Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Master Servicer or such Affiliate, director, officer, employee, member, manager or agent, was negligent in ascertaining the pertinent facts. Neither the Master Servicer nor any director, officer, employee, agent or Affiliate, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Master Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent the Master Servicer is unable to recover such amounts from the Person in breach.
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(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) reasonably believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Master Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed by it to be genuine and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer shall be indemnified by the Trustee, the Certificate Administrator, the Custodian and the Special Servicer, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Trustee’s, the Certificate Administrator’s, the Custodian’s or the Special Servicer’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder. The Master Servicer shall immediately notify the Trustee, the Certificate Administrator, the Custodian and the Special Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Master Servicer to indemnification hereunder, whereupon the Trustee, the Certificate Administrator, the Custodian or the Special Servicer, in each case, to the extent the claim is related to its respective willful misfeasance, bad faith or negligence, may assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trustee, the Certificate Administrator, the Custodian and the Special Servicer shall not affect any rights that the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Trustee’s, the Certificate Administrator’s, the Custodian’s or the Special Servicer’s defense of such claim is materially prejudiced thereby. Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Master Servicer hereunder. Any payment hereunder made by the Trustee, the Certificate Administrator, the Custodian or the Special Servicer pursuant to this paragraph to or at the direction of the Master Servicer shall be paid from the Trustee’s, the Certificate Administrator’s, the Custodian’s or
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Special Servicer’s own funds, without reimbursement from the Trust therefor except to the extent achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian or the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Certificate Administrator, the Custodian or the Special Servicer, as the case may be, was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims.
(a) The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer (the “Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of collections on, and other proceeds of, the Mortgage Loans, any Serviced Companion Loans and any Serviced B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Master Servicer Losses”) incurred in connection with any legal action relating to this Agreement, any Mortgage Loans, any Serviced Companion Loans, any Serviced B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses, other than any loss, liability or expense: (i) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (ii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (iii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (iv) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties.
Except as provided in the following sentence, indemnification for Master Servicer Losses described in the preceding paragraph (including in the case of such Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any Serviced B Note. In the case of any such Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and
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Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole.
The Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any Serviced B Note, as set forth above, out of the related Custodial Account) any payments certified by the Master Servicer to the Trustee and the Certificate Administrator as required to be made to the Master Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify each other party to this Agreement, the Trust, and any director, officer, member, manager, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Master Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Depositor, as applicable, shall immediately notify the Master Servicer if a claim is made by any Person with respect to this Agreement or the Mortgage Loans entitling the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trust to indemnification under this Section 8.25(b), whereupon the Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees,
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and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Custodian or the Trust may have to indemnification under this Agreement or otherwise, unless the Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Master Servicer was not culpable or that the Master Servicer did not act with willful misfeasance, bad faith or negligence.
(c) Any Non-Serviced Mortgage Loan Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 8.26 Loan Registry. It is hereby acknowledged and agreed that the loan agreement for each of the Mortgage Loans identified on Schedule VI attached to this Agreement provides that the related Mortgagor or an agent of the related Mortgagor shall maintain a register (the “Lender Register”) on which it will record the related Mortgage Loan and each assignment thereof and/or participation therein. Promptly following the Closing Date, the Master Servicer shall confirm, with respect to each of the Mortgage Loans identified on Schedule VI attached to this Agreement, that the related Mortgagor or its agent has reflected the Trustee on behalf of the Certificateholders as the new lender on the applicable Lender Register.
Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions. The Master Servicer shall act in accordance with this Agreement and the REMIC Provisions and related provisions of the Code in order to create or maintain the status of any REMIC Pool as a REMIC and the Grantor Trust created hereby as a grantor trust under the Code. The Master Servicer shall not (A) take any action or cause any REMIC Pool to take any action that could (i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on contributions pursuant to Section 860G(d)) or (B) take any action or cause the Grantor Trust to take any action that could (i) endanger its status as a grantor trust or (ii) result in the imposition of any tax upon the Grantor Trust unless the Trustee shall have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger
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such status or result in the imposition of such tax. The Master Servicer shall comply with the provisions of Article XII hereof. Notwithstanding the foregoing, the Master Servicer shall not be liable for an Adverse REMIC Event resulting from the failure of any Mortgage Loan by its terms to comply with Revenue Procedure 2010-30, provided that the Master Servicer directly pursues any available remedies against the relevant Seller with respect to any breach or violation of a representation or warranty with respect to such Mortgage Loan’s compliance with Revenue Procedure 2010-30.
Section 8.28 Termination. The obligations and responsibilities of the Master Servicer created hereby (other than the obligation of the Master Servicer to make payments to the Certificate Administrator as set forth in Section 8.29 and the obligations of the Master Servicer to the Trustee, the Certificate Administrator, the Custodian, the Special Servicer and the Trust that survive termination of this Agreement as provided herein) shall terminate (i) on the date which is the later of (A) the final payment or other liquidation of the last of the Mortgage Loans remaining outstanding (and final distribution to the Certificateholders) or (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) if a Servicer Termination Event described in clauses 8.28(a)(iii), (iv), (viii), (ix) or (x) has occurred and is continuing, sixty (60) days following the date on which the Trustee or Depositor gives written notice to the Master Servicer that the Master Servicer is terminated or (iii) if a Servicer Termination Event described in clauses 8.28(a)(i), (ii), (v), (vi) or (vii) has occurred and is continuing, immediately upon the date on which the Trustee or the Depositor gives written notice to the Master Servicer that the Master Servicer is terminated. After any Servicer Termination Event (but subject, in the case of Section 8.28(a)(x), to the waiver right of the Depositor described therein), the Trustee (i) may elect to terminate the Master Servicer by providing such notice, and (ii) shall provide such notice if holders of Certificates representing more than 25% of the aggregate Voting Rights of all Certificates so direct the Trustee.
(a) “Servicer Termination Event,” wherever used herein, means any one of the following events:
(i) any failure by the Master Servicer to remit to the Certificate Administrator or otherwise make any payment required to be remitted by the Master Servicer under the terms of this Agreement, including any required Advances; provided that, if a payment is required to be remitted by the Master Servicer to the Certificate Administrator on the Master Servicer Remittance Date, the failure to remit that payment to the Certificate Administrator shall only be a “Servicer Termination Event” under this clause (a)(i) if that payment has not been remitted to the Certificate Administrator prior to 10:00 a.m. (New York City time) on the related Distribution Date; or
(ii) any failure by the Master Servicer to make a required deposit to the Collection Account which continues unremedied for one (1) Business Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of the duties, covenants or agreements on the part of the Master Servicer contained in this Agreement (other than if, and for so long as, the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing
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Agreement is subject to the reporting requirements of the Exchange Act, the duties, covenants or agreements set forth in Article XIII to the extent described in Section 8.28(a)(ix)) which continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee; provided such cure period will be extended to the extent necessary to permit the Master Servicer to cure such failure if (A) the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such failure and (B) the Certificateholders shall not be materially and adversely affected thereby; provided, further, that such cure period may not exceed ninety (90) days; or
(iv) any breach of the representations and warranties contained in Section 8.20 hereof that materially and adversely affects the interest of any holder of any Class of Certificates and that continues unremedied for a period of thirty (30) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee, provided such cure period will be extended to the extent necessary to permit the Master Servicer to cure such breach if (A) the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such breach and (B) the Certificateholders shall not be materially and adversely affected thereby; provided, further, that such cure period may not exceed ninety (90) days; or
(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or
(vi) the Master Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; or
(viii) (1) KBRA or Moody’s has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if such Rating Agency has been engaged by the applicable Other Depositor to rate such securities) or (B) placed one or more Classes of Certificates or one or more classes of securities backed
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by a Serviced B Note or Serviced Companion Loan (if such Rating Agency has been engaged by the applicable Other Depositor to rate such securities) on “watch status” in contemplation of a ratings downgrade or withdrawal (and, in the case of either of clauses (A) or (B), such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by KBRA or Moody’s, as applicable, within sixty (60) days) and, in the case of either of clauses (A) or (B), KBRA or Moody’s, as applicable, publicly cited servicing concerns with the Master Servicer as the sole or material factor in such rating action, (2) the Master Servicer ceases to have a master servicer rating of at least “CMS3” from Fitch and such rating is not reinstated within sixty (60) days, or (3)(A) the Master Servicer has failed to maintain a ranking by Morningstar equal to or higher than “MOR CS3” as a master servicer and such ranking is not reinstated within sixty (60) days of actual knowledge of such event by the Master Servicer (if the Master Servicer has or had a Morningstar ranking on or after the Closing Date) or (B) if the Master Servicer has not been ranked by Morningstar on or after the Closing Date, Morningstar has (1) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if Morningstar has been engaged by the applicable Other Depositor to rate such securities) or (2) within the prior twelve (12) months, placed one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if Morningstar has been engaged by the applicable Other Depositor to rate such securities) on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (A) or (B), has publicly cited servicing concerns with the Master Servicer as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by Morningstar within sixty (60) days of such event); or
(ix) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Master Servicer or any Additional Servicer or Sub-Servicer appointed by such Master Servicer (other than any Additional Servicer that is a Seller Sub-Servicer) shall fail to deliver any Regulation AB or any Exchange Act reporting items required to be delivered by such servicer under Article XIII of this Agreement at the times required under such Article; or
(x) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of Regulation AB or the Exchange Act, the Master Servicer shall fail to terminate any Sub-Servicer that is a Reporting Servicer subject to and in accordance with Section 8.4(c); provided that the Depositor may waive any such Servicer Termination Event (including waiving the failure by a Reporting Servicer to deliver any applicable reports required pursuant to Regulation AB or the Exchange Act) under this clause (x) in its sole discretion without the consent of the Trustee or any Certificateholders.
(b) Reserved.
(c) A Servicer Termination Event may be waived by the Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of the Certificates
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(except a default (i) in making any required deposits to or payments from the Collection Account or the Distribution Account in accordance with this Agreement, (ii) in remitting payments as received in accordance with this Agreement or (iii) under clauses (ix) and (x) of the definition of “Servicer Termination Event”). If a Servicer Termination Event by the Master Servicer is waived in connection with an A/B Whole Loan or a Loan Pair, the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, shall, to the extent set forth in the related Intercreditor Agreement, be entitled to require that the Master Servicer appoint a sub-servicer to service such A/B Whole Loan or Loan Pair, as the case may be, if such sub-servicer meets the requirements that a successor master servicer would be required to satisfy to be a successor master servicer set forth in Section 8.22(b); provided, that the Master Servicer shall be required to provide each Rating Agency with a Rating Agency Communication.
Section 8.29 Procedure Upon Termination.
(a) Notice of any termination pursuant to clause (i) of the first (1st) paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon which the final transfer by the Master Servicer to the Certificate Administrator shall be made, shall be given promptly in writing by the Master Servicer to the Certificate Administrator no later than the later of (i) five (5) Business Days after the final payment or other liquidation of the last of the Mortgage Loans or (ii) the sixth (6th) day of the month of such final distribution. Promptly upon receipt of any such notice of termination, the Certificate Administrator shall forward such notice of termination to the other parties to this Agreement. Upon any such termination, the duties of the Master Servicer (other than the obligation of the Master Servicer to pay to the Certificate Administrator the amounts remaining in the Collection Account as set forth below and the obligations of the Master Servicer to the Trustee and the Trust that survive termination of this Agreement as provided herein) shall terminate and the Master Servicer shall transfer to the Certificate Administrator the amounts remaining in the Collection Account (and any sub-account) after making the withdrawals permitted to be made pursuant to Section 5.2 and shall thereafter terminate the Collection Account and any other account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to the Master Servicer pursuant to clause (ii) of the first (1st) paragraph of Section 8.28, or on the date on which a written notice of termination is given to the Master Servicer pursuant to clause (iii) of the first (1st) paragraph of Section 8.28 all authority, power and rights of the Master Servicer under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall terminate (except for any rights relating to indemnification, unpaid servicing compensation or unreimbursed Advances and related interest); provided, that in no event shall the termination of the Master Servicer be effective until a successor master servicer shall have (i) succeeded the Master Servicer as successor master servicer, (ii) notified the Master Servicer of such succession and (iii) assumed the Master Servicer’s obligations and responsibilities under this Agreement pursuant to a writing executed by the successor master servicer and delivered to each of the other parties hereto. Except as provided in the next sentence, the Trustee may not succeed the Master Servicer as servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Master Servicer pursuant to Section 8.22(b) hereof. Notwithstanding the foregoing sentence, if the Master Servicer is terminated as a result of an event described in Section 8.28(a)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee shall act as
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successor servicer immediately upon delivery of a notice of termination to the Master Servicer and shall use commercially reasonable efforts within ninety (90) days of assuming the duties of the Master Servicer, either to satisfy the conditions of Section 8.22(b) hereof or to transfer the duties of the Master Servicer to a successor servicer who has satisfied such conditions. The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents or otherwise. The Master Servicer agrees to cooperate with the Trustee, the Custodian and the Certificate Administrator in effecting the termination of the Master Servicer’s responsibilities and rights hereunder as Master Servicer including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor servicer designated by the Trustee to assume the Master Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Master Servicer in the Collection Account and any other account or fund maintained or thereafter received with respect to the Mortgage Loans.
(c) If (i) the Master Servicer receives a written notice of termination (A) pursuant to clause (ii) of the first (1st) paragraph of Section 8.28 relating solely to a Servicer Termination Event set forth in clause (viii) or (ix) of Section 8.28(a) or (B) pursuant to Section 8.21 and (ii) the Master Servicer provides the Trustee with the appropriate “request for proposal” materials within five (5) Business Days after receipt of such written notice of termination, then the Trustee shall promptly thereafter (using such “request for proposal” materials provided by the Master Servicer) solicit good faith bids for the rights to service the Mortgage Loans under this Agreement from at least three (3) but no more than five (5) Qualified Bidders or, if three (3) Qualified Bidders cannot be located, then from as many persons as the Trustee can determine are Qualified Bidders. At the Trustee’s request, the Master Servicer shall supply the Trustee with the names of Persons from whom to solicit such bids. In no event shall the Trustee be responsible if less than three (3) Qualified Bidders submit bids for the right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a condition of its bid, to (i) enter into this Agreement as successor master servicer and (ii) agree to be bound by the terms hereof, not later than sixty (60) days after termination of the Master Servicer hereunder. The Trustee shall select the Qualified Bidder with the highest cash bid (or such other Qualified Bidder as the Master Servicer may direct) (the “Successful Bidder”) to act as successor master servicer hereunder. The Trustee shall direct the Successful Bidder to enter into this Agreement as successor master servicer pursuant to the terms hereof, and in connection therewith to deliver the amount of the Successful Bidder’s cash bid to the Trustee or its designee by wire transfer of immediately available funds to an account specified by the Trustee or its designee no later than 10:00 a.m. New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights hereunder to and by the Successful Bidder and receipt of such cash bid, the Trustee shall remit or cause to be
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remitted to the terminated Master Servicer the amount of such cash bid received from the Successful Bidder (net of all out-of-pocket expenses incurred in connection with obtaining such bid and transferring servicing) by wire transfer of immediately available funds to an account specified by the terminated Master Servicer no later than 1:00 p.m. New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as successor Master Servicer within thirty (30) days after the termination of the Master Servicer hereunder or no Successful Bidder was identified within such 30-day period, the Trustee shall have no further obligations under Section 8.29(c) and may act or may select another successor to act as Master Servicer hereunder in accordance with Section 8.29(b).
(g) If the Master Servicer is terminated as a result of an event described in Section 8.28(a)(viii), then the Master Servicer shall have the right to enter into a sub-servicing agreement or primary servicing agreement with the successor master servicer with respect to all applicable Mortgage Loans that are not subject to a sub-servicing agreement or primary servicing agreement, if the Master Servicer (i) is acting as primary servicer in a commercial mortgage loan securitization that was rated by KBRA and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination (or, in the case of the initial master servicer, prior to the Closing Date), and neither KBRA nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any related class of commercial mortgage securities on watch publicly citing the continuation of such primary servicer as primary servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal (or placement on watch), (ii) has a master servicer rating of at least “CMS3” from Fitch and (iii) has a ranking by Morningstar equal to or higher than “MOR CS3” as a master servicer or if Morningstar has not issued a ranking to such terminated master servicer, then such terminated master servicer is acting as a primary servicer in a commercial mortgage loan securitization that was rated by an NRSRO within the twelve (12) month period prior to the date of determination and Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more related classes of certificates publicly citing servicing concerns with such master servicer as the sole or material factor in such rating action or, in the case of each such Rating Agency, be otherwise acceptable to such Rating Agency as evidenced by a Rating Agency Confirmation.
(h) If the Trustee or an Affiliate acts pursuant to this Section 8.29 as successor to the resigning or terminated Master Servicer, it may reduce the Excess Servicing Fee Rate to the extent that its or such Affiliate’s compensation as successor Master Servicer would otherwise be below the market rate servicing compensation. If the Trustee elects to appoint a successor to the resigning or terminated Master Servicer other than itself or an Affiliate pursuant to this Section 8.29, it may reduce the Excess Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer that meets the requirements of this Section 8.29.
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Section 8.30 Certain Matters with Respect to Joint Mortgage Loans.
(a) If a Seller of a Joint Mortgage Loan (a “Repurchasing Seller”) repurchases, or substitutes for, the Mortgage Note(s) (as such term is defined in this Section 8.30(a)) (a “Repurchased Note”) related to such Joint Mortgage Loan that it sold to the Depositor, but the other Seller of such Joint Mortgage Loan does not repurchase, or substitute for, the Mortgage Note(s) related to such Joint Mortgage Loan that it sold to the Depositor, the provisions of this Section 8.30 shall apply prior to the adoption, pursuant to Section 14.3(i), of any amendment to this Agreement that provides otherwise. Each Seller of a Joint Mortgage Loan has agreed pursuant to the terms of the related Mortgage Loan Purchase Agreement that the terms set forth in this Section 8.30 with respect to the servicing and administration of such Joint Mortgage Loan shall apply if one or more of the Mortgage Notes related to such Joint Mortgage Loan has been repurchased or, by way of substitution, otherwise removed from the Trust and at least one other Mortgage Note related to such Joint Mortgage Loan is included in the Trust until such time as all of the Mortgage Notes related to such Joint Mortgage Loan are no longer included in the Trust. For purposes of this Section 8.30, Section 14.3(i) and Section 14.9 only, “Mortgage Note” shall mean with respect to any Joint Mortgage Loan, each original promissory note that collectively represents the Mortgage Note (as defined in Article I) with respect to such Joint Mortgage Loan and shall not be a collective reference to such promissory notes.
(b) Custody of and record title under the Mortgage Loan documents with respect to the applicable Joint Mortgage Loan shall be held exclusively by the Custodian (on behalf of the Trustee) as provided under this Agreement, except that the Repurchasing Seller shall hold and retain title to its original Repurchased Note and any related endorsements thereof.
(i) All of the Mortgage Notes with respect to any Joint Mortgage Loan shall be of equal priority, and no portion of any Mortgage Note shall have priority or preference over any other portion of the other Mortgage Notes or security therefor. Payments from the related Mortgagor (including, without limitation, any Late Fees) or any other amounts received with respect to each Mortgage Note shall be collected as provided in this Agreement by the Master Servicer and shall be applied upon receipt by the Master Servicer pro rata to each related Mortgage Note based on its respective Repurchased Percentage Interest (as defined in Section 8.30(b)(ii)), subject to Section 8.30(b)(ii). Payments or any other amounts received with respect to the related Repurchased Note shall be held in trust for the benefit of the applicable Repurchasing Seller and remitted (net of its pro rata share of any Master Servicing Fees, Special Servicing Fees, Trust Advisor Fees and any other amounts due to the Master Servicer or the Special Servicer) to the applicable Repurchasing Seller or its designee by the Master Servicer on each Distribution Date pursuant to instructions provided by the applicable Repurchasing Seller and deposited and applied in accordance with this Agreement, subject to Section 8.30(b)(ii). If any Joint Mortgage Loan to which this Section 8.30 applies becomes an REO Loan, payments or any other amounts received with respect to any such Joint Mortgage Loan shall be collected and shall be applied upon receipt by the Master Servicer pro rata to each related Mortgage Note based on its respective Repurchased Percentage Interest, subject to Section 8.30(b)(ii). Any Appraisal Reductions calculated with respect to any Joint Mortgage Loan subject to this
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Section 8.30 shall be allocated to each related Mortgage Note pro rata based upon the respective Unpaid Principal Balances thereof.
(ii) If the Master Servicer or the Special Servicer, as applicable, receives an aggregate payment of less than the aggregate amount due under any such Joint Mortgage Loan at any particular time, the applicable Repurchasing Seller shall receive from the Master Servicer an amount equal to such Repurchasing Seller’s Repurchased Percentage Interest of such payment. All expenses, losses and shortfalls relating solely to such Joint Mortgage Loan including, without limitation, losses of principal or interest, Nonrecoverable Advances, interest on Servicing Advances, Trust Advisor Expenses, Special Servicing Fees, Workout Fees and Liquidation Fees (including any such fees related to the applicable Mortgage Notes), shall be allocated between the holders of the related Mortgage Notes pro rata based upon the respective Unpaid Principal Balances thereof. In no event shall any costs, expenses, fees or any other amounts related to any Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage Loan be deducted from payments or any other amounts received with respect to such Joint Mortgage Loan and payable to the applicable Repurchasing Seller. For purposes of Section 8.30(b)(i), this Section 8.30(b)(ii) and Section 8.30(g), “Repurchased Percentage Interest” shall mean the percentage interest of the applicable Seller in the applicable Joint Mortgage Loan.
(iii) A Joint Mortgage Loan to which this Section 8.30 applies shall be serviced for the benefit of the applicable Repurchasing Seller and the Certificateholders pursuant to the terms and conditions of this Agreement in accordance with the Servicing Standard and in accordance with the provisions herein as if (A) such Joint Mortgage Loan were a Loan Pair, (B) the related Mortgage Note(s) not repurchased were (1) a Serviced Pari Passu Mortgage Loan and (2) the only Mortgage Loan that is part of such Joint Mortgage Loan, and (C) the related Repurchased Note were a Serviced Companion Loan. No Repurchasing Seller shall be permitted to terminate the Master Servicer, the Special Servicer or the Trust Advisor as servicer, special servicer or trust advisor, respectively, of the related Repurchased Note. All rights of the mortgagee under each such Joint Mortgage Loan shall be exercised by the Master Servicer or the Special Servicer, on behalf of the Trust to the extent of its interest therein and the applicable Repurchasing Seller in accordance with this Agreement.
(iv) The related Repurchasing Seller shall be treated hereunder as if it were a Serviced Companion Loan noteholder on a pari passu basis. Funds collected by the Master Servicer or the Special Servicer, as applicable, and applied to the applicable Mortgage Notes shall be deposited and disbursed in accordance with the provisions hereof relating to holders of Loan Pairs that are pari passu in right of payment. Compensation shall be paid to the Master Servicer, the Special Servicer and the Trust Advisor with respect to each Repurchased Note as provided in this Agreement as if each such Mortgage Note were a Serviced Companion Loan. None of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer, the Special Servicer or the Trust Advisor shall have any obligation to make P&I Advances with respect to any Repurchased Note or, if no related Mortgage Note is part of the Trust, a Servicing Advance with respect to any Repurchased Note. Except as otherwise specified herein,
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the Master Servicer and the Special Servicer shall have no reporting requirement with respect to any Repurchased Note other than to deliver to the related Repurchasing Seller any document as is required to be delivered to a holder of a Serviced Companion Loan hereunder.
(c) If any non-repurchased Mortgage Note relating to a Joint Mortgage Loan to which this Section 8.30 applies is considered a Specially Serviced Mortgage Loan, then any related Repurchased Note shall also be a Specially Serviced Mortgage Loan under this Agreement. The Special Servicer shall cause such related Repurchased Note to be specially serviced for the benefit of the applicable Repurchasing Seller in accordance with the terms and provisions set forth in this Agreement and shall be entitled to any Special Servicing Fee, Workout Fee and/or Liquidation Fee payable to the Special Servicer under this Agreement as with respect to a Serviced Companion Loan.
(d) If (A) the Master Servicer shall pay any amount to any Repurchasing Seller pursuant to the terms hereof in the belief or expectation that a related payment has been made or will be received or collected in connection with either or both of the applicable Mortgage Notes and (B) such related payment is not received or collected by the Master Servicer, then the applicable Repurchasing Seller shall promptly on demand by the Master Servicer return such amount to the Master Servicer. If the Master Servicer determines at any time that any amount received or collected by the Master Servicer in respect of any Joint Mortgage Loans to which this Section 8.30 applies must be returned to the related Mortgagor or paid to any other person or entity pursuant to any insolvency law or otherwise, notwithstanding any other provision of this Agreement, the Master Servicer shall not be required to distribute any portion thereof to the related Repurchasing Seller, and such Repurchasing Seller shall promptly on demand by the Master Servicer repay (which obligation shall survive the termination of this Agreement) any portion thereof that the Master Servicer shall have distributed to such Repurchasing Seller, together with interest thereon at such rate, if any, as the Master Servicer may pay to the related Mortgagor or such other person or entity with respect thereto.
(e) Subject to this Agreement (including, without limitation, the consent and consultation rights of the Controlling Class Representative and any consultation rights of the Trust Advisor), the Master Servicer or the Special Servicer, as applicable, on behalf of the holders of any of the Repurchased Notes, shall have the exclusive right and obligation to (i) administer, service and make all decisions and determinations regarding the related Joint Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as provided hereunder. Without limiting the generality of the preceding sentence, the Master Servicer or the Special Servicer, as applicable, may agree to any modification, waiver or amendment of any term of, forgive interest on and principal of, capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release of the related Mortgagor on or any guarantor of any Joint Mortgage Loan it is required to service and administer as contemplated by this Section 8.30, without the consent of the related Repurchasing Seller, subject, however, to the terms of this Agreement as they pertain to a Serviced Companion Loan.
(f) In taking or refraining from taking any action permitted hereunder, the Master Servicer and the Special Servicer shall each be subject to the same degree of care with respect to the administration and servicing of the Joint Mortgage Loans to which this
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Section 8.30 applies as is consistent with this Agreement; and shall be liable to any Repurchasing Seller only to the same extent as set forth herein with respect to any holder of a Serviced Companion Loan.
(g) If the Trustee, the Master Servicer or the Special Servicer has made a Servicing Advance with respect to any Repurchased Note which would otherwise be reimbursable to such advancing party under this Agreement, and such Advance is determined to be a Nonrecoverable Advance, the applicable Repurchasing Seller shall reimburse the Trust in an amount equal to such Repurchasing Seller’s Repurchased Percentage Interest of such Nonrecoverable Advance with interest thereon. Notwithstanding the foregoing, the applicable Repurchasing Seller shall not be obligated to reimburse the Trustee, the Master Servicer or the Special Servicer (and amounts due to the applicable Repurchasing Seller shall not be offset) for Advances or interest thereon or any amounts related to any Mortgage Loan or any other Joint Mortgage Loan other than such amounts relating to the applicable Repurchased Note. To the extent that the applicable Repurchasing Seller reimburses any such Nonrecoverable Advances and such amounts are subsequently recovered, the applicable Repurchasing Seller shall receive a reimbursement from such recovery based on its Repurchased Percentage Interest of such recovery. This reimbursement right shall not limit the Trustee’s, the Master Servicer’s or the Special Servicer’s rights to reimbursement under this Agreement. Notwithstanding anything to the contrary contained herein, the total liability of each Repurchasing Seller shall not exceed an amount equal to its Repurchased Percentage Interest of the amount to be reimbursed.
(h) Each Repurchasing Seller shall have the right to assign the related Repurchased Note; provided that the assignee of the related Repurchased Note shall agree in writing to be bound by the terms of this Agreement.
(i) The Master Servicer and the Special Servicer shall, in connection with their servicing and administrative duties under this Agreement, exercise efforts consistent with the Servicing Standard to execute and deliver, on behalf of each Repurchasing Seller as a holder of a pari passu interest in the applicable Joint Mortgage Loan, any and all financing statements, continuation statements and other documents and instruments necessary to maintain the lien created by any Mortgage or other security document related to the applicable Joint Mortgage Loan on the related Mortgaged Property and related collateral, any and all modifications, waivers, amendments or consents to or with respect to the related Joint Mortgage Loan documents, and any and all instruments of satisfaction or cancellation, or of full release or discharge, and all other comparable instruments with respect to the related Repurchased Note or related Repurchased Notes and the related Mortgaged Property all in accordance with, and subject to, the terms of this Agreement. Each Repurchasing Seller agrees to furnish, or cause to be furnished, to the Master Servicer and the Special Servicer any powers of attorney or other documents necessary or appropriate to enable the Master Servicer or the Special Servicer, as the case may be, to carry out its servicing and administrative duties under this Agreement related to the applicable Joint Mortgage Loan; provided that such Repurchasing Seller shall not be liable, and shall be indemnified by the Master Servicer or the Special Servicer, as applicable, for any negligence with respect to, or misuse of, any such power of attorney by the Master Servicer or the Special Servicer, as the case may be; and further provided that the Master Servicer or the Special Servicer, without the written consent of the applicable Repurchasing Seller, shall not initiate any action in the name of such Repurchasing Seller without indicating its representative
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capacity or take any action with the intent to cause and that actually causes, such Repurchasing Seller to be registered to do business in any state.
Pursuant to the related Mortgage Loan Purchase Agreement, the applicable Repurchasing Seller is required to deliver to the Master Servicer or the Special Servicer, as applicable, the Mortgage Loan documents related to the applicable Repurchased Note, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or otherwise available at law or equity with respect to the related Repurchased Note.
Section 8.31 Delivery of Excluded Information to the Certificate Administrator.
Any Excluded Information that the Master Servicer, the Special Servicer or the Trust Advisor identifies and delivers to the Certificate Administrator for posting to the Certificate Administrator’s Website shall be delivered to the Certificate Administrator via e-mail (or such other electronic means as is mutually acceptable to the parties) in one or more separate files labeled “Excluded Information” followed by the applicable loan name and loan number to the Certificate Administrator (in the same manner as the monthly report information is transmitted) with a copy to cmbs.transactions@usbank.com. For the avoidance of doubt, any information that is not appropriately labeled and delivered in accordance with this Section 8.31 shall not be separately posted as Excluded Information on the Certificate Administrator’s Website, and any information appropriately labeled and delivered to the Certificate Administrator pursuant to this Section shall be posted on the Certificate Administrator’s Website under a separate tab, as provided under Section 5.4(a). When so posted, Excluded Controlling Class Holders shall be prohibited from the access of Excluded Information with respect to any Excluded Controlling Class Mortgage Loans on the Certificate Administrator’s Website (unless loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Mortgage Loans). None of the Master Servicer, the Special Servicer or the Trust Advisor shall have any obligations to separately label and deliver any Excluded Information in accordance with this Section 8.31 until such party has received notice with respect to the related Excluded Controlling Class Mortgage Loan in the form of Exhibit I-1E to this Agreement. Nothing set forth in this Agreement shall prohibit the Controlling Class Representative or any Controlling Class Certificateholder from receiving, requesting or reviewing any Excluded Information relating to any Excluded Controlling Class Mortgage Loan with respect to which the Controlling Class Representative or such Controlling Class Certificateholder is not a Borrower Party.
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ARTICLE
IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer.
(a) Subject to the express provisions of this Agreement, for and on behalf of the Trust and for the benefit of the Certificateholders as a whole, and, solely as it relates to any A/B Whole Loan, for the benefit of the holder of the related Serviced B Note and, solely as it relates to any Loan Pair, for the benefit of the holder of the related Serviced Companion Loan, the Special Servicer shall service the Specially Serviced Mortgage Loans and manage the related REO Properties and, with respect to all Mortgage Loans (other than Non-Serviced Mortgage Loans and related Non-Serviced Companion Loans), Loan Pairs and A/B Whole Loans, process (and its consent shall be required for all) Major Decisions and Special Servicer Decisions (provided, that the Master Servicer and the Special Servicer may mutually agree that the Master Servicer shall process, and obtain the prior written consent of the Special Servicer with respect to, any Major Decision or Special Servicer Decision with respect to non-Specially Serviced Mortgage Loans), in all cases in accordance with the Servicing Standard and the terms of this Agreement. Certain of the provisions of this Article IX make explicit reference to their applicability to Mortgage Loans, any Serviced Companion Loan and any Serviced B Note; notwithstanding such explicit references, references in this Article IX to “Mortgage Loans” shall be construed, unless otherwise specified, to refer also to such Serviced B Note and such Serviced Companion Loan (but any other terms that are defined in Article I and used in this Article IX shall be construed according to such definitions without regard to this sentence).
(b) Subject to Section 5.4(e), the Special Servicer shall cooperate with the Master Servicer and provide the Master Servicer with the information reasonably requested by the Master Servicer, in writing, to the extent required to allow the Master Servicer to perform its servicing obligations with respect to the Specially Serviced Mortgage Loans hereunder. Except with respect to Major Decisions and Special Servicer Decisions, the Special Servicer’s obligations with respect to the servicing of any Specially Serviced Mortgage Loan and any related REO Properties shall terminate when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), any holder of a related Serviced B Note or Serviced Companion Loan and the Certificate Administrator within five (5) Business Days after becoming aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage Loan. Upon the receipt of such notice by the Master Servicer and the Certificate Administrator, such Mortgage Loan shall constitute a Rehabilitated Mortgage Loan and will be serviced by the Master Servicer.
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(d) Upon the occurrence of a Servicing Transfer Event with respect to a Mortgage Loan and upon the reasonable request of the Special Servicer, the Master Servicer shall mark its records for such Mortgage Loan to cause any monthly statements for amounts due thereon to be sent thereafter to the Special Servicer rather than the related Mortgagor. Upon receipt of any such monthly statement, the Special Servicer shall, within two (2) Business Days, advise the Master Servicer of any changes to be made, and return the monthly statement to the Master Servicer. The Master Servicer shall thereafter promptly send the corrected monthly statement to the Mortgagor. If a Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall resume sending the monthly statements to the Mortgagor as it did before such Mortgage Loan became a Specially Serviced Mortgage Loan.
(e) (i) All amounts collected by the Master Servicer with respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a Serviced B Note or Serviced Companion Loan) shall be deposited in the Collection Account (or applicable sub-account thereof), and (ii) all amounts collected by the Master Servicer with respect to a Specially Serviced Mortgage Loan that is a Serviced B Note or a Serviced Companion Loan shall be deposited in the related Custodial Account. The Master Servicer shall within three (3) Business Days after receipt of any such payment, notify the Special Servicer of the receipt of such payment and the amount thereof. The Special Servicer shall, within two (2) Business Days thereafter, instruct the Master Servicer in writing how to apply such payment (with the application of such payments to be made in accordance with the related Mortgage Loan documents (including the related Intercreditor Agreement, if any) or in accordance with this Agreement, as applicable). The Special Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all special servicing fees, liquidation fees and workout fees called for under the terms and provisions of the Mortgage Loan documents for each applicable Specially Serviced Mortgage Loan.
(f) After the occurrence of any Servicing Transfer Event with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) if it is the subject of any Environmental Insurance Policy, (i) the Special Servicer shall monitor the dates by which any claim must be made or action must be taken under such Environmental Insurance Policy to achieve the payment of all amounts thereunder to which the Trust is entitled if the Special Servicer has actual knowledge of any event giving rise to a claim under such Environmental Insurance Policy and (ii) if the Special Servicer has actual knowledge of such an event with respect to such Mortgage Loan, the Special Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of the related Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer (of if applicable, the Special Servicer) as a Servicing Advance. All extraordinary expenses (but not ordinary and routine or anticipated expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.1(f) shall be paid by the Trust.
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer. The Special Servicer, at its expense, shall maintain in effect a Servicer Fidelity
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Bond and a Servicer Errors and Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Special Servicer self-insures as provided below) and be in form and amount consistent with the Servicing Standard. If any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Special Servicer or its corporate parent is not less than (a) “A3” as rated by Moody’s, (b) “A-” as rated by Fitch or (c) “A-:X” as rated by A.M. Best Company, Inc., the Special Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 9.3 Special Servicer General Powers and Duties.
(a) Subject to the other terms and provisions of this Agreement (and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer), including Section 10.3, the Special Servicer is hereby authorized and empowered when the Special Servicer believes it appropriate in accordance with the Servicing Standard, to take any and all the actions with respect to Non-Specially Serviced Mortgage Loans (when processing or approving Major Decisions or Special Servicer Decisions in respect thereof) and Specially Serviced Mortgage Loans, in each case, that the Master Servicer may perform as set forth in Section 8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust (or holder of a Serviced B Note or Serviced Companion Loan, as applicable), any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to Non-Specially Serviced Mortgage Loans (when processing Major Decisions or Special Servicer Decisions in respect thereof) and the Specially Serviced Mortgage Loans and with respect to the related REO Properties and (ii) to effectuate foreclosure or other conversion of the ownership of any Mortgaged Property securing a Specially Serviced Mortgage Loan. The Trustee shall execute on the Closing Date a Power of Attorney substantially in the form of (it being understood for the avoidance of doubt that anything other than solely ministerial changes requires mutual agreement as stated below) Exhibit O-2 (or such other form as mutually agreed to by the Trustee and the Special Servicer) hereto and otherwise reasonably acceptable to the Trustee and Special Servicer and shall furnish the Special Servicer from time to time, upon a written request from a Special Servicing Officer, with any additional powers of attorney of the Trustee, substantially in the form of (it being understood for the avoidance of doubt that anything other than solely ministerial changes requires mutual agreement as stated below) Exhibit O-2 (or such other form as mutually agreed to by the Trustee and the Special Servicer) with such additions as may be reasonably necessary to empower the Special Servicer to take such actions as it determines to be reasonably necessary to comply with its servicing, administrative and management duties hereunder, and the Trustee shall execute and deliver or cause to be executed and delivered such other documents as a Special Servicing Officer may request in writing, that are necessary or appropriate to enable the Special Servicer to service, administer and manage the Specially Serviced Mortgage Loans and carry out its duties hereunder, in each case as the Special Servicer determines is in accordance with the Servicing Standard and the terms of this Agreement; provided, that, the Special Servicer shall not (i) take any action with the intent to cause and that actually causes the Trustee to be registered to do business in any state; and (ii) without the Trustee’s prior written consent initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Special Servicer’s representative capacity; provided, further, that the preceding clause (ii) shall not apply to the initiation of actions relating to a Mortgage Loan that the Special Servicer is servicing
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pursuant to its respective duties herein (in which case the Special Servicer shall give prompt prior notice to the Trustee of the initiation of such action). Upon receipt of any such advice from the Trustee, the Special Servicer shall take such action in the name of such Person or Persons, in trust for the Trust (or holder of a Serviced B Note or Serviced Companion Loan, if applicable), as shall be consistent with the Opinion of Counsel obtained by the Trustee. Such Person or Persons shall acknowledge in writing that such action is being taken by the Special Servicer in the name of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, if applicable). In the performance of its duties hereunder, the Special Servicer shall be an independent contractor and shall not, except in those instances where it is, after notice to the Trustee as provided above, taking action in the name of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, if applicable), be deemed to be the agent of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, as applicable). If the Special Servicer receives any notice of a suit, litigation or proceeding in the name of U.S. Bank National Association, either individually (with respect to the Certificates or the transactions contemplated by this Agreement) or in its capacity as Trustee, then the Special Servicer shall promptly forward a copy of same to the Trustee. The Special Servicer shall indemnify the Trustee for any loss, liability or reasonable expense (including attorneys’ fees) incurred by the Trustee or any director, officer, employee, agent or Controlling Person of it or its affiliates in connection with any negligent or intentional misuse of the foregoing powers of attorney furnished to the Special Servicer by the Trustee. Such indemnification shall survive the resignation or termination of the Special Servicer hereunder, the resignation or termination of the Trustee and the termination of this Agreement. The Special Servicer shall not have any responsibility or liability for any act or omission of the Trustee, the Custodian, the Master Servicer or the Depositor that is not attributable to the failure of the Special Servicer to perform its obligations hereunder. The Special Servicer may conclusively rely on any advice of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage Loans, managing any related REO Properties and processing Major Decisions and Special Servicer Decisions, the Special Servicer shall employ procedures consistent with the Servicing Standard. The Special Servicer shall inspect, or cause to be inspected each Mortgaged Property relating to a Specially Serviced Mortgage Loan as soon as practicable after the subject Mortgage Loan became a Specially Serviced Mortgage Loan and thereafter at least every twelve (12) months until such Mortgage Loan ceases to be a Specially Serviced Mortgage Loan. The Special Servicer shall provide to the Master Servicer (who shall provide, solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note, and solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan), the Certificate Administrator, the 17g-5 Information Provider and, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative copies of the Inspection Reports relating to such inspections as soon as practicable after the completion of any inspection. Any cost of any inspection performed under this Section 9.3(b) shall be an expense of the Trust and shall be treated as a Servicing Advance or as an Additional Trust Expense if such Servicing Advance would be a Nonrecoverable Advance. Notwithstanding the foregoing, the Special Servicer shall not be liable for its failure to prepare the reports required pursuant to this Section 9.3(b) with respect to any Specially Serviced Mortgage Loan or REO Property if such failure is caused by the Master Servicer’s failure to perform its obligations or provide information to the Special Servicer as required by this Agreement.
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(c) Pursuant to the related Intercreditor Agreement, each owner of a Serviced Companion Loan has agreed that the Master Servicer and the Special Servicer are authorized and obligated to service and administer such Serviced Companion Loan pursuant to this Agreement.
(d) Pursuant to the applicable Non-Serviced Mortgage Loan Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed that such owner’s rights in, to and under such Non-Serviced Mortgage Loan are subject to the servicing and all other rights of the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to service and administer such Non-Serviced Mortgage Loan pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Special Servicer’s obligations and responsibilities hereunder and the Special Servicer’s authority with respect to any Non-Serviced Mortgage Loan are limited by and subject to the terms of the applicable Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer with respect thereto under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Special Servicer shall take such actions as it shall deem reasonably necessary to facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer including, but not limited to, delivering appropriate Requests for Release to the Trustee and Custodian (if any) in order to deliver any portion of the related Mortgage File to the applicable Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, (i) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall be entitled to the rights of the “Non-Directing Holder” (or similar term) under the related Intercreditor Agreement and (ii) at no time shall the Trust Advisor be entitled to the rights of the “Non-Directing Holder” (or similar term) under the related Intercreditor Agreement.
Section 9.4 Sub-Servicers. The Special Servicer shall have the right to use a Sub-Servicer on the same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer of the Master Servicer, except as set forth in this Section 9.4. The Special Servicer shall notify the Master Servicer, Trustee, Custodian and solely as it relates to any A/B Whole Loan, the holder of the related Serviced B Note, and solely as it relates to any Loan Pair, the holder of the related Serviced Companion Loan, of the appointment of any Sub-Servicer of the Special Servicer. The Special Servicer shall be solely responsible for the payment of compensation to any Sub-Servicer appointed by it. The Special Servicer shall not enter into future sub-servicing contracts unless it has provided to each Rating Agency a Rating Agency Communication with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, (i) the Special Servicer shall not enter into any sub-servicing agreement with respect to any Mortgage Loan that provides for the performance by third parties of any or all of its obligations hereunder, without the consent of the Applicable Control Party (which consent shall not be unreasonably delayed or withheld), except to the extent necessary for the Special Servicer
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to comply with applicable regulatory requirements, (ii) no sub-servicer shall be permitted under any sub-servicing agreement to make material servicing decisions, such as loan modifications or determinations as to the manner or timing of enforcing remedies under the Mortgage Loan documents, without the consent of the Special Servicer and (iii) after the Closing Date, if and for so long as the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, the Special Servicer, shall not enter into a sub-servicing agreement with any Prohibited Party.
Section 9.5 “Due-on-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; Due-on-Encumbrance Clauses. Subject to Section 10.3, the terms and conditions of any related Intercreditor Agreement (in the case of any A/B Whole Loan or Loan Pair) and the limitations of Section 12.3, the Special Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or may at the Mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or ownership interest in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not be assumed, or ownership interests in the related Mortgagor may not be transferred, without the consent of the related Mortgagee in connection with any such sale or other transfer;
then, the Special Servicer, on behalf of the Trust, shall, subject to Section 10.3 and, in the case of any A/B Whole Loan or Loan Pair, the related Intercreditor Agreement, and in accordance with the Servicing Standard and the REMIC Provisions, take such actions as it deems to be in the best economic interest of the Trust in accordance with the Servicing Standard, and may waive or enforce any due-on-sale clause contained in the related Mortgage Note or Mortgage; provided, that the Special Servicer provides each Rating Agency with a Rating Agency Communication prior to waiving the effect of such provision. In connection with each such Rating Agency Communication, the Special Servicer shall prepare and, subject to Section 5.7, deliver to the Rating Agencies a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation. As to any Non-Specially Serviced Mortgage Loan that contains a provision in the nature of a “due-on-sale” clause, the Special Servicer shall have the rights and duties set forth in Section 8.7.
In connection with the waiver of any due-on-sale clause under a Specially Serviced Mortgage Loan in accordance with this Section 9.5(a), the Special Servicer is authorized to take or enter into an assignment and assumption agreement from or with the Person to whom such property has been or is about to be conveyed, and/or to release the original Mortgagor from liability upon the Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon; provided that, except as otherwise permitted by Section 9.5(c), any such assignment and assumption or substitution agreement shall contain no terms that could result in an Adverse REMIC Event. To the extent permitted by law, the Special Servicer shall
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enter into an assumption or substitution agreement that is required under the related Mortgage Loan documents (either as a matter of right or upon satisfaction of specified conditions) and shall otherwise enter into any assumption or substitution agreement only if the credit status of the prospective new mortgagor and the underwriting of the new mortgagor is in compliance with the Special Servicer’s regular commercial mortgage origination or servicing standards and criteria. The Special Servicer shall notify the Master Servicer of any such assignment and assumption or substitution agreement and the Special Servicer shall forward to the Custodian (on the Trustee’s behalf) the original of such agreement (and to the Master Servicer, a copy thereof), which original shall be added by the Custodian (on the Trustee’s behalf) to the related Mortgage File and shall, for all purposes, be considered a part of such Mortgage File to the same extent as all other documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent to the creation of any lien on a Mortgaged Property that is senior to, or on a parity with, the lien of the related Mortgage unless it is consistent with the Servicing Standard and the REMIC Provisions and the Special Servicer has received the consent of the Applicable Control Party. Nothing in this Section 9.5 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assignment and assumption of a Specially Serviced Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any lien or other encumbrance with respect to such Mortgaged Property.
(c) Subject to the Servicing Standard, the rights and duties of the Master Servicer under Section 8.18 and any rights of the Controlling Class Representative set forth in Section 10.3, the Special Servicer may enter into any modification, waiver or amendment (including, without limitation, the substitution or release of collateral or the pledge of additional collateral) of the terms of any Specially Serviced Mortgage Loan, including any modification, waiver or amendment to (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled Payment on any Specially Serviced Mortgage Loan, including by way of a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage Loan during any period during which voluntary Principal Prepayments are prohibited, provided, in the case of any such modification, waiver or amendment, that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer, such default is reasonably foreseeable, (B) in the reasonable judgment of the Special Servicer, such modification, waiver or amendment would result in a recovery to Certificateholders, the holder of the related Serviced Companion Loan and the holder of any related Serviced B Note (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) that would be equal to or greater than the recovery that would result if the applicable Specially Serviced Mortgage Loan were liquidated, as set forth in writing delivered by the Special Servicer to the Trustee and the Certificate Administrator, (C) such modification, waiver or amendment would not cause an Adverse REMIC Event or Adverse Grantor Trust Event (including with respect to any securities evidencing interests in any A Note or any B Note) to occur, and (D) if notice to, receipt of consent, approval or direction from, or consultation with the Controlling
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Class Representative (during any Subordinate Control Period and any Collective Consultation Period) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, is required in connection with such modification, waiver or amendment pursuant to Section 10.3 or any applicable Intercreditor Agreement, then the Special Servicer has made such notice, obtained (or been deemed to have obtained) such consent, approval or direction or completed such consultation, as the case may be. The Special Servicer, with respect to any Serviced B Note and any Serviced Companion Loan that is a Specially Serviced Mortgage Loan, shall notify the holder of the Serviced B Note and the Serviced Companion Loan, as applicable, of any modification of the monthly payments of an A/B Whole Loan or a Loan Pair, as the case may be, and such monthly payments shall be allocated in accordance with the related Intercreditor Agreement.
In no event, however, shall the Special Servicer (i) extend the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is five (5) years prior to the Rated Final Distribution Date or (ii) if the Specially Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of such Specially Serviced Mortgage Loan unless the Special Servicer gives due consideration to the remaining term of such ground lease. The Special Servicer shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged Property covered by a group secured creditor impaired property environmental insurance policy for more than five (5) years beyond such Mortgage Loan’s Maturity Date unless a new Phase I Environmental Report indicates that there is no environmental condition or the Mortgagor obtains, at its expense, an extension of such policy on the same material terms and conditions to cover the period through five (5) years past the extended Maturity Date, provided that, if such Mortgage Loan is secured by a ground lease, the Special Servicer shall give due consideration to the remaining term of the ground lease.
The determination of the Special Servicer contemplated by clause (B) of the proviso to the first (1st) paragraph of this Section 9.5(c) shall be evidenced by an Officer’s Certificate certifying the information in the proviso to the first (1st) paragraph under this subsection (c).
(d) If the Special Servicer intends to permit a Mortgagor to substitute collateral for all or any portion of a Mortgaged Property pursuant to Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust, the holder of any Serviced Companion Loan or the holder of any Serviced B Note in such collateral would be perfected by possession, or if such collateral requires special care or protection, then prior to agreeing to such substitution or addition of collateral, the Special Servicer shall make arrangements for such possession, care or protection, and prior to agreeing to such substitution or addition of collateral (or such arrangement for possession, care or protection) shall obtain the prior written consent of the Trustee with respect thereto (which consent shall not be unreasonably withheld, delayed or conditioned); provided, that the Trustee shall not be required (but has the option) to consent to any substitution or addition of collateral or to hold any such collateral which will require the Trustee to undertake any additional duties or obligations or incur any additional expense. The Special Servicer shall provide each Rating Agency with a
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Rating Agency Communication in connection with any consent to the substitution of collateral for any portion of the Mortgaged Property pursuant to Section 9.5(c).
(e) The Special Servicer shall promptly deliver to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Trustee, the Custodian, the Certificate Administrator and, subject to Section 5.7, the Rating Agencies (and, solely with respect to an A/B Whole Loan, the holder of the related Serviced B Note and solely with respect to a Loan Pair, the holder of the related Serviced Companion Loan) a notice, specifying any assignments and assumptions, modifications, waivers or amendments executed pursuant to this Section 9.5, such notice identifying the affected Specially Serviced Mortgage Loan. Such notice shall set forth the reasons for such waiver, modification, or amendment (including, but not limited to, information such as related income and expense statements, rent rolls, occupancy status, property inspections, and an internal or external appraisal performed in accordance with MAI standards and methodologies (and, if done externally, the cost of such appraisal shall be recoverable as a Servicing Advance subject to the provisions of Section 4.4 hereof)). The Special Servicer shall also deliver to the Custodian (on the Trustee’s behalf), for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment promptly following the execution thereof (with a copy thereof to the Master Servicer).
(f) The Special Servicer may require, in its discretion (unless prohibited or otherwise provided in the related Mortgage Loan documents), as a condition to granting any request by a Mortgagor for any consent, modification, waiver or amendment, that such Mortgagor pay a reasonable and customary modification fee to the extent permitted by law. No fee described in this Section shall be collected by the Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of the Mortgage Loan if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing, the Special Servicer shall use its reasonable efforts, in accordance with the Servicing Standard, to collect any modification fees and other expenses connected with a permitted modification of a Mortgage Loan from the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a proposed modification shall not impair the right of the Special Servicer, the Master Servicer, the Custodian or the Trustee to be reimbursed by the Trust for such expenses (including any cost and expense associated with any Opinion of Counsel).
(g) The Special Servicer shall cooperate with the Master Servicer (to the extent required by, and as provided in, Section 8.7) in connection with assignments and assumptions of any Non-Specially Serviced Mortgage Loan. As to any Non-Specially Serviced Mortgage Loan that contains a provision in the nature of a “due-on-encumbrance” clause, the Special Servicer shall have the rights and duties set forth in Section 8.7.
(h) If any Specially Serviced Mortgage Loan which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor,
then, for so long as such Specially Serviced Mortgage Loan is included in the Trust, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise (or, subject to Section 10.3 and, in the case of any A/B Whole Loan or the related Loan Pair, the related Intercreditor Agreement, waive its right to exercise) any right it may have with respect to such Specially Serviced Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to the creation of any such additional lien or other encumbrance, in a manner consistent with the Servicing Standard. Prior to waiving the effect of such provision with respect to such Specially Serviced Mortgage Loan, the Special Servicer shall provide each Rating Agency with a Rating Agency Communication regarding such waiver.
Section 9.6 Custodian to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification that payment in full will be escrowed in a manner customary for such purposes, or the complete defeasance of a Mortgage Loan, the Special Servicer will immediately notify the Master Servicer. The Special Servicer shall determine, in accordance with the Servicing Standard, whether an instrument of satisfaction shall be delivered and, if the Special Servicer determines that such instrument should be delivered, the Special Servicer shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or foreclosure of any Specially Serviced Mortgage Loan or the management of the related REO Property and in accordance with the Servicing Standard, the Trustee shall execute or cause to be executed such documents as shall be prepared and furnished to the Trustee by a Special Servicing Officer (in form reasonably acceptable to the Trustee) and as are necessary for such purposes. The Custodian (on the Trustee’s behalf) shall, upon request of the Special Servicer and delivery to the Trustee and Custodian of a request for release signed by a Special Servicing Officer substantially in the form of Exhibit C, release the related Mortgage File to the Special Servicer.
(c) The Special Servicer shall, with respect to any Rehabilitated Mortgage Loan, deliver to the Master Servicer copies of all documents and instruments in the possession of the Special Servicer related to such Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the Servicing Standard, the Special Servicer shall notify, in writing, the Mortgagor under such Rehabilitated Mortgage Loan of such transfer.
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(d) With respect to any Non-Serviced Loan Combination, if pursuant to the related Intercreditor Agreement and the Other Companion Loan Pooling and Servicing Agreement, and as appropriate for enforcing the terms of such Non-Serviced Loan Combination, the related Other Master Servicer or Other Special Servicer requests delivery to it of the original Mortgage Note, then the Custodian shall release or cause the release of such original Mortgage Note to such party or its designee and shall retain a copy thereof, subject to the execution of an agreement by such party to safeguard such original Mortgage Note and to return such original Mortgage Note promptly when no longer required by such party for such purpose.
(e) With respect to any Loan Pair, if pursuant to the related Intercreditor Agreement, and as appropriate for enforcing the terms of such Loan Pair, the Special Servicer requests from the related Other Custodian delivery to it of the original mortgage note evidencing the related Serviced Companion Loan, the Special Servicer shall agree to safeguard such original mortgage note and to return such original mortgage note promptly when no longer required by it for such purpose.
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee.
(a) The Special Servicer shall transmit to the Custodian (on the Trustee’s behalf) such documents and instruments coming into the possession of the Special Servicer as from time to time are required by the terms hereof to be delivered to the Custodian (on the Trustee’s behalf). Any funds received by the Special Servicer in respect of any Mortgage Loan, A/B Whole Loan, Loan Pair and/or Specially Serviced Mortgage Loan or any REO Property or which otherwise are collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any REO Property shall be transmitted to the Master Servicer within one (1) Business Day of receipt of properly identified funds for deposit into the Collection Account (provided, that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Special Servicer shall use commercially reasonable efforts to remit such amounts to the Master Servicer within one (1) Business Day of receipt of such amounts but, in any event, the Special Servicer shall remit such amounts to the Master Servicer within two (2) Business Days of receipt of such amounts), except that if such amounts relate to REO Income, they shall be deposited in the REO Account. Subject to the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement, the Special Servicer shall provide access to information and documentation regarding the Specially Serviced Mortgage Loans to the Trustee, the Custodian, the Master Servicer, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), and their respective agents and accountants at any time upon reasonable written request and during normal business hours, provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder; provided, further, that the Trustee, the Certificate Administrator and the Custodian shall be entitled to receive from the Special Servicer all such information in the Special Servicer’s possession as the Trustee, the Certificate Administrator and the Custodian shall reasonably require to perform their respective duties
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hereunder. In fulfilling such a request, the Special Servicer shall not be responsible for determining whether such information is sufficient for the Trustee’s, the Custodian’s, the Master Servicer’s, the Certificate Administrator’s, the Controlling Class Representative’s or the Trust Advisor’s purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or the holder of any related Serviced B Note (if not included in the Trust) and/or related Serviced Companion Loan, if an A/B Whole Loan or Loan Pair is involved) owns the Specially Serviced Mortgage Loans and all Mortgage Files representing such Specially Serviced Mortgage Loans and all funds now or hereafter held by, or under the control of, the Special Servicer that are collected by the Special Servicer in connection with the Specially Serviced Mortgage Loans (but excluding any Special Servicer Compensation and all other amounts to which the Special Servicer is entitled hereunder); and the Special Servicer agrees that all documents or instruments constituting part of the Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans which come into the possession or custody of, or which are subject to the control of, the Special Servicer, shall be held by the Special Servicer for and on behalf of the Trust (and/or the holder of the related Serviced B Note (if not included in the Trust) and/or related Serviced Companion Loan, if an A/B Whole Loan or Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create, incur or subject any Specially Serviced Mortgage Loans, or any funds that are required to be deposited in any REO Account to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, nor assert by legal action or otherwise any claim or right of setoff against any Specially Serviced Mortgage Loan or any funds, collected on, or in connection with, a Specially Serviced Mortgage Loan.
Section 9.8 Representations, Warranties and Covenants of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to and covenants with each other party to this Agreement, as of the Closing Date:
(i) the Special Servicer is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of Florida, and shall be and thereafter remain in compliance with the laws of each State in which any Mortgaged Property (including any REO Property) which is, or is related to, a Specially Serviced Mortgage Loan is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Special Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement. The Special Servicer has duly and validly authorized the execution, delivery and performance by it of this Agreement and this Agreement has been duly executed and delivered by the Special Servicer; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties to this Agreement,
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evidences the valid and binding obligation of the Special Servicer enforceable against the Special Servicer in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership and other similar laws affecting creditors’ rights generally (and, to the extent applicable, the rights of creditors of national banks) as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(iii) the execution and delivery of this Agreement by the Special Servicer, the consummation by the Special Servicer of the transactions contemplated hereby, and the fulfillment of or compliance by the Special Servicer with the terms and conditions of this Agreement will not (1) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, in any manner that materially and adversely affects its ability to perform its obligations under this Agreement or (2) result in a breach of any term or provision of its organizational documents;
(iv) no litigation is pending or, to the best of the Special Servicer’s knowledge, threatened, against it, the outcome of which, in the Special Servicer’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to service the Specially Serviced Mortgage Loans it is required to service hereunder or to perform any of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified to do business or licensed in one or more states does not materially and adversely affect the performance by it of its obligations hereunder; and
(vi) the Special Servicer possesses all licenses, permits and other authorizations necessary to perform its duties hereunder in each state, except to the extent that being licensed or having permits or other authorization in one or more states is not necessary for the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of
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written notice to the Special Servicer by any of the Depositor, the Trustee, the Custodian, the Master Servicer, the Certificate Administrator or the Trust Advisor.
Section 9.9 Standard Hazard, Flood and Commercial General Liability Policies.
(a) For all REO Properties (other than REO Properties relating to Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts, consistent with the Servicing Standard, to maintain with a Qualified Insurer (A) a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage Loan documents and the related Mortgage so require, contains no exclusion as to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002) which does not provide for reduction due to depreciation in an amount which is not less than the full replacement cost of the improvements of such REO Property or in an amount not less than the Unpaid Principal Balance plus all unpaid interest and the cumulative amount of Servicing Advances (plus Advance Interest) made with respect to such Mortgage Loan, any related Serviced B Note and Serviced Companion Loan, whichever is less, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (B) any other insurance coverage for such REO Property that the related Mortgagor was required to maintain for the related Mortgaged Property under the related Mortgage, subject, as to earthquake insurance, to the second (2nd) sentence following this sentence. If the improvements to the Mortgaged Property are in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and flood insurance has been made available), the Special Servicer shall maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage equal to the lesser of the then Unpaid Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum insurance coverage required under such current guidelines. It is understood and agreed that the Special Servicer has no obligation to obtain earthquake or other additional insurance on REO Property, except as required by law but at its sole option and at the Trust’s expense, it (if required at origination and is available at commercially reasonable rates) may obtain such earthquake insurance. The Special Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to obtain a commercial general liability policy for all REO Properties (other than any REO Property relating to any Non-Serviced Mortgage Loan). The Special Servicer shall, to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard) and to the extent consistent with the Servicing Standard, use its reasonable efforts to maintain a Rent Loss Policy covering revenues for a period of at least twelve months and a commercial general liability policy with coverage comparable to prudent lending requirements in an amount not less than $1 million per occurrence. All applicable policies required to be maintained by the Special Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee and be endorsed with a standard mortgagee clause. The costs of such insurance shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance policies maintained pursuant to this Section 9.9 (other than amounts to be applied to the restoration or repair of the REO Property) shall be deposited into the applicable REO Account for further distribution to the Master Servicer pursuant to Section 9.10. Any cost incurred in
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maintaining the insurance required hereby for any REO Property (other than any REO Property relating to any Non-Serviced Mortgage Loan) shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be required in any event to maintain or obtain any insurance coverage beyond what is available at commercially reasonable rates or that is not of the type previously required by the Mortgage Loan documents; provided that, subject to Section 10.3, and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall maintain insurance against property damages resulting from terrorism or similar acts if the terms of the related Mortgage Loan documents so require unless the Special Servicer determines that the failure to maintain such insurance would have been an Acceptable Insurance Default under the related Mortgage Loan.
(d) The Special Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 9.9 either (i) if the Special Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all of the applicable Mortgage Loans, any Serviced Companion Loan and any Serviced B Note serviced by it, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is obtained from a Qualified Insurer or (ii) if the Special Servicer or its corporate parent, for so long as the rating of such Person’s long-term debt obligations or long-term deposit accounts are not less than “A3” as rated by Moody’s and not less than “A” as rated by Fitch or an A.M. Best Company, Inc. equivalent, self-insures for its obligations as set forth in this Section 9.9. If the Special Servicer shall cause any Mortgage Loan, Serviced Companion Loan and Serviced B Note to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such Mortgage Loan, Serviced Companion Loan and Serviced B Note (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Loan is then covered thereby), if not borne by the related Mortgagor, shall be paid by the Special Servicer, at its option, or by the Master Servicer, in either case as a Servicing Advance, subject to the provisions of Section 4.4 hereof. If such policy contains a deductible clause, the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property a policy complying with this Section 9.9 and there shall have been a loss that would have been covered by such policy, deposit in the Collection Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan, A/B Whole Loan or Loan Pair or (ii) if there is no deductible limitation required under the Mortgage Loan, A/B Whole Loan or Loan Pair, the deductible amount with respect to insurance policies generally available on properties similar to the related Mortgaged Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount. In connection with its activities as administrator and servicer of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note, the Special Servicer agrees to present, on its behalf and on behalf of the Trustee, claims under any such master force placed or blanket insurance policy.
Section 9.10 Presentment of Claims and Collection of Proceeds. The Special Servicer will prepare and present or cause to be prepared and presented on behalf of the Trustee
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all claims under the Insurance Policies with respect to REO Property (other than any REO Property relating to any Non-Serviced Mortgage Loan), and take such actions (including the negotiation, settlement, compromise or enforcement of the insured’s claim) as shall be necessary to recover under such policies. Any proceeds disbursed to the Special Servicer in respect of such policies shall be promptly remitted to the Master Servicer for deposit into the Collection Account, upon receipt of properly identified funds, except for any amounts realized that are to be applied to the repair or restoration of the applicable REO Property in accordance with the Servicing Standard. Any extraordinary expenses (but not ordinary and routine or anticipated expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.10 shall be paid by the Trust.
Section 9.11 Compensation to the Special Servicer.
(a) As compensation for its activities hereunder, the Special Servicer shall be entitled to the Special Servicer Compensation. Such amounts, if any, collected by the Special Servicer from the related Mortgagor shall be transferred by the Special Servicer to the Master Servicer within one (1) Business Day of receipt thereof (provided, that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Special Servicer shall use commercially reasonable efforts to remit such amounts to the Master Servicer within one (1) Business Day of receipt of such amounts but, in any event, the Special Servicer shall remit such amounts to the Master Servicer within two (2) Business Days of receipt of such amounts), and deposited by the Master Servicer in the Collection Account. The Special Servicer shall be entitled to receive a Liquidation Fee from the Liquidation Proceeds received in connection with a Specially Serviced Mortgage Loan or REO Property. With respect to each REO Mortgage Loan that is a successor to a Mortgage Loan secured by two or more Mortgaged Properties, the reference to “REO Property” in the preceding sentence shall be construed on a property-by-property basis to refer separately to the acquired real property that is a successor to each of such Mortgaged Properties, thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation Proceeds received in connection with a final disposition of, and Condemnation Proceeds received in connection with, each such acquired property as the Liquidation Proceeds related to that property are received. The Special Servicer shall also be entitled to additional special servicing compensation of an amount equal to the excess, if any, of the aggregate Prepayment Interest Excess relating to Specially Serviced Mortgage Loans that have, during any Collection Period, been the subject of voluntary Principal Prepayments not from Liquidation Proceeds or from modifications of Specially Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment Interest Shortfalls incurred with respect to such Specially Serviced Mortgage Loans during the same Collection Period. If the Special Servicer is terminated or resigns, the Special Servicer shall retain the right (and the applicable successor Special Servicer shall not have the right) to receive (until the related Mortgage Loan becomes a Specially Serviced Mortgage Loan or until the related Mortgaged Property becomes an REO Property) any and all Workout Fees payable in respect of (i) any Specially Serviced Mortgage Loans serviced by the Special Servicer that became Rehabilitated Mortgage Loans during the period that it acted as Special Servicer and that were still Rehabilitated Mortgage Loans at the time of such termination or resignation and (ii) any Specially Serviced Mortgage Loans for which the Special Servicer has resolved the circumstances and/or conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage Loan such that the Mortgage Loan would be deemed a Rehabilitated Mortgage Loan but for the related Mortgagor having not yet made, as of
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the date of such termination or resignation, three (3) timely Scheduled Payments required by the terms of the workout; provided that in either case no other event has occurred as of the time of the Special Servicer’s termination or resignation that would otherwise cause such Mortgage Loan to again become a Specially Serviced Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master Servicer to withdraw (i) from the Collection Account, the Special Servicer Compensation in respect of each Mortgage Loan (but not a Serviced B Note) and (ii) from any Custodial Account, the Special Servicer Compensation to the extent related solely to the related Serviced Companion Loan and/or Serviced B Note, as applicable, in each case in the time and manner set forth in Section 5.2 of this Agreement. The Special Servicer shall be required to pay all expenses incurred by it in connection with its servicing activities hereunder and shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.
(c) Notwithstanding anything herein to the contrary (and, in the case of any A/B Whole Loan, Loan Pair or Non-Serviced Loan Combination, subject to any provisions of the applicable Intercreditor Agreement relating to the allocation of the amounts set forth below), the Special Servicer shall be entitled to receive the following items as additional special servicing compensation:
(i) (x) 100% of Unallocable Modification Fees actually collected during the related Collection Period with respect to (A) any Specially Serviced Mortgage Loans or REO Mortgage Loans (other than any REO Mortgage Loan that was a Non-Serviced Mortgage Loan) or (B) any Non-Specially Serviced Mortgage Loan where the related action is a Special Servicer Decision processed solely by the Special Servicer; (y) 50% of Unallocable Modification Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Special Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to a mutual agreement between the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process)) or (z) 0% if the Master Servicer is permitted to take such action without the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(ii) After application as set forth in Section 5.2(b) hereof, (x) 100% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to (A) any Specially Serviced Mortgage Loans or REO Mortgage Loans (other than any REO Mortgage Loan that was a Non-Serviced Mortgage Loan) or (B) any Non-Specially Serviced Mortgage Loan where the related action is a Special Servicer Decision processed solely by the Special Servicer; (y) 50% of Allocable Modification Fees (that constitute Excess Modification Fees) collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Special Servicer) or is a Special Servicer
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Decision (if processed by the Master Servicer) or (z) 0% if the Master Servicer is permitted to take such action without the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(iii) (x) 100% of Assumption Fees collected during the related Collection Period with respect to (A) Specially Serviced Mortgage Loans or (B) any Non-Specially Serviced Mortgage Loan where the related action is a Special Servicer Decision processed solely by the Special Servicer, (y) 50% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that is a Major Decision (whether or not processed by the Special Servicer) or is a Special Servicer Decision (if processed by the Master Servicer) or (z) 0% if the Master Servicer is permitted to take any such action without the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(iv) 100% of assumption application fees collected during the related Collection Period with respect to Specially Serviced Mortgage Loans;
(v) (x) 100% of Consent Fees in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents on (A) Specially Serviced Mortgage Loans or (B) any Non-Specially Serviced Mortgage Loan where the related action is a Special Servicer Decision processed solely by the Special Servicer, (y) 50% of Consent Fees on Non-Specially Serviced Mortgage Loans in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent that is a Major Decision (whether or not processed by the Special Servicer) or is a Special Servicer Decision (if processed by the Master Servicer) or (z) 0% if the Master Servicer is permitted to take such action without the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement so long as no Major Decision or Special Servicer Decision is involved;
(vi) 100% of charges for beneficiary statements or demands actually paid by the Mortgagors under the Specially Serviced Mortgage Loans;
(vii) (a) 50% of other loan processing fees actually paid by the Mortgagors under the Non-Specially Serviced Mortgage Loans which action involves a Major Decision (whether or not processed by the Master Servicer) or is a Special Servicer Decision (if processed by the Master Servicer pursuant to a mutual agreement between the Master Servicer and the Special Servicer that the Master Servicer shall process such request (or with respect to clause (b)(i) and (ii) of the definition of “Special Servicer Decision”, which the Master Servicer shall process)), (b) 100% of other loan processing fees actually paid by the Mortgagors under (A) the Specially Serviced Mortgage Loans or (B) any Non-Specially Serviced Mortgage Loan where the related action is a Special Servicer Decision processed solely by the Special Servicer, or (c) 0% if the Master
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Servicer is permitted to take such action without the consent or approval (or deemed consent or deemed approval) of the Special Servicer under the other provisions of this Agreement;
(viii) Interest or other income earned during any Collection Period on deposits in any REO Account maintained by the Special Servicer, in accordance with Section 9.14 (net of investment losses with respect to such REO Account for such Collection Period); and
(ix) After application as set forth in Section 5.2(b), any Excess Penalty Charges earned on the Specially Serviced Mortgage Loans.
Notwithstanding the foregoing, regardless of whether the Master Servicer or the Special Servicer processes the request in clause (b) of the definition of Special Servicer Decisions, the Special Servicer shall only be entitled to 50% of any fee paid in connection with such Special Servicer Decision on any non-Specially Serviced Mortgage Loan.
(d) The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Borrower, any Manager, any guarantor or indemnitor in respect of a Mortgage Loan, Loan Pair or A/B Whole Loan and any purchaser of any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (or Loan Pair or A/B Whole Loan, if applicable), the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Agreement; provided, that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees.
(e) If the 261 Fifth Avenue Loan Pair becomes a Specially Serviced Mortgage Loan prior to the 261 Fifth Avenue Companion Loan Securitization Date, the Special Servicer shall service and administer the 261 Fifth Avenue Loan Pair and any related REO Property in the same manner as any other Specially Serviced Mortgage Loan or REO Property and shall be entitled to all rights and Special Servicer Compensation earned with respect to the 261 Fifth Avenue Loan Pair as special servicer of such Loan Pair. Prior to the 261 Fifth Avenue Companion Loan Securitization Date, no other special servicer shall be entitled to any such compensation or have such rights and obligations. If the 261 Fifth Avenue Loan Pair is still a Specially Serviced Mortgage Loan on the 261 Fifth Avenue Companion Loan Securitization Date, the Other Special Servicer and the Special Servicer shall be entitled to compensation with respect to the 261 Fifth Avenue Loan Pair as if the Special Servicer were being terminated as Special Servicer and the Other Special Servicer were replacing, and acting successor to, the Special Servicer.
Section 9.12 Realization Upon Defaulted Loans.
(a) The Special Servicer, in accordance with the Servicing Standard and subject to Section 9.3(a), Section 9.12(b), Section 9.12(c), Section 9.12(e), Section 9.17 and
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Section 10.3 and the terms and conditions of any related Intercreditor Agreement, shall use its reasonable efforts to foreclose upon, repossess or otherwise comparably convert the ownership of Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default and as to which no satisfactory arrangements can be made for collection of delinquent payments of such Specially Serviced Mortgage Loan, the sale of such Specially Serviced Mortgage Loan in accordance with this Agreement or the modification of such Specially Serviced Mortgage Loan in accordance with this Agreement. In connection with such foreclosure or other conversion of ownership, the Special Servicer shall follow the Servicing Standard. The foregoing is subject to the proviso that the Special Servicer shall not request that the Master Servicer make a Servicing Advance for Liquidation Expenses that would be a Nonrecoverable Advance unless the Special Servicer determines that such Servicing Advance is in the best interest of the Certificateholders (and in the case of any A/B Whole Loan, the holder of the related Serviced B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole).
(b) The Special Servicer shall not acquire any personal property relating to any Specially Serviced Mortgage Loan pursuant hereto unless:
(i) such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer;
(ii) such personal property is the capital stock of a settlor and both (A) the Special Servicer takes such action as may be necessary in order to treat the settlor as an entity that is disregarded as an entity separate from a REMIC Pool under Treasury Regulation Section 301.7701-3 (including by filing an election under such regulation and by creating a wholly-owned LLC of the REMIC for the purpose of acquiring part of such capital stock) and (B) the property owned by such settlor at the time the capital stock is acquired consists solely of “foreclosure property” under the REMIC Provisions; or
(iii) the Special Servicer shall have received a Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust) to the effect that the holding of such personal property by any REMIC Pool will not cause the imposition of a tax on any REMIC Pool under the Code or cause any REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and shall not otherwise acquire possession of, or take any other action with respect to, any Mortgaged Property, if, as a result of any such action the Trust, or any trust that holds a Serviced B Note or Serviced Companion Loan would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged Property within the meaning of CERCLA, or any applicable comparable federal, state or local law, or a “discharger” or “responsible party” thereunder, unless, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer has also previously determined in accordance with the Servicing Standard, based on a Phase I Environmental Report prepared by a Person (who may be an employee or affiliate of the Master Servicer or the Special Servicer) who regularly conducts environmental site assessments in accordance with the standards of Fannie Mae in the case of multi-family mortgage loans and
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customary servicing practices in the case of commercial loans for environmental assessments, which report shall be delivered to the Trustee, the Custodian, the Certificate Administrator and the 17g-5 Information Provider, that:
(i) such Mortgaged Property is in compliance with applicable Environmental Laws or, if not, after consultation with an environmental expert, that taking such actions as are necessary to bring the Mortgaged Property in compliance therewith is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged Property in compliance with applicable Environmental Laws is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened at such Mortgaged Property relating to the use, management, disposal or release of any hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials for which investigation, testing, monitoring, removal, clean-up or remediation could be required under any federal, state or local law or regulation, or that, if any such materials are present for which such action could be required, after consultation with an environmental expert, that taking such actions with respect to the affected Mortgaged Property is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than not taking such actions (after taking into account the projected costs of such actions);
provided that such compliance pursuant to clause (i) and (ii) above or the taking of such action pursuant to this clause (iii) shall only be required to the extent that the cost thereof is a Servicing Advance of the Master Servicer or the Special Servicer pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by Section 9.12(c) may be treated as a Liquidation Expense, or in the event the related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall treat such cost as a Servicing Advance subject to the provisions of Section 4.4 hereof; provided that, in the latter event, the Special Servicer shall use its good faith reasonable business efforts to recover such cost from the Mortgagor in connection with the curing of the default under the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c), and subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that taking such actions as are necessary to bring any Mortgaged Property into compliance with applicable Environmental Laws, or taking such actions with respect to the containment, removal, clean-up or remediation of hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials affecting any such Mortgaged Property, is not reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with
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Section 1.2(e)) than not taking such actions (after taking into account the projected costs of such actions) or than not pursuing a claim under the Environmental Insurance Policy, then the Special Servicer shall take such action as it deems to be in the best economic interest of the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair, taken as a collective whole), including, without limitation, releasing the lien of the related Mortgage, and the Special Servicer shall provide written notice of such circumstances to the Trustee, the Certificate Administrator (who shall promptly post such written notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such written notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7). In connection with the foregoing, if the Special Servicer determines that a material possibility exists that Liquidation Expenses with respect to Mortgaged Property (taking into account the cost of bringing it into compliance with applicable Environmental Laws) would exceed the Unpaid Principal Balance of the related Specially Serviced Mortgage Loan, the Special Servicer shall provide written notice of such circumstances to the Trustee, the Certificate Administrator (who shall promptly post such written notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such written notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7). The Special Servicer shall have no liability in connection with a release of lien as contemplated in this paragraph so long as it has acted in accordance with the Servicing Standard and the provisions of this paragraph.
(f) Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of maintaining any action with respect to any Specially Serviced Mortgage Loan, including, without limitation, any action to obtain a deficiency judgment with respect to any Specially Serviced Mortgage Loan.
Section 9.13 Foreclosure. If the Trust obtains, through foreclosure on a Mortgage or otherwise, the right to receive title to a Mortgaged Property (other than any Mortgaged Property relating to any Non-Serviced Mortgage Loan), the Special Servicer, as its agent, shall direct the appropriate party to deliver title to the related REO Property to the Trustee or its nominee (which may be a special purpose entity owned by the Trust).
The Special Servicer may consult with counsel to determine when an Acquisition Date shall be deemed to occur under the REMIC Provisions with respect to the Mortgaged Property, the expense of such consultation being treated as a Servicing Advance related to the foreclosure, subject to the provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair), shall sell such REO Property expeditiously, but in any event within the time period, and subject to the conditions, set forth in Section 9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve, protect and operate such REO Property for the holders of beneficial interests in the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) solely for the purpose of its prompt disposition and sale.
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In connection with causing the Trust to foreclose on collateral that consists of multiple properties held for sale to customers by the Mortgagor (such as unsold condominium units in a single project), the Special Servicer shall consider the effect of the bidding price for the properties on the tax basis of such properties if such properties are likely to be treated in the hands of the Trust as properties held for sale to customers.
Section 9.14 Operation of REO Property.
(a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holders of any related Serviced B Note or Serviced Companion Loan, as applicable, with respect to any A/B Whole Loan or Loan Pair) in the name of LNR Partners, LLC, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, the holder of any Serviced Companion Loan and the holder of any Serviced B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not
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more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related Serviced B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property;
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(v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a Serviced B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not:
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(i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
Section 9.15 Sale of REO Property.
(a) If title to any REO Property is acquired by the Trust (or its nominee) in respect of any Specially Serviced Mortgage Loan, the deed or certificate of sale shall be issued to the Trust, the Trustee or to its nominees. The Special Servicer, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, shall use its reasonable best efforts to sell any REO Property for cash as soon as practicable consistent with the objective of maximizing proceeds for all Certificateholders (and, with respect to a Loan Pair or A/B Whole Loan, for the Certificateholders and the holder of the related Serviced Companion Loan and/or Serviced B Note, as applicable, as a collective whole), but in no event later than the end of the third (3rd) calendar year following the end of the year of its acquisition, and in any event prior to the Rated Final Distribution Date or earlier to the extent necessary to comply with REMIC Provisions, unless (i) the Trustee or the Special Servicer, on behalf of the applicable REMIC Pool, (A) has been granted an extension of time (an “Extension”) (which extension shall be applied for at least sixty (60) days prior to the expiration of the period specified above) by the IRS for the orderly liquidation of such REO Property (a copy of which Extension and the related application shall be delivered to the Certificate Administrator upon request), or (B) is permitted under the REMIC Provisions to continue to hold such REO Property during the period in which
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the application for such an Extension is pending, in either of which cases the Special Servicer may continue to attempt to sell the REO Property for cash for its fair market value for such longer period as such Extension permits or while the application for such Extension is pending, as the case may be, or (ii) the Special Servicer seeks and subsequently receives, at the expense of the Trust, a Nondisqualification Opinion, addressed to the Trustee and the Special Servicer, to the effect that the holding by the Trust of such REO Property subsequent to the period specified above after its acquisition will not result in the imposition of taxes on “prohibited transactions” of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding; provided that in no event shall the Trust be permitted to hold any REO Property beyond the end of the sixth (6th) calendar year following the end of the year of such REO Property’s acquisition. If the Trustee has not received such an Extension or Opinion of Counsel and the Special Servicer is not able to sell such REO Property for cash within the period specified above, or if an Extension has been granted and the Special Servicer is unable to sell such REO Property within the extended time period, the Special Servicer shall, after consultation with the Applicable Control Party, before the end of such period or extended period, as the case may be, auction the REO Property to the highest cash bidder (which may be the Special Servicer or another Interested Person) in accordance with the Servicing Standard; provided, that if the Special Servicer, any other Interested Person or any of their respective affiliated entities intends to bid on or otherwise purchase any REO Property, (i) the Special Servicer shall notify the Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust, an Appraisal of such REO Property (or internal valuation in accordance with the procedures specified in Section 6.9) and (iii) the applicable Interested Person shall not bid less than the fair market value set forth in such Appraisal. Neither the Trustee nor any Affiliate thereof may purchase an REO Property.
(b) Within thirty (30) days of the sale of the REO Property, the Special Servicer shall provide to the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Master Servicer (and the holder of the related Serviced B Note, if any, if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan, if in connection with a Loan Pair) a statement of accounting for such REO Property, including without limitation, (i) the Acquisition Date for the REO Property, (ii) the date of disposition of the REO Property, (iii) the sale price and related selling and other expenses, (iv) accrued interest (including interest deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO Property related, calculated from the Acquisition Date to the disposition date, (v) final property operating statements, and (vi) such other information as the Trustee or the Certificate Administrator (and the holder of the related Serviced B Note, if any, if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan, if in connection with a Loan Pair) may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO Property shall be remitted to the Master Servicer for deposit into the Collection Account within one (1) Business Day of receipt; provided that, to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern) on any Business Day, the Special Servicer shall use commercially reasonable efforts to remit such amounts to the Master Servicer within one (1) Business Day of receipt but in any event with two (2) Business Days of receipt.
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(d) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
Section 9.16 Realization on Collateral Security. In connection with the enforcement of the rights of the Trust to any property securing any Specially Serviced Mortgage Loan other than the related Mortgaged Property, the Special Servicer shall consult with counsel to determine how best to enforce such rights in a manner consistent with the REMIC Provisions and shall not, based on a Nondisqualification Opinion addressed to the Special Servicer and the Trustee (the cost of which shall be an expense of the Trust) take any action that could result in the failure of any REMIC Pool to qualify as a REMIC while any Certificates are outstanding or could result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code or on contributions pursuant to Section 860G(d)), unless such action has been approved by a vote of 100% of the Certificateholders (including the Class R Certificateholders).
Section 9.17 Sale of Defaulted Loans.
(a) Promptly upon a Mortgage Loan becoming a Defaulted Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Loan on behalf of the Certificateholders and any related Serviced B Note holder or Serviced Companion Loan holder in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Loan.
(b) The Special Servicer shall give the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related Serviced B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Loan pursuant hereto.
(c) Whether any cash offer constitutes a fair price for any Defaulted Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent
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third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Loan, the Special Servicer shall require that all offers be submitted to the Trustee in writing. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing mortgage loans similar to the subject Defaulted Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Defaulted Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to the other subsections of this Section 9.17, the Special Servicer shall act on behalf of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Loan shall be for cash. Any sale of any Defaulted Loan shall be final and without recourse to the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Custodian, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
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(e) Subject to the rights of a holder of any related Serviced B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Defaulted Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Defaulted Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
(i) In the case of a Defaulted Loan that is part of a Loan Pair, if the Special Servicer determines to attempt to sell such Mortgage Loan it shall sell such Defaulted Loan together with the related Serviced Companion Loan as a whole loan pursuant to this Agreement and the terms of the related Intercreditor Agreement.
With respect to any such Defaulted Loan, the Special Servicer shall solicit offers for such Defaulted Loan together with the related Serviced Companion Loan as a whole loan and shall require that all offers be submitted to the Trustee in writing. Whether any cash offer
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constitutes a fair price for any such Loan Pair for purposes of this Section 9.17 shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person (as defined in the related Intercreditor Agreement) for a Loan Pair shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for any such Loan Pair, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. In determining whether any such offer from a Person constitutes a fair price for any such Loan Pair, the Trustee shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), as applicable, among other factors, the period and amount of any delinquency on the affected Loan Pair, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters selected with reasonable care and retained by the Trustee at the expense of the Trust and the holder of the related Serviced Companion Loan in connection with making such determination. Notwithstanding the foregoing, the Special Servicer shall not be permitted to sell the Loan Pair without the written consent of the related Serviced Companion Loan holder unless the Special Servicer has delivered to such holder: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell the Loan Pair; (b) at least ten (10) days prior to the proposed sale, a copy of each offer package (together with any amendments to such offer packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale, a copy of the most recent Appraisal for the Loan Pair, and any documents in the Servicer Mortgage File requested by such holder and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided, that such holder may waive any of the delivery or timing requirements set forth in this sentence. Subject to the foregoing, each of the Controlling Class Representative, the Serviced Companion Loan holder or a representative thereof shall be permitted to submit an offer at any sale of a Loan Pair.
Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject mortgage loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such mortgage loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph shall be covered by, and shall
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be reimbursable from, the Collection Account, to the extent of the pro rata portion allocable to the related Mortgage Loan, and the related Custodial Account, to the extent of the applicable portion allocable to the related Serviced Companion Loan in accordance with the related Intercreditor Agreement; provided, that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(j) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related Serviced B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related Serviced B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related Serviced B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Section 9.18 A/B Whole Loans. The parties acknowledge that, the Special Servicer shall not be entitled or required to exercise the rights and powers granted to any “Note B Holder” as defined under the related Intercreditor Agreement. Subject to Section 10.3, when (i) any A Note or Serviced B Note under any A/B Whole Loan, (ii) any Serviced Pari Passu Mortgage Loan or Serviced Companion Loan under any Loan Pair, or (iii) any Mortgage Loan with any related mezzanine loan, as applicable, constitutes a Specially Serviced Mortgage Loan, the Special Servicer shall be entitled to exercise the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement that the Master Servicer would be entitled to exercise under Section 8.3(j) hereof with respect to the related A Note, Serviced Pari Passu Mortgage Loan or Mortgage Loan, as applicable.
Section 9.19 Reserved.
Section 9.20 Merger or Consolidation. Any Person into which the Special Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Special Servicer shall be a party, or any Person succeeding to the business of the Special Servicer, shall be the successor of the Special Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, that the Special Servicer shall have provided a Rating Agency Communication to each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note; provided, further, that the successor or surviving Person meets the requirements set forth in Section 9.30(g) for a successor Special Servicer and if, and for so long as, the Trust, or with respect to any Serviced Companion Loan the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Depositor or the depositor under such Other Companion Loan Pooling and Servicing Agreement, as the case may be, shall have consented thereto (which consent shall not be unreasonably delayed or withheld). If the conditions to the proviso in the
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foregoing sentence are not met, the Trustee may terminate the Special Servicer’s servicing of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 9.31. The successor or surviving Person shall provide prompt notice of the merger or consolidation to the other parties hereto and the 17g-5 Information Provider. If the Special Servicer enters into a merger and the Special Servicer is the surviving entity under applicable law, the Special Servicer shall not, as a result of the merger, be required to provide a Rating Agency Communication, meet the requirements of Section 9.30(g), or obtain the consent of the Depositor or any depositor under an Other Companion Loan Pooling and Servicing Agreement.
Section 9.21 Resignation of Special Servicer.
(a) Except as otherwise provided in this Section 9.21, the Special Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Special Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Special Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trustee. In connection with any such resignation, the successor special servicer shall either: (i) during any Subordinate Control Period, be appointed by the Controlling Class Representative in accordance with the first (1st) paragraph of Section 9.30(c); or (ii) during any Collective Consultation Period or any Senior Consultation Period, be appointed by the Trustee and, during any Collective Consultation Period, be reasonably acceptable to the Controlling Class Representative, and otherwise satisfy the requirements for a successor Special Servicer set forth in Section 9.30(g); provided that in either case the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication with respect to the replacement of the existing Special Servicer with the proposed successor. Notice of such resignation shall be given promptly by the Special Servicer to the other parties to this Agreement. The Special Servicer shall bear all costs associated with its resignation and the transfer of servicing under this Section 9.21(a). Notwithstanding the foregoing, if the Special Servicer shall cease to serve as such in accordance with this Section 9.21(a) and a successor servicer shall not have been engaged (or, if applicable in the case of an A/B Whole Loan or Loan Pair, shall not have been appointed by a related Loan-Specific Directing Holder and engaged or, otherwise during any Subordinate Control Period, shall not have been appointed by the Controlling Class Representative and engaged), the Trustee or an agent of the Trustee shall assume the duties and obligations of the Special Servicer under this Agreement. If the Trustee or an agent of the Trustee assumes the duties and obligations of the Special Servicer pursuant to this Section 9.21(a), the Trustee or such agent shall be permitted to resign as special servicer if it has been replaced by a successor servicer satisfying the criteria in the fourth (4th) preceding sentence above.
(b) The Special Servicer may resign from the obligations and duties hereby imposed on it, upon thirty (30) days’ notice to the Depositor, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator; provided that (i) a successor special servicer (A) is available, (B) during any Subordinate Control Period, is acceptable to or has been appointed by
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the Controlling Class Representative, (C) during any Collective Consultation Period, is reasonably acceptable to the Controlling Class Representative, the Depositor, and the Trustee, (D) during any Senior Consultation Period, is reasonably acceptable to the Depositor and the Trustee, (E) is willing to assume the obligations, responsibilities and covenants to be performed hereunder by the Special Servicer on substantially the same terms and conditions, and for not more than equivalent compensation as that herein provided (unless a successor cannot be found for existing compensation), and (F) otherwise satisfies the requirements for a successor Special Servicer set forth in Section 9.30(g), (ii) the successor special servicer has a net worth of at least $15,000,000, (iii)(A)(x) such successor special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by KBRA and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither KBRA nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal or placement on watch or (y) if such successor special servicer is not acting as special servicer in a commercial mortgage loan securitization that was rated by KBRA and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; (B) such successor special servicer has a special servicer rating of at least “CSS3” from Fitch; and (C) Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of certificates issued in connection with such securitization citing servicing concerns with such successor special servicer as the sole or material factor in such rating action; and (iv) the resigning Special Servicer shall have provided each Rating Agency with a Rating Agency Communication with respect to such servicing transfer. Any costs of such resignation and of obtaining a replacement Special Servicer and of transfer of servicing shall be borne by the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (a) or (b) above shall become effective unless and until such successor Special Servicer enters into an agreement with the other parties hereto assuming the obligations and responsibilities of the Special Servicer hereunder in form and substance reasonably satisfactory to the Trustee.
(d) If the Special Servicer resigns under this Section 9.21, it shall continue to have rights to any and all compensation, indemnification, reimbursement of Advances and any other amounts due to the Special Servicer hereunder which were earned, accrued or expended prior to termination.
Section 9.22 Assignment or Delegation of Duties by Special Servicer. The Special Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in Section 9.3) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Special Servicer hereunder or (B) assign and delegate all of its duties hereunder. In the case of any such assignment and delegation in accordance with the requirements of clause (A) of this Section, the Special Servicer shall not be released from its obligations under this Agreement. In the case of any such assignment and
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delegation in accordance with the requirements of clause (B) of this Section, the Special Servicer shall be released from its obligations under this Agreement, except that the Special Servicer shall remain liable for all liabilities and obligations incurred by it as the Special Servicer hereunder prior to the satisfaction of the following conditions: (i) the Special Servicer gives the Depositor, the Master Servicer, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the other parties hereto an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Special Servicer, with like effect as if originally named as a party to this Agreement; (iii) the purchaser or transferee has a net worth in excess of $15,000,000 and otherwise satisfies the requirements for a successor Special Servicer set forth in Section 9.30(g); (iv) the Special Servicer shall have provided to each Rating Agency a Rating Agency Communication with respect to such assignment and delegation; (v) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative consents to such assignment and delegation, such consent not to be unreasonably withheld during any Collective Consultation Period; (vi) the Depositor consents to such assignment and delegation, such consent not to be unreasonably withheld and (vii)(A)(x) the successor special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by KBRA and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither KBRA nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, as applicable, as the sole or material reason for such downgrade or withdrawal (or placement on watch) or (y) if such successor special servicer is not acting as special servicer in a commercial mortgage loan securitization that was rated by KBRA and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; (B) the successor special servicer has a special servicer rating of at least “CSS3” from Fitch; and (C) Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of certificates citing servicing concerns with such successor special servicer as the sole or material factor in such rating action. Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in accordance with Section 9.4 hereof.
Section 9.23 Limitation on Liability of the Special Servicer and Others.
(a) Neither the Special Servicer nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Special Servicer shall be under any liability to the Certificateholders, any other party to this Agreement, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan for any action taken or for refraining from the taking of any action in good faith and using reasonable business judgment; provided that this provision shall not protect the Special Servicer or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Special Servicer and any Affiliate, director, officer,
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employee, member, manager or agent of the Special Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the information and reports delivered by or at the direction of the Master Servicer or any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer) respecting any matters arising hereunder. Except as specifically provided in Section 9.34, the Special Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Specially Serviced Mortgage Loans in accordance with this Agreement; provided that the Special Servicer may in its sole discretion undertake any such action which it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders, the holder of any Serviced B Note, the holder of any Serviced Companion Loan and the Trustee in the Specially Serviced Mortgage Loans, or shall undertake any such action if instructed to do so by the Trustee. In such event, all legal expenses and costs of such action (other than those that are connected with the routine performance by the Special Servicer of its duties hereunder) shall be expenses and costs of the Trust, and the Special Servicer shall be entitled to be reimbursed therefor as a Servicing Advance, together with interest thereon, as provided by Section 5.2 hereof.
(b) In addition, the Special Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Special Servicer and conforming to the requirements of this Agreement, including by the Master Servicer. Neither the Special Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Special Servicer or such officer was negligent in ascertaining the pertinent facts. Neither the Special Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement. The Special Servicer shall be entitled to rely on reports and information supplied to it by the Master Servicer and the related Mortgagors and shall have no duty to investigate or confirm the accuracy of any such report or information unless otherwise required hereunder. The Special Servicer shall have no liability for the inaccuracy of any of its reports due to the inaccuracy of the information provided by the Master Servicer and shall have no obligation to investigate or confirm the accuracy of any information provided to it by the Master Servicer.
(c) The Special Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Special Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or
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any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Special Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed or in good faith believed by it to be genuine.
(e) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer shall be indemnified by the Master Servicer, the Trustee, the Certificate Administrator and the Custodian, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Master Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard by such Person of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Special Servicer’s duties hereunder or by reason of negligent disregard of the Special Servicer’s obligations and duties hereunder. The Special Servicer shall promptly notify the Master Servicer, the Trustee, the Certificate Administrator and the Custodian, if a claim is made by a third party entitling the Special Servicer to indemnification hereunder, whereupon, subject to Section 9.34, the Master Servicer, the Trustee, the Certificate Administrator or the Custodian, in each case, to the extent the claim was made in connection with its willful misfeasance, bad faith or negligence, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Special Servicer). Any failure to so notify the Master Servicer, the Trustee, the Certificate Administrator or the Custodian shall not affect any rights the Special Servicer may have to indemnification hereunder or otherwise, unless the interest of the Master Servicer, the Trustee, the Certificate Administrator or the Custodian is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination, removal or resignation of the Special Servicer. Any payment hereunder made by the Master Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be, pursuant to this paragraph to or at the direction of the Special Servicer shall be paid from the Master Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, own funds, without reimbursement from the Trust therefor, except achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian or the Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Certificate Administrator, the Custodian or the Master Servicer, as the case may be, was not culpable or
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such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 9.24 Indemnification; Third-Party Claims.
(a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any Serviced B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any Serviced B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative, any Loan-Specific Directing Holder or the Master Servicer pursuant to any provision of this Agreement or the applicable Intercreditor Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties.
Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any Serviced B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
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(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole.
Subject to Section 9.34, the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any Serviced B Note, as set forth above, out of the related Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify each other party to this Agreement, the Trust, and any director, officer, member, manager, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust
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Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 9.25 Reserved.
Section 9.26 Special Servicer May Own Certificates. The Special Servicer or any agent of the Special Servicer in its individual capacity or in any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if they were not the Special Servicer or such agent. Any such interest of the Special Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Special Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Special Servicer.
Section 9.27 Tax Reporting. The Special Servicer shall provide the necessary information to the Master Servicer to allow the Master Servicer to comply with the Mortgagor tax reporting requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan and any REO Property. The Special Servicer shall provide to the Master Servicer copies of any such reports. The Master Servicer shall forward such reports to the Certificate Administrator.
Section 9.28 Application of Funds Received. It is anticipated that the Master Servicer will be collecting all payments with respect to the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (other than payments with respect to REO Income). If, however, the Special Servicer should receive any payments with respect to any Mortgage
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Loan (other than REO Income) it shall, within one (1) Business Day of receipt from the Mortgagor or otherwise of any amounts attributable to payments with respect to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any (but not including REO Income, which shall be deposited in the applicable REO Account as provided in Section 9.14 hereof) remit such payment or other amounts (endorsed, if applicable, to the order of the Master Servicer), to the Master Servicer for deposit into the Collection Account. The Special Servicer shall notify the Master Servicer of each such amount received on or before the date required for the making of such deposit or transfer, as the case may be, indicating the Mortgage Loan or the Specially Serviced Mortgage Loan to which the amount is to be applied and the type of payment made by or on behalf of the related Mortgagor.
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions. The Special Servicer shall act in accordance with this Agreement and the REMIC Provisions and related provisions of the Code in order to create or maintain the status of any REMIC Pool as a REMIC and the Grantor Trust created hereby as a grantor trust or, as appropriate, adopt a plan of complete liquidation. The Special Servicer shall not (A) take any action or cause any REMIC Pool to take any action that could (i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii) subject to Section 9.14(e), result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on contributions pursuant to Section 860G(d)) or (B) take any action or cause the Grantor Trust to take any action that could (i) endanger its status as a grantor trust, an “investment trust” under Treasury Regulations Section 301.7701-4(c), or a “domestic trust” under Treasury Regulations Section 301.7701-7 or (ii) result in the imposition of any tax upon the Grantor Trust unless the Master Servicer and the Certificate Administrator have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such tax. The Special Servicer shall comply with the provisions of Article XII hereof. Notwithstanding the foregoing, the Special Servicer shall not be liable for an Adverse REMIC Event resulting from the failure of any Mortgage Loan by its terms to comply with Revenue Procedure 2010-30 or other REMIC Provisions.
Section 9.30 Termination.
(a) The obligations and responsibilities of the Special Servicer created hereby (other than the obligation of the Special Servicer to make payments to the Master Servicer as set forth in Section 9.28 and the obligations of the Special Servicer pursuant to Sections 9.3, 9.8 and 9.24 hereof) shall terminate on the date which is the earliest of (i) the later of (A) the final payment or other liquidation of the last of the Mortgage Loans remaining outstanding (and final distribution to the Certificateholders) or, (B) the disposition of all REO Property in respect of any Specially Serviced Mortgage Loan (and final distribution to the Certificateholders), (ii) thirty (30) days following the date on which the Trustee or the Controlling Class Representative has given written notice to the Special Servicer that the Special Servicer is terminated pursuant to Section 9.30(b) or 9.30(c), respectively and (iii) the effective date of any resignation of the Special Servicer effected pursuant to and in accordance with Section 9.21.
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(b) The Trustee may (and, if holders of Certificates representing more than 25% of the aggregate Voting Rights of all Certificates so direct the Trustee, shall) terminate the Special Servicer if any of the following have occurred and are continuing or have not been cured:
(i) the Special Servicer has failed to remit any amount required to be remitted to the Master Servicer within one (1) Business Day following the date such amount was required to have been remitted under the terms of this Agreement;
(ii) the Special Servicer has failed to deposit into any account any amount required to be so deposited or remitted under the terms of this Agreement which failure continues unremedied for one (1) Business Day following the date on which such deposit or remittance was first required to be made;
(iii) the Special Servicer has failed to duly observe or perform in any material respect any of the other covenants or agreements of the Special Servicer set forth in this Agreement (other than if and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the duties, covenants or agreements set forth in Article XIII to the extent described in Section 9.30(b)(ix)), and the Special Servicer has failed to remedy such failure within thirty (30) days after written notice of such failure, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee; provided such cure period may be extended to the extent necessary to permit the Special Servicer to cure such failure if (A) the Special Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, and (B) the Certificateholders would not be materially and adversely affected thereby; provided, that such cure period may not exceed ninety (90) days;
(iv) the Special Servicer has made one or more false or misleading representations or warranties herein that materially and adversely affects the interest of any Class of Certificates, and has failed to cure such breach within thirty (30) days after notice of such breach, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee, provided such cure period may be extended to the extent necessary to permit the Special Servicer to cure such failure if (A) the Special Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, and (B) the Certificateholders shall not be materially and adversely affected thereby; provided that such cure period may not exceed ninety (90) days;
(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Special Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
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(vi) the Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings relating to the Special Servicer or of or relating to all or substantially all of its property;
(vii) the Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing;
(viii) (a) KBRA or Moody’s has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if such Rating Agency has been engaged by the applicable Other Depositor to rate such securities) or (B) placed one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if such Rating Agency has been engaged by the applicable Other Depositor to rate such securities) on “watch status” in contemplation of a ratings downgrade or withdrawal (and, in the case of either of clauses (A) or (B), such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by KBRA or Moody’s, as applicable, within sixty (60) days) and, in the case of either of clauses (A) or (B), publicly cited servicing concerns with the Special Servicer as the sole or material factor in such rating action or (b)(A) the Special Servicer has failed to maintain a ranking by Morningstar equal to or higher than “MOR CS3” as a special servicer and such ranking is not reinstated within sixty (60) days of actual knowledge of such event by the Special Servicer (if the Special Servicer has or had a Morningstar ranking on or after the Closing Date) or (B) if the Special Servicer has not been ranked by Morningstar on or after the Closing Date, Morningstar has (1) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if Morningstar has been engaged by the applicable Other Depositor to rate such securities) or (2) within the prior twelve (12) months, placed one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan (if Morningstar has been engaged by the applicable Other Depositor to rate such securities) on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (A) or (B), has publicly cited servicing concerns with the Special Servicer as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by Morningstar within sixty (60) days of such event);
(ix) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Special Servicer, or any Servicing Function Participant appointed by the Special Servicer, shall fail to comply with any of its obligations under Article XIII of this Agreement; or
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(x) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Special Servicer shall fail to terminate, on the same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer of the Master Servicer, any Sub-Servicer appointed by the Special Servicer.
Such termination shall be effective on the date that the Trustee specifies in a written notice to the Special Servicer that the Special Servicer is terminated due to the occurrence of one of the foregoing events and the expiration of any applicable cure period or grace period specified above for such event. During any Subordinate Control Period, the Controlling Class Representative shall have the right to appoint a successor Special Servicer if the Trustee terminates the existing Special Servicer.
With respect to any Loan Pair, if any event described clauses 9.30(b)(i)-(x) has occurred that affects the holder of the related Serviced Companion Loan, such holder shall have the right to direct the Trustee to terminate the Special Servicer under this Agreement solely with respect to such Loan Pair.
Any event described in clauses (i) through (viii) of the first (1st) sentence of the first paragraph of this subsection (b) may be waived by the Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of the Certificates (except a default in making any required deposits to or payments from the Collection Account or the Distribution Account or in remitting payments as received, in each case in accordance with this Agreement).
During any Subordinate Control Period, the Controlling Class Representative, if any, shall have the right to terminate the Special Servicer (x) for cause at any time and (y) without cause if (A) LNR Partners, LLC or its affiliate is no longer the Special Servicer or (B) LNR Securities Holdings, LLC or its affiliate owns less than 15% of the then Controlling Class of Certificates, and in the case of either clause (x) or (y), the Controlling Class Representative shall have the right to, and shall, appoint a successor Special Servicer meeting the requirements of Section 9.30(g), who shall execute and deliver to the other parties hereto an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; provided that the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication prior to the termination of the Special Servicer; provided, further, that the Excluded Special Servicer shall not be subject to termination pursuant to this Section 9.30(c). The Special Servicer shall not be terminated pursuant to this paragraph until a successor Special Servicer shall have been appointed. The Controlling Class Representative shall pay any costs and expenses incurred by the Trust in connection with the removal and appointment of a Special Servicer pursuant to this paragraph (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)). Notwithstanding anything to the contrary in this Agreement, no successor Special Servicer appointed by the Controlling Class Representative pursuant to Section 9.21(a), Section 9.30(b) or this Section 9.30(c) will be required to meet any net worth requirements. For the avoidance of doubt, as regards the replacement of the Special Servicer for the WPC Department Store Portfolio Mortgage Loan Pair without cause by the
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controlling note holder under the WPC Department Store Portfolio Intercreditor Agreement, the Trust, as the holder of such controlling note (and any Controlling Class Representative acting on behalf of the Trust in such capacity pursuant to this Agreement), is hereby subject in such capacity to the same restrictions relating to LNR Partners, LLC and LNR Securities Holdings, LLC (as set forth in this paragraph) that apply to the replacement by the Controlling Class Representative without cause of the Special Servicer for a Mortgage Loan serviced entirely under this Agreement.
During any Collective Consultation Period and any Senior Consultation Period, upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the aggregate Voting Rights of the Certificates requesting a vote to terminate and replace the Special Servicer with a proposed successor Special Servicer meeting the requirements of Section 9.30(g), (ii) payment by such Holders to the Certificate Administrator and/or the Trustee of the reasonable fees and expenses to be incurred by the Certificate Administrator and/or the Trustee in connection with administering such vote and (iii) delivery by, and at the expense of, such Holders to each Rating Agency (with a copy to the Certificate Administrator and the Trustee) of a Rating Agency Communication with respect to the termination of the existing Special Servicer and the replacement thereof with the proposed successor, the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders by posting such notice on its internet website and by mailing such notice to their addresses appearing in the Certificate Register. Upon the written direction of Holders of Certificates evidencing at least 75% of the aggregate Voting Rights of the Certificates, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement, and the proposed successor Special Servicer shall succeed to the duties of the Special Servicer all as if a removal and replacement were occurring pursuant to Section 9.30(b) and Section 9.31; provided that if such written direction is not provided within one hundred and eighty (180) days of the initial request for a vote to terminate and replace the Special Servicer, then such written direction shall have no force and effect. The provisions set forth in the foregoing sentences of this paragraph shall be binding upon and inure to the benefit of solely the Certificateholders and the Trustee as between each other. The Special Servicer shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions. As between the Special Servicer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Special Servicer. The Holders of the Certificates that initiated the vote to replace the Special Servicer shall pay the costs and expenses incurred in connection with the removal and replacement of the Special Servicer pursuant to this paragraph.
In addition, during any Senior Consultation Period, if the Trust Advisor determines that the Special Servicer is not performing its duties in accordance with the Servicing Standard, the Trust Advisor may recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and Certificate Administrator, with a copy to the Special Servicer, a written recommendation (along with the relevant information justifying its recommendation) of a suggested replacement special servicer. The Certificate Administrator shall notify each Certificateholder of the recommendation and post it on the Certificate Administrator’s Website. The replacement of the Special Servicer based on the Trust Advisor’s recommendation must be confirmed by an affirmative vote of the Holders of Principal Balance Certificates evidencing greater than 50% of the aggregate Voting Rights of all Principal Balance
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Certificates on an aggregate basis; provided that if a proposed termination and replacement of the Special Servicer following the initial recommendation of the Trust Advisor is not consummated within one hundred and eighty (180) days following the initial recommendation of the Trust Advisor, then the proposed termination and replacement shall have no further force and effect. If the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Trustee shall provide to each Rating Agency a Rating Agency Communication at that time. If the successor special servicer agrees to be bound by the terms of this Agreement, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor special servicer approved by the Certificateholders, provided such successor special servicer satisfies the requirements of Section 9.30(g), subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The reasonable costs and expenses associated with the Trust Advisor’s identification of a replacement special servicer, providing the Rating Agency Communications and administering the vote of the applicable Principal Balance Certificates will be an Additional Trust Expense. In any case, the Trustee shall notify the outgoing Special Servicer promptly of the effective date of its termination.
(c) Notwithstanding any of the foregoing to the contrary, the holder of a Serviced Companion Loan or Serviced B Note or its designee, to the extent set forth in the related Intercreditor Agreement and only for so long as it is the related Loan-Specific Directing Holder, shall have the sole right to terminate the Special Servicer with respect to the related Loan Pair or A/B Whole Loan, as applicable, upon the appointment and acceptance of such appointment by a successor to the Special Servicer; provided that, if such holder of the related Serviced Companion Loan or Serviced B Note or its designee so terminates the Special Servicer, such holder of that Serviced Companion Loan or Serviced B Note or its designee shall appoint a successor Special Servicer who will (i) in the case of the related Loan Pair or A/B Whole Loan, be reasonably satisfactory to the Trustee and to the Depositor; and (ii) execute and deliver to the Trustee an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; and provided, further, that the Trustee shall provide to each Rating Agency a Rating Agency Communication prior to the termination of the Special Servicer. The Special Servicer shall not be terminated pursuant to this Section 9.30(d) until a successor Special Servicer shall have been appointed. The holder of the applicable Serviced Companion Loan or Serviced B Note or its designee shall pay any costs and expenses incurred by the Trust in connection with the removal and appointment of a Special Servicer pursuant to this paragraph (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)). If the holder of a Serviced Companion Loan or Serviced B Note or its designee terminates the Special Servicer with respect to the related Loan Pair or A/B Whole Loan, as applicable, and appoints a successor special servicer with respect to such Loan Pair or A/B Whole Loan, as applicable, then the Controlling Class Representative (or the Holders of the applicable percentage of Certificates) shall not have the right to terminate any such successor special servicer without cause until the holder of the related Serviced Companion Loan or Serviced B Note or its designee is no longer the Loan-Specific Directing Holder with respect to such Loan Pair or A/B Whole Loan, as applicable.
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(d) Notwithstanding anything to the contrary contained in this Section 9.30, with respect to any Excluded Special Servicer Mortgage Loan the Special Servicer shall resign with respect to such Excluded Special Servicer Mortgage Loan. During any Subordinate Control Period, if the Excluded Special Servicer Mortgage Loan is not also an Excluded Mortgage Loan, the Controlling Class Representative shall appoint (and replace with or without cause) the Excluded Special Servicer, as successor to the resigning Special Servicer, for the related Excluded Special Servicer Mortgage Loan in accordance with this Agreement. If such Excluded Special Servicer Mortgage Loan is also an Excluded Mortgage Loan, the largest Controlling Class Certificateholder (by Certificate Balance) that is not an Excluded Controlling Class Holder shall appoint (and replace with or without cause) the Excluded Special Servicer for the related Excluded Special Servicer Mortgage in accordance with this Agreement. During any Collective Consultation Period, the largest Controlling Class Certificateholder that is not an Excluded Controlling Class Certificateholder shall have the right to appoint the Excluded Special Servicer. During any Collective Consultation Period or Senior Consultation Period, neither the Controlling Class Representative nor any other Controlling Class Certificateholder shall be entitled to remove or replace the Excluded Special Servicer with respect to any Excluded Special Servicer Mortgage Loan.
During any Senior Consultation Period, upon a Responsible Officer of the Certificate Administrator receiving notice or obtaining actual knowledge of the resignation of the Special Servicer with respect to an Excluded Special Servicer Mortgage Loan, at the expense of the Trust, the Certificate Administrator shall promptly provide written notice of such resignation to all Certificateholders by posting such notice on the Certificate Administrator’s Website and the Excluded Special Servicer shall be appointed upon the written direction of more than 50% of the Voting Rights of the Certificates that exercise their right to vote (provided that holders of at least 20% of the Voting Rights of the Certificates exercise their right to vote). If such Excluded Special Servicer has not been appointed pursuant to the preceding sentence within thirty (30) days after the Special Servicer has provided its written notice of resignation, the Certificate Administrator shall provide written notice to the resigning Special Servicer that such Excluded Special Servicer has not been appointed and such resigning Special Servicer shall appoint such Excluded Special Servicer.
If at any time the Special Servicer that had acted as the Special Servicer for an Excluded Special Servicer Mortgage Loan prior to it becoming a Excluded Special Servicer Mortgage Loan is no longer a Borrower Party (including, without limitation, as a result of the related Mortgaged Property becoming REO Property) with respect to an Excluded Special Servicer Mortgage Loan, (1) the related Excluded Special Servicer shall resign, (2) the related Mortgage Loan shall no longer be an Excluded Special Servicer Mortgage Loan, (3) such Special Servicer shall become the Special Servicer again for such related Mortgage Loan and (4) such original Special Servicer shall be entitled to all special servicing compensation with respect to such Mortgage Loan earned during such time on and after such Mortgage Loan is no longer an Excluded Special Servicer Mortgage Loan.
The Excluded Special Servicer shall perform all of the obligations of the Special Servicer for the related Excluded Special Servicer Mortgage Loan and will be entitled to all special servicing compensation with respect to such Excluded Special Servicer Mortgage Loan
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earned during such time as the related Mortgage Loan is an Excluded Special Servicer Mortgage Loan.
If a Servicing Officer or Special Servicing Officer, as applicable, of the Master Servicer, a related Excluded Special Servicer, or the Special Servicer, as applicable, has actual knowledge that a Mortgage Loan is no longer an Excluded Mortgage Loan, an Excluded Controlling Class Mortgage Loan or an Excluded Special Servicer Mortgage Loan, as applicable, the Master Servicer, the related Excluded Special Servicer or Special Servicer, as applicable, shall provide prompt written notice thereof to each of the other parties to this Agreement.
(e) [Reserved].
(f) If a separate special servicer is appointed or remains in place with respect to a Loan Pair or an A/B Whole Loan at the request of the Loan-Specific Directing Holder of such Loan Pair or A/B Whole Loan, at the request of a Serviced Companion Loan holder or in respect of any Excluded Special Servicer Mortgage Loan, as applicable, in accordance with Section 9.30(b), Section 9.30(c), Section 9.30(d) or otherwise (any such separate special servicer for a Loan Pair, A/B Whole Loan or Excluded Special Servicer Mortgage Loan, a “Loan-Specific Special Servicer”), such that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer hereunder or the performance of such duties and obligations, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer, insofar as such duties and obligations relate to a Loan Pair, A/B Whole Loan or Excluded Special Servicer Mortgage Loan, as applicable, as to which a Loan-Specific Special Servicer has been appointed or otherwise relates, and shall mean the Special Servicer, in all other cases; (ii) when used in the context of identifying the recipient of any information, funds, documents, instruments and/or other items, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer, insofar as such information, funds, documents, instruments and/or other items relate to a Loan Pair, A/B Whole Loan or Excluded Special Servicer Mortgage Loan, as applicable, as to which a Loan-Specific Special Servicer has been appointed or otherwise relates, and shall mean the Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase all of the Mortgage Loans and any REO Properties remaining in the Trust pursuant to Section 11.1(b), the term “Special Servicer” shall mean the Special Servicer only; (iv) when used in the context of granting the Special Servicer any protections, limitations on liability, immunities and/or indemnities hereunder, the term “Special Servicer” shall mean each Loan-Specific Special Servicer and the Special Servicer; and (v) when used in the context of requiring indemnification from, imposing liability on, or exercising any remedies against, the Special Servicer for any breach of a representation or warranty hereunder or for any negligence, bad faith or willful misconduct in the performance of duties and obligations hereunder or any negligent disregard of such duties and obligations or otherwise holding the Special Servicer responsible for any of the foregoing, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer or the Special Servicer, as applicable. References in this Section 9.30(f) to “Special Servicer” mean the Person performing the duties and obligations of Special Servicer with respect to the Mortgage Loans (exclusive of each and every A/B Whole Loan and Loan Pair as to which a Loan-Specific Special Servicer has been appointed and exclusive of the Excluded Special Servicer Mortgage Loans).
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(g) In no event may a successor Special Servicer be a current or former Trust Advisor or any Affiliate of such current or former Trust Advisor. Further, such successor must be a Person that satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement (other than any net worth requirement during any Subordinate Control Period when the Controlling Class Representative is appointing the successor Special Servicer in accordance with Section 9.21(a), Section 9.30(b) or Section 9.30(c)) and, if applicable, any Intercreditor Agreement; provided, that no Rating Agency Confirmation shall be required in connection with the appointment of any Special Servicer other than pursuant to Section 9.21(b) of this Agreement. The Special Servicer, any successor Special Servicer and any of their respective Affiliates shall not (i) pay, or become obligated, whether by agreement or otherwise, and whether or not subject to any condition or contingency, to pay the Trust Advisor or any Affiliate thereof any fee, or otherwise compensate or grant monetary or other consideration to the Trust Advisor or any Affiliate thereof (x) in connection with its obligations under this Agreement or the performance thereof or (y) in connection with the appointment of such Person as, or any recommendation by the Trust Advisor for such Person to become, the successor Special Servicer, (ii) become entitled to receive any compensation from the Trust Advisor (x) in connection with its obligations under this Agreement or the performance thereof or (y) in connection with the appointment of such Person as, or any recommendation by the Trust Advisor for such Person to become, the successor Special Servicer or (iii) become entitled to receive any fee from the Trust Advisor or any Affiliate thereof in connection with the appointment of such Person as Special Servicer, unless, in each of the foregoing clauses (i) through (iii), such transaction has been expressly approved by 100% of the Certificateholders.
(h) If the Special Servicer is terminated under this Agreement, it shall continue to have any indemnification rights that survive termination and any rights to any and all compensation, reimbursement of Advances and any other amounts due to the Special Servicer hereunder which were earned, accrued or expended prior to termination.
Section 9.31 Procedure Upon Termination.
(a) Notice of any termination pursuant to clause (i) of Section 9.30(a), specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Special Servicer to the Trustee and the Certificate Administrator no later than the later of (i) five (5) Business Days after the final payment or other liquidation of the last Mortgage Loan or (ii) the sixth (6th) day of the month in which the final Distribution Date will occur. Upon any such termination, the rights and duties of the Special Servicer (other than the rights and duties of the Special Servicer pursuant to Sections 9.8, 9.11 (with respect to any outstanding fees earned prior to such termination), 9.21, 9.23, 9.24 and 9.28 hereof) shall terminate and the Special Servicer shall transfer to the Master Servicer the amounts remaining in each REO Account and shall thereafter terminate each REO Account and any other account or fund maintained with respect to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority, power and rights of the Special Servicer under this Agreement, whether with respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate, subject to the Special Servicer’s right to receive compensation and indemnification as expressly provided herein, as well as the benefit of any
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other rights that survive termination hereunder; provided, that in no event shall the termination of the Special Servicer be effective until the Trustee or other successor Special Servicer shall have succeeded the Special Servicer as successor Special Servicer, notified the Special Servicer of such designation, and such successor Special Servicer shall have assumed the Special Servicer’s obligations and responsibilities, as set forth in an agreement substantially in the form hereof, with respect to the Specially Serviced Mortgage Loans. The Trustee or other successor Special Servicer may not succeed the Special Servicer as Special Servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Special Servicer pursuant to Section 9.20 hereof and otherwise complies with Section 9.30(g). The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination. The Special Servicer agrees to cooperate with the Trustee in effecting the termination of the Special Servicer’s responsibilities and rights hereunder as Special Servicer including, without limitation, providing the Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor Special Servicer designated by the Trustee to assume the Special Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Special Servicer in any REO Account and any other account or fund maintained or thereafter received with respect to the Specially Serviced Mortgage Loans. On the date specified in a written notice of termination given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority, power and rights of the Special Servicer under this Agreement with respect to the applicable Serviced Pari Passu Mortgage Loan, whether such Mortgage Loan is a Specially Serviced Mortgage Loan or otherwise, shall terminate. The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination.
Section 9.32 Certain Special Servicer Reports.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan, shall provide to the Master Servicer no later than the Determination Date for each month, the CREFC® Special Servicer Loan File, in such electronic format as is mutually acceptable to the Master Servicer and the Special Servicer and in CREFC® format. The Master Servicer may use such reports or information contained therein to prepare its reports and the Master Servicer shall forward such reports directly to the Depositor and the Certificate Administrator.
(b) The Special Servicer shall maintain accurate records, prepared by a Special Servicing Officer, of each Final Recovery Determination with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced B Note, Serviced Companion Loan or REO Property and the basis thereof. Each Final Recovery Determination shall be evidenced by an Officer’s Certificate delivered to the Trustee, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Certificate Administrator, the Custodian and the Master Servicer no later than the tenth (10th) Business Day following such Final Recovery Determination. The Special Servicer shall promptly provide the
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Master Servicer with electronic written notice of any Final Recovery Determination with respect to any Specially Serviced Mortgage Loan upon making such determination. The Special Servicer shall promptly provide a copy of such notice electronically to the Trustee, the Custodian, the Certificate Administrator (who shall promptly post a copy thereof on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post a copy thereof on the 17g-5 Information Provider’s Website pursuant to Section 5.7)).
(c) The Special Servicer shall provide to the Master Servicer, at the reasonable request in writing of the Master Servicer, any information in its possession with respect to the Specially Serviced Mortgage Loans which the Master Servicer shall require in order for the Master Servicer to comply with its obligations under this Agreement; provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder. The Master Servicer shall provide the Special Servicer at the request of the Special Servicer any information in its possession with respect to the Mortgage Loans which the Special Servicer shall require in order for the Special Servicer to comply with its obligations under this Agreement.
(d) Not later than twenty (20) days after any calendar month end, the Special Servicer shall forward to the Master Servicer a statement setting forth the status of each REO Account as of the close of business for such related calendar month end, stating that all remittances required to be made by it as required by this Agreement to be made by the Special Servicer have been made (or, if any required distribution has not been made by the Special Servicer, specifying the nature and status thereof) and showing, for the related calendar month the aggregate of deposits into and withdrawals from each REO Account.
(e) With respect to Specially Serviced Mortgage Loans and REO Properties, the Special Servicer shall use reasonable efforts to obtain and, to the extent obtained, to deliver electronically to the Master Servicer (and the Master Servicer shall, upon receipt, deliver electronically to the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor (other than during any Subordinate Control Period)), on or before April 15 of each year, commencing with April 15, 2016, (i) copies of the prior year operating statements and quarterly statements, if available, for each Mortgaged Property underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that either the related Mortgage Note or Mortgage requires the Mortgagor to provide such information, or if the related Mortgage Loan has become an REO Loan, (ii) a copy of the most recent rent roll available for each Mortgaged Property, and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy with respect to each Mortgaged Property covered by the operating statements delivered above; provided, that, with respect to any Mortgage Loan that becomes a Specially Serviced Mortgage Loan prior to April 15, 2016 and for which the items in clause (i) and (ii) above have not been delivered, the Special Servicer shall use reasonable efforts to obtain and, to the extent obtained, deliver such items to the Master Servicer, the Certificate Administrator, the Rating Agencies (subject to Section 5.7), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust
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Advisor (other than during any Subordinate Control Period), as soon as possible after receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the Depositor, the Certificate Administrator, the Trustee and the Custodian all such other information with respect to the Specially Serviced Mortgage Loans at such times and to such extent as the Master Servicer, the Trustee, the Certificate Administrator or the Depositor may from time to time reasonably request; provided that the Special Servicer shall not be required to produce any ad hoc non-standard written reports with respect to such Specially Serviced Mortgage Loans except if any Person (other than the Certificate Administrator or the Trustee) requesting such report pays a reasonable fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver electronically a written Inspection Report of each Mortgaged Property securing a Specially Serviced Mortgage Loan in accordance with Section 9.3(b) to the Master Servicer (who shall deliver electronically such written inspection report to the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), and the Trust Advisor (other than during any Subordinate Control Period)).
(h) The Special Servicer shall prepare a report (the “Asset Status Report”) recommending the taking of certain actions for each Mortgage Loan that becomes a Specially Serviced Mortgage Loan and deliver such Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the Asset Status Report, to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period, except with respect to any Excluded Mortgage Loan) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, and the Master Servicer, the Certificate Administrator, the 17g-5 Information Provider and, during any Collective Consultation Period and any Senior Consultation Period, the Trust Advisor not later than forty-five (45) days after the servicing of such Specially Serviced Mortgage Loan is transferred to the Special Servicer. Such Asset Status Report shall set forth the following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations reasonably known to the Special Servicer (including without limitation by reason of any Phase I Environmental Assessment and any additional environmental testing contemplated by Section 9.12(c)), consistent with the Servicing Standard, that are applicable to the exercise of remedies set forth herein and to the enforcement of any related guaranties or other collateral for the related Specially Serviced Mortgage Loan and whether outside legal counsel has been retained;
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(iii) the most current rent roll and income or operating statement available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer’s recommended action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or Mortgaged Properties, together with the assumptions used in the calculation thereof (which the Special Servicer may satisfy by providing a copy of the most recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer deems relevant in light of the Servicing Standard.
If (i) the Applicable Control Party affirmatively approves in writing an Asset Status Report, (ii) after ten (10) Business Days from receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, the Applicable Control Party does not object to such Asset Status Report or (iii) within ten (10) Business Days after receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, the Applicable Control Party objects to such Asset Status Report and the Special Servicer makes a determination in accordance with the Servicing Standard that such objection is not in the best interest of all the Certificateholders and any holder of a related Serviced B Note or Serviced Companion Loan, as a collective whole, then the Special Servicer shall take the recommended actions described in the Asset Status Report. Within ten (10) Business Days after receipt of an Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the Asset Status Report, the Applicable Control Party may object to such Asset Status Report; provided that following the occurrence of an extraordinary event with respect to the related Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of such ten (10) Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such action before the expiration of such ten (10) Business Day period would materially and adversely affect the interest of the Certificateholders and the holder of any related Serviced B Note or Serviced Companion Loan, and the Special Servicer has made a reasonable effort to contact the Applicable Control Party, as applicable. If the Applicable Control Party objects to an Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, within the above-referenced ten (10) Business Day period, then the Special Servicer (absent a determination set forth in clause (iii) of the first sentence of this paragraph) shall revise such Asset Status Report as soon as practicable thereafter, but in no event later than thirty (30) days after the objection to the Asset Status Report by the Applicable Control Party. The Special Servicer shall revise such Asset Status Report as provided in the prior sentence until the earlier of (a) the delivery by the Applicable Control Party of an affirmative approval in writing of such revised
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Asset Status Report, and (b) the failure of the Applicable Control Party to disapprove such revised Asset Status Report in writing within ten (10) Business Days of its receipt thereof. In any event, if the Applicable Control Party does not approve an Asset Status Report within ninety (90) days from the submission of such Asset Status Report, the Special Servicer shall take such action as directed by the Applicable Control Party, provided that such action does not violate the Servicing Standard. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement the new action in such revised report so long as such revised report has been prepared, reviewed and either approved or not rejected as provided above.
Other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder, each of the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period) and the Controlling Class Representative (during any Collective Consultation Period) will be entitled to consult with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report. During any Collective Consultation Period and any Senior Consultation Period, other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder, the Special Servicer shall consider such alternative courses of action and any other feedback provided by the Trust Advisor or the Controlling Class Representative, as applicable. The Special Servicer may revise the Asset Status Reports as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of the Trust Advisor (and, during any Collective Consultation Period, the Controlling Class Representative).
The Asset Status Report is not intended to replace or satisfy any other specific consent or approval right which the Applicable Control Party may have. Any Asset Status Report with respect to which the Special Servicer receives notice that such Mortgage Loan is an Excluded Controlling Class Mortgage Loan shall be delivered via email (or such other electronic means mutually acceptable to the parties) in one or more separate files labeled by the Special Servicer “Excluded Information” followed by the applicable loan number and loan name to the Certificate Administrator with a copy to cmbs.transactions@usbank.com.
The Special Servicer may not take any action inconsistent with an Asset Status Report that has been adopted as provided above, unless such action would be required in order to act in accordance with the Servicing Standard. If the Special Servicer takes any action inconsistent with an Asset Status Report that has been adopted as provided above, the Special Servicer shall promptly notify the Applicable Control Party of such inconsistent action and provide a reasonably detailed explanation of the reasons therefor.
The Special Servicer shall deliver to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website) a copy of each Final Asset Status Report, in each case with reasonable promptness following the adoption thereof. In addition, the Special Servicer shall prepare and forward to the Certificate Administrator (who shall promptly post same on the
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Certificate Administrator’s Website) and the 17g-5 Information Provider (who shall promptly post same on the 17g-5 Information Provider’s Website) a summary of any Final Asset Status Report (which summary shall solely reflect such Final Asset Status Report and not include extraneous information).
Notwithstanding anything herein to the contrary: (i) the Special Servicer shall have no right or obligation to consult with or to seek and/or obtain consent or approval from any Controlling Class Representative prior to acting (and provisions of this Agreement requiring such consultation, consent or approval shall be of no effect) during the period following any resignation or removal of a Controlling Class Representative and before a replacement is selected; and (ii) no advice, direction or objection from or by (x) the Controlling Class Representative, as contemplated by Section 10.3 or any other provision of this Agreement, (y) a Loan-Specific Directing Holder, as contemplated by this Agreement or the related Intercreditor Agreement, or (z) the Trust Advisor, as contemplated by this Agreement, may (and the applicable Special Servicer shall ignore and act without regard to any such advice, direction or objection that such Special Servicer has determined, in its reasonable, good faith judgment, would): (A) require or cause such Special Servicer to violate applicable law, the terms of any Mortgage Loan or any other Section of this Agreement, including the applicable Special Servicer’s obligation to act in accordance with the Servicing Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, (C) expose the Trust, any Certificateholder the Depositor, the Master Servicer, the Special Servicer, Certificate Administrator, the Custodian, the Trustee or any of their respective Affiliates, members, managers, officers, directors, employees or agents, to any material claim, suit or liability or (D) materially expand the scope of the Master Servicer’s or Special Servicer’s responsibilities under this Agreement.
(i) With respect to each Collection Period, the Special Servicer shall deliver or cause to be delivered to the Master Servicer, without charge and within two (2) Business Days following the end of such Collection Period, and the Master Servicer to the extent it has received such report shall forward or cause to be forwarded to the Certificate Administrator, without charge and on the Master Servicer Remittance Date, an electronic report (which may include HTML, Word or Excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator and the Special Servicer) that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period, provided that no such report shall be due in respect of any Collection Period during which no Disclosable Special Servicer Fees were received. For the avoidance of doubt, the Master Servicer shall not have any obligation to review, or any right or obligation to edit, the Special Servicer’s report on Disclosable Special Servicer Fees.
Section 9.33 Special Servicer to Cooperate with the Master Servicer, the Trustee, the Custodian and the Certificate Administrator.
(a) Subject to Section 5.4(e), the Special Servicer shall furnish on a timely basis such reports, certifications, and information as are reasonably requested by the Master Servicer, the Trustee, the Custodian or the Certificate Administrator to enable it to perform its duties under this Agreement; provided that no such request shall (i) require or cause the Special
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Servicer to violate the Code, any provision of this Agreement, including the Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of any REMIC Pool and the grantor trust status of the Grantor Trust or (ii) expose the Special Servicer, the Trust, the Certificate Administrator, the Custodian or the Trustee to liability or materially expand the scope of the Special Servicer’s responsibilities under this Agreement. In addition, the Special Servicer shall notify the Master Servicer of all expenditures incurred by it with respect to the Specially Serviced Mortgage Loans which are required to be made by the Master Servicer as Servicing Advances as provided herein, subject to the provisions of Section 4.4 hereof. The Special Servicer shall also remit all invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) In addition to any other rights that a Controlling Class Representative or Loan-Specific Directing Holder may have hereunder, the Special Servicer shall from time to time make reports, recommendations and analyses to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period and other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, with respect to the following matters, the expense of which shall not be an expense of the Trust (except for out-of-pocket expenses of the Special Servicer, which shall be reimbursable in accordance with Section 4.6(e)):
(i) whether the foreclosure of a Mortgaged Property relating to a Specially Serviced Mortgage Loan would be in the best economic interest of the Trust;
(ii) if the Special Servicer elects to proceed with a foreclosure, whether a deficiency judgment should or should not be sought because the likely recovery will or will not be sufficient to warrant the cost, time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any “due-on-sale” clause or “due-on-encumbrance” clause contained in a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or is a Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement from or with a person to whom a Mortgaged Property securing a Specially Serviced Mortgage Loan has been or is about to be conveyed, whether to release the original Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute a new Mortgagor, and whether the credit status of the prospective new Mortgagor is in compliance with the Special Servicer’s regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced Mortgage Loan secured by a Mortgaged Property which is not in compliance with CERCLA, or any comparable environmental law, whether it is in the best economic interest of the Trust to
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bring the Mortgaged Property into compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall include any proposed release, substitution or addition of collateral), extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan (other than any Non-Serviced Mortgage Loan), prepare a summary of such proposed action and an analysis of whether or not such action is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Mortgage Loan; such analysis shall specify the basis on which the Special Servicer made such determination, including the status of any existing material default or the grounds for concluding that a payment default is imminent.
Section 9.34 Litigation Control.
(a) With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan or any Excluded Mortgage Loan), any Serviced Companion Loan, any Serviced B Note or any related REO Mortgage Loan or related REO Property, the Special Servicer shall, in accordance with the Servicing Standard, direct, manage, prosecute and/or defend any action brought by a Mortgagor, guarantor, other obligor on the related Mortgage Note or any Affiliates thereof (each a “Borrower-Related Party”) against the Trust, the Master Servicer and/or the Special Servicer or any predecessor master servicer or Special Servicer, and represent the interests of the Trust in any litigation relating to the rights and obligations of the Trust, or of the Mortgagor or other Borrower-Related Party under the related Mortgage Loan documents, or with respect to the related Mortgaged Property or other collateral securing such Mortgage Loan (or Loan Pair or A/B Whole Loan), or otherwise with respect to the enforcement of the obligations of a Borrower-Related Party under the related Mortgage Loan documents (“Trust-Related Litigation”). In the event that the Master Servicer is named in any Trust-Related Litigation but the Special Servicer is not named in such Trust-Related Litigation (regardless of whether the Trust is named in such Trust-Related Litigation), the Master Servicer shall notify the Special Servicer of such litigation as soon as reasonably practicable but in any event no later than within ten (10) Business Days of the Master Servicer receiving service of such Trust-Related Litigation.
(b) With respect to any Non-Specially Serviced Mortgage Loan and to the extent the Master Servicer is named in the Trust-Related Litigation, and neither the Trust nor the Special Servicer is named, in order to effectuate the role of the Special Servicer as contemplated by the immediately preceding subsection, the Master Servicer shall (i) provide quarterly (unless requested in writing from time to time on a more frequent basis) status reports to the Special Servicer regarding such litigation; (ii) use reasonable efforts to have the Trust replace the Master Servicer as the appropriate party to the lawsuit; and (iii) so long as the Master Servicer remains a party to such lawsuit, consult with, and take direction from, the Special Servicer with respect to material decisions and material monetary settlements related to the interests of the Trust in such Trust-Related Litigation, including but not limited to the selection of counsel. If and/or once the Trust and/or the Special Servicer are named, the Special Servicer shall assume control of the Trust-Related Litigation as provided in Section 9.34(a) above, the Master Servicer shall no longer have the reporting obligations set forth above and the Special Servicer’s selection of counsel shall be subject to the consent of the Master Servicer which consent shall not be
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unreasonably withheld. Further, if there are claims against the Master Servicer, the Trust, and the Special Servicer, each party at the request of the other shall enter into a joint defense agreement in accordance with Section 9.34(h) below.
(c) The Special Servicer shall not (i) undertake (or direct the Master Servicer to undertake) any material settlement of any Trust-Related Litigation or (ii) initiate any material Trust-Related Litigation unless and until (A) it has notified in writing the Controlling Class Representative (during any Subordinate Control Period or Collective Consultation Period) (to the extent the identity of the Controlling Class Representative is actually known to the Special Servicer; provided that the Special Servicer shall make due inquiry of the Certificate Administrator as to the identity of the Controlling Class Representative) and the related holder of any Serviced Companion Loan or Serviced B Note (if such matter affects such related Serviced Companion Loan or Serviced B Note) (to the extent the identity of the holder of such Serviced Companion Loan or Serviced B Note is actually known to the Special Servicer) and (B) the Controlling Class Representative (during a Subordinate Control Period) has not objected in writing within five (5) Business Days of having been notified thereof and having been provided with all information that the Controlling Class Representative has reasonably requested with respect thereto promptly following its receipt of the subject notice (it being understood and agreed that if such written objection has not been received by the Special Servicer within such 5 Business Day period, then the Controlling Class Representative shall be deemed to have approved the taking of such action); provided that, if the Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders and, with respect to an A/B Whole Loan or Loan Pair, the related Serviced Companion Loan holders and/or Serviced B Note holders, the Special Servicer may take such action without waiting for the Controlling Class Representative’s response.
(d) Notwithstanding Section 9.34(c) above, neither the Special Servicer nor the Master Servicer shall follow any advice, direction or consultation provided by the Controlling Class Representative (or any other party to this Agreement) that would require or cause the Special Servicer or the Master Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer or the Master Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan, A/B Whole Loan or Loan Pair, expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, cause any REMIC created under this Agreement to fail to qualify as a REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC provisions or materially expand the scope of the Special Servicer’s or the Master Servicer’s, as applicable, responsibilities under this Agreement.
(e) Notwithstanding the right of the Special Servicer provided under this Section 9.34 to represent the interests of the Trust in Trust-Related Litigation, the Master Servicer shall retain the right at all times to make determinations in the Master Servicer’s sole discretion, relating to material and direct claims against the Master Servicer where a settlement by the Special Servicer has not otherwise been resolved pursuant to the terms of clause (g) below, including but not limited to the right to engage separate counsel, to make settlement decisions and to appear in any proceeding on its own behalf. The cost related to or incurred in
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connection with exercising such rights shall be subject to indemnification as and to the extent provided in this Agreement.
(f) Further, nothing in this Section 9.34 shall require the Master Servicer to take or fail to take any action which, in the Master Servicer’s reasonable judgment, may (i) cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of “prohibited transaction” or “prohibited contribution” tax under the Code, or otherwise result in a violation of the REMIC Provisions, (ii) cause the Master Servicer to violate the Servicing Standard, (iii) result in a violation of applicable law or the Mortgage Loan documents or (ii) subject the Master Servicer to liability or materially expand the scope of the Master Servicer’s obligations under this Agreement.
(g) In the event where the Master Servicer or Special Servicer is a named party neither the Special Servicer nor the Master Servicer shall settle on behalf of the Master Servicer or Special Servicer, as applicable, any Trust-Related Litigation without such party’s consent unless: (i) such settlement does not contain or require any admission of liability, wrongdoing or consent to injunctive relief on the part of the Master Servicer or the Special Servicer, as applicable, and the Master Servicer or the Special Servicer are each fully released, (ii) the cost of such settlement or any resulting judgment is and shall be paid by the Trust and payment of such cost or judgment is provided for in this Agreement, (iii) each of the Master Servicer and the Special Servicer is and shall be indemnified as and to the extent provided in this Agreement for all costs and expenses incurred in defending and settling the Trust-Related Litigation and for any judgment, (iv) any such action taken by the Master Servicer at the direction of the Special Servicer shall be deemed (as to the Master Servicer) to be in compliance with the Servicing Standard and (v) the Master Servicer or the Special Servicer, as applicable, provides the Master Servicer or the Special Servicer, as applicable, with assurance reasonably satisfactory to the Master Servicer or the Special Servicer, as applicable, as to the items in clauses (i), (ii), (iii) and (iv).
(h) In the event both the Master Servicer and the Special Servicer or the Trust are named in Trust-Related Litigation, to the extent that the Master Servicer and the Special Servicer deem it appropriate, the Master Servicer and the Special Servicer shall (i) use reasonable efforts to enter into a joint defense agreement and (ii) otherwise cooperate with each other to afford the Master Servicer and the Special Servicer the rights afforded to such party in this Section 9.34.
(i) This Section 9.34 shall not apply in the event the Special Servicer authorizes the Master Servicer, and the Master Servicer agrees (both authority and agreement to be in writing), to make certain decisions or control certain Trust-Related Litigation on behalf of the Trust in accordance with the Servicing Standard.
(j) Notwithstanding the foregoing, (i) in the event that any action, suit, litigation or proceeding names the Certificate Administrator, the Trustee or the Custodian, as applicable, in its individual capacity, or in the event that any judgment is rendered against the Certificate Administrator, the Trustee or the Custodian, as applicable, in its individual capacity, the Certificate Administrator, the Trustee or the Custodian, as applicable, upon prior written
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notice to the Master Servicer or the Special Servicer, as applicable, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (ii) in the event of any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or mortgaged properties, neither the Master Servicer nor the Special Servicer shall, without the prior written consent of the Certificate Administrator, the Trustee or the Custodian, as applicable, (A) initiate an action, suit, litigation or proceeding in the name of the Certificate Administrator, the Trustee or the Custodian, as applicable, whether in such capacity or individually, (B) engage counsel to represent the Certificate Administrator, the Trustee or the Custodian, as applicable, or (C) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other similar action with the intent to cause, and that actually causes, the Certificate Administrator, the Trustee or the Custodian, as applicable, to be registered to do business in any state (provided that neither the Master Servicer nor the Special Servicer shall be responsible for any delay due to the unwillingness of the Certificate Administrator, the Trustee or the Custodian, as applicable, to grant such consent); and (iii) in the event that any court finds that the Certificate Administrator, the Trustee or the Custodian, as applicable, is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Certificate Administrator, the Trustee or the Custodian, as applicable, shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests, whether as the Certificate Administrator, the Trustee or the Custodian, as applicable, or individually (but not to otherwise direct, manage or prosecute such litigation or claim); provided, however, nothing in this subsection shall be interpreted to preclude the Special Servicer (with respect to any material Trust-Related Litigation, with the consent or consultation of the Controlling Class Representative during a Subordinate Control Period or Collective Consultation Period, respectively, to the extent required in Section 9.34(c), respectively) from initiating any action, suit, litigation or proceeding in its name as representative of the Trustee of the Trust. References to Mortgage Loans (including references to Mortgagors, guarantors, obligors and Mortgaged Properties) in this Section 9.34 shall mean Mortgage Loans other than Non-Serviced Mortgage Loans.
ARTICLE
X
CERTAIN MATTERS RELATING TO THE CONTROLLING CLASS
REPRESENTATIVE, THE TRUST ADVISOR AND THE HOLDERS OF THE
SERVICED B NOTES
AND SERVICED COMPANION LOANS
Section 10.1 Selection and Removal of the Controlling Class Representative.
(a) The Majority Controlling Class Certificateholders may elect the Controlling Class Representative.
The Controlling Class Representative shall be the representative appointed by the Majority Controlling Class Certificateholders, as determined by the Certificate Registrar from time to time; provided that (i) absent such selection, or (ii) until a Controlling Class Representative is so selected, or (iii) upon receipt of notice from the Majority Controlling Class
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Certificateholders that a Controlling Class Representative is no longer so designated, the Controlling Class Certificateholder which owns, and is identified (with contact information) to the Master Servicer, the Special Servicer and Certificate Administrator as owning, the largest aggregate Certificate Balance of Certificates of the Controlling Class shall be the Controlling Class Representative; provided that, if such Holder elects or has elected to not be the Controlling Class Representative, then the Holder of the next largest aggregate Certificate Balance shall be the Controlling Class Representative. Each Holder of the Certificates of the Controlling Class shall be entitled to vote in each election of the Controlling Class Representative.
(b) Notwithstanding anything to the contrary herein, neither the Depositor nor any Affiliate thereof may serve as Controlling Class Representative, and solely for purposes of determining the identity of or selecting the Controlling Class Representative as described in clause (a) above, any Control Eligible Certificates held by the Depositor or any Affiliate thereof shall be deemed not to be outstanding.
(c) The initial Controlling Class Representative is Ellington Management Group, LLC. The Controlling Class shall give written notice to the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor, the Master Servicer and the Special Servicer of the appointment of any subsequent Controlling Class Representative (in order to receive notices hereunder).
On the Closing Date, the initial Controlling Class Representative shall deliver a certification substantially in the form of Exhibit I-1G to this Agreement. Upon the resignation or removal of the existing Controlling Class Representative, any successor Controlling Class Representative shall also deliver a certification substantially in the form of Exhibit I-1G to this Agreement prior to being recognized as the new Controlling Class Representative.
(d) The Controlling Class Representative may be removed at any time by the written vote of the Majority Controlling Class Certificateholders, and a copy of the results of such vote must be delivered to each of the parties to this Agreement.
(e) Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Certificate of the Controlling Class, the selection of a Controlling Class Representative or the resignation or removal thereof. Any Certificateholder or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the Certificate Administrator when such Certificateholder or its designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Trustee, the Special Servicer and the Master Servicer of the identity of the Controlling Class Representative and any resignation or removal thereof. In addition, upon the request of the Master Servicer or the Special Servicer, as applicable, the Certificate Administrator shall provide the name of the then-current Controlling Class and a list of the Certificateholders (or Certificate Owners, if applicable, at the expense of the requesting party) of the Controlling Class to such requesting party.
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(f) Once a Controlling Class Representative has been selected, each of the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Trustee, the Custodian and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Majority Controlling Class Certificateholders shall have notified each other party to this Agreement and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative.
(g) Until it receives notice to the contrary, each party to this Agreement shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Section 10.2 Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders. The Controlling Class Representative shall not be liable to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, in accordance with or as permitted by this Agreement.
Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative, the Holders of the Control Eligible Certificates and/or the Loan-Specific Directing Holders may each have special relationships and interests that conflict with those of Holders of one or more other Classes of Certificates; (ii) the Controlling Class Representative and/or the Holders of the Control Eligible Certificates may act solely in the interests of the Holders of the respective Classes of the Control Eligible Certificates (or any of them), and any Loan-Specific Directing Holder may act solely in its own interests; (iii) the Controlling Class Representative, the Holders of the Control Eligible Certificates and the Loan-Specific Directing Holders do not have any duties to the Holders of any other Class of Certificates; (iv) the Controlling Class Representative and/or the Holders of the Control Eligible Certificates may take actions that favor interests of the Holders of the respective Classes of the Control Eligible Certificates (or any of them), and any Loan-Specific Directing Holder may take actions that favor its interests, over the interests of the Holders of one or more other Classes of Certificates; (v) none of the Controlling Class Representative, the Holders of the Control Eligible Certificates and/or the Loan-Specific Directing Holders shall have any liability whatsoever to the Trust, the other parties to this Agreement, the Certificateholders or any other Person (including any Mortgagor) for having acted or refrained from acting in accordance with or as permitted under the terms of this Agreement; and (vi) the Holders of the Certificates may not take any action whatsoever against the Controlling Class Representative, the Controlling Class, any Holder of a Control Eligible Certificate, any Loan-Specific Directing Holder or any of the respective affiliates, directors, officers, shareholders, members, partners, agents or principals thereof as a result of the Controlling Class Representative, the Controlling Class, the Holders of the Control Eligible Certificates and/or any Loan-Specific Directing Holder as applicable, for having acted or refrained from acting in accordance with the terms of and as permitted under this Agreement.
Section 10.3 Rights and Powers of Controlling Class Representative.
(a) Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, Section 10.3(b), Section 10.3(c) and the second (2nd) and third (3rd)
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paragraphs of this Section 10.3(a), (i) the Master Servicer shall not be permitted to take (to the extent that it is authorized to do so hereunder) any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer (which approval shall be deemed given if the Special Servicer does not object within fifteen (15) Business Days (or (A) in the case of an action relating to an A/B Whole Loan or Loan Pair, while the holder of the related Serviced B Note or Serviced Companion Loan, as the case may be, or its designee is the related Loan-Specific Directing Holder, within the period expiring five (5) Business Days following the expiration of the related Loan-Specific Directing Holder’s decision period under the related Intercreditor Agreement, and (B) in the case of a determination of an Acceptable Insurance Default, ninety (90) days) of receipt of the Master Servicer’s written analysis and recommendation together with any information in the possession of the Master Servicer that is reasonably required to make a decision regarding the subject action), and (ii) the Special Servicer shall not be permitted to take, or to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision, (A) during any Subordinate Control Period, as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, thirty (30) days), or (B) in the case of an action relating to an A/B Whole Loan or Loan Pair, while the holder of the related Serviced B Note or Serviced Companion Loan, as the case may be, is the related Loan-Specific Directing Holder, as to which the related Loan-Specific Directing Holder has objected within the decision period provided for under the related Intercreditor Agreement, in each case after receipt of the written recommendation and analysis from the Special Servicer, together with any information in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the subject action (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) day) period, then the Controlling Class Representative will be deemed to have approved such action); provided that if the Special Servicer or Master Servicer (if the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative during any Subordinate Control Period, is necessary to protect the interests of the Certificateholders and, with respect to any A/B Whole Loan or Loan Pair, the holder of the related Serviced B Note or Serviced Companion Loan, as applicable (as a collective whole as if such Certificateholders and the holder of such Serviced B Note or Serviced Companion Loan, as the case may be, constituted a single lender), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s) response; provided, further, that the Special Servicer is not required to obtain the consent of the Controlling Class Representative for any of the foregoing actions during any Collective Consultation Period or any Senior Consultation Period (or, in the case of an Excluded Mortgage Loan, at any time that the subject Mortgage Loan is an Excluded Mortgage Loan); provided, further, that the Special Servicer will be required to consult, solely on a non-binding basis (and to consider alternative actions recommended by each such party) (i) during any Collective Consultation Period and any Senior Consultation Period, with the Trust Advisor, as to any of the Major Decisions, and (ii) during any Collective Consultation Period, with the Controlling Class Representative with respect to any of the Major Decisions and any other matter as to which consent of the Controlling Class Representative would have been required during
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any Subordinate Control Period. Notwithstanding anything in this Agreement to the contrary, to the extent that the Master Servicer does not process a Major Decision or Special Servicer Decision, the Master Servicer shall have no duty to deliver to the Special Servicer any analysis or recommendations in connection with any such action but shall be required to provide all information in its possession that is reasonably necessary for the Special Servicer to make a decision with respect to the applicable Major Decision or Special Servicer Decision.
In addition, during any Subordinate Control Period, subject to Section 10.3(b), Section 10.3(c) and the immediately following paragraph, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, A/B Whole Loan or Loan Pair (other than (x) any Non-Serviced Mortgage Loan or Non-Serviced Loan Combination, and (y) any A/B Whole Loan or Loan Pair as long as the holder of the related Serviced B Note or Serviced Companion Loan is the Loan-Specific Directing Holder of such A/B Whole Loan or Loan Pair) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no direction or objection contemplated by the preceding paragraph or any other provision of this Agreement, may require or cause the Master Servicer or the Special Servicer to violate any provision of any loan documents, any Intercreditor Agreement, applicable law, this Agreement or the REMIC Provisions, including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trustee or the Trust to liability, or materially expand the scope of the Special Servicer’s responsibilities hereunder. Furthermore, in addition to the Controlling Class Representative’s rights of consent and consultation (as applicable) as set forth in Section 10.3(a) above, it is understood and agreed that to the extent any other provision of this Agreement requires the provision of notice to, the obtaining of consent of, and/or consultation with, the Controlling Class Representative, or otherwise provides for any right of the Controlling Class Representative thereunder, then none of the Trustee, the Master Servicer or the Special Servicer shall be entitled to take any action (or omit to take any action) in contravention of the applicable rights of the Controlling Class Representative contained in such provision; provided that this sentence is not intended to in any way (i) expand the rights of the Controlling Class Representative, (ii) limit the application of the immediately preceding sentence, (iii) remove any limitations on the exercise of such rights set forth in, such other provisions, or (iv) require the Trustee, the Master Servicer and/or the Special Servicer to send a notice to, obtain the consent of, or consult with a new Controlling Class Representative whose name and contact information have not yet been provided to the Trustee, the Master Servicer and/or the Special Servicer; and provided, further, that if such other provisions are in any way subject to this Section 10.3, then the exercise of such rights shall be subject to Section 10.3(b) and the immediately following paragraph.
If the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any direction or advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any loan documents, any Intercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Controlling Class Representative, the
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Trustee, the Certificate Administrator and the 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Master Servicer or Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any loan documents, any Intercreditor Agreement, any applicable law, the REMIC Provisions, or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of the Master Servicer or the Special Servicer.
(b) During any Senior Consultation Period, the Controlling Class Representative shall have no consultation rights under this Agreement and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; provided that the Controlling Class Representative (if and to the extent that it is a Certificateholder) will maintain the right to exercise its Voting Rights for the same purposes as any other Certificateholder under this Agreement. Notwithstanding anything to the contrary contained herein: (i) for so long as the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan Pair, the Controlling Class Representative shall not be entitled to exercise any of the rights in Section 10.3(a) with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property; and (ii) the Controlling Class Representative shall not have any consent rights with respect to any Non-Serviced Mortgage Loan but (during any Subordinate Control Period or Collective Consultation Period) shall have consultation rights with respect to such Non-Serviced Mortgage Loans, in each case as and to the extent set forth in the related Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, for so long as the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan Pair, (i) such Loan-Specific Directing Holder shall be entitled to exercise with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property all of the rights and powers of such Loan-Specific Directing Holder under the related Intercreditor Agreement, and (ii) the Controlling Class Representative shall not have any of the consent rights or rights to direct the Special Servicer contemplated by Section 10.3(a) with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property except as set forth in the related Intercreditor Agreement. The rights of the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee as Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan Pair will be unaffected by the existence of any Subordinate Control Period, Collective Consultation Period or Senior Consultation Period.
(d) No Controlling Class Certificateholder or Controlling Class Representative shall be permitted to direct the Master Servicer to accept a Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation of a Mortgage Loan) prior to the Due Date for such Mortgage Loan for the related Collection Period unless, to the extent otherwise permitted pursuant to the terms of this Agreement, such Mortgage Loan is a Specially Serviced Mortgage Loan.
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Section 10.4 Controlling Class Representative and Trust Advisor Contact with Master Servicer and Special Servicer. Upon reasonable request, each of the Master Servicer and the Special Servicer shall, without charge, make a Servicing Officer or Special Servicing Officer, as applicable, available to answer questions from the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor (other than during any Subordinate Control Period) regarding the performance and servicing of the Mortgage Loans (or, in the case of the Special Servicer, Specially Serviced Mortgage Loans and REO Properties) for which the Master Servicer or the Special Servicer, as the case may be, is responsible (but shall not respond to questions of the Trust Advisor with any information regarding communications between the Controlling Class Representative or a Loan-Specific Directing Holder, on the one hand, and the Master Servicer or Special Servicer, on the other hand).
Section 10.5 Appointment, Duties and Compensation of the Trust Advisor.
(a) (i) The Trust Advisor shall promptly review all information available to Privileged Persons on the Certificate Administrator’s Website related to any Specially Serviced Mortgage Loan or REO Property and included as part of the CREFC® Investor Reporting Package (IRP) and each Asset Status Report delivered to the Trust Advisor by the Special Servicer; provided, that during any Subordinate Control Period, the Trust Advisor shall only be permitted to review Final Asset Status Reports.
(ii) During any Collective Consultation Period and any Senior Consultation Period, within sixty (60) days after the end of each calendar year during which any Mortgage Loan was a Specially Serviced Mortgage Loan or any Mortgaged Property was an REO Property, the Trust Advisor shall meet with representatives of the Special Servicer (if it was acting as Special Servicer as of December 31st in the prior calendar year and has continued in such capacity through the date of such meeting) to perform a review of the Special Servicer’s operational practices in light of the Servicing Standard and the requirements of this Agreement and shall discuss the Special Servicer’s stated policies and procedures, operational controls and protocols, risk management systems, intellectual resources, the Special Servicer’s reasoning for believing it is in compliance with this Agreement and other pertinent information the Trust Advisor may consider relevant, in each case, insofar as such information relates to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties.
(iii) The Trust Advisor shall provide the Special Servicer at least thirty (30) days’ prior written notice of the date proposed for the annual meeting described in this Section 10.5(a)(iii). The Trust Advisor and the Special Servicer shall determine a mutually acceptable date for the annual meeting. The Trust Advisor shall deliver, at least fourteen (14) days prior to such annual meeting, a proposed written agenda to the Special Servicer and such agenda shall identify the Asset Status Reports that shall be discussed during the annual meeting. The Trust Advisor and the Special Servicer may discuss any of the Asset Status Reports produced and any Specially Serviced Mortgage Loan and any REO Property as part of the Trust Advisor’s annual assessment of the Special Servicer’s performance hereunder. The Special Servicer shall make available senior Special Servicing Officers with relevant knowledge regarding the applicable Specially Serviced
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Mortgage Loans and REO Properties and the related platform level information for each annual meeting.
(iv) During any Collective Consultation Period and any Senior Consultation Period, based on the Trust Advisor’s meeting with the Special Servicer, the Trust Advisor’s review of any Asset Status Reports and other information delivered to the Trust Advisor by the Special Servicer (other than any communications between the Controlling Class Representative or a Loan-Specific Directing Holder and the Special Servicer that would be Privileged Information) and any other information available to Privileged Persons on the Certificate Administrator’s Website, the Trust Advisor shall, in each case, deliver to the Certificate Administrator and the 17g-5 Information Provider (each of which shall promptly post such Trust Advisor Annual Report on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, respectively) within 120 days of the end of the prior calendar year an annual report (the “Trust Advisor Annual Report”), substantially in the form of Exhibit L hereto; provided, that in no event shall the information or any other content included in any Trust Advisor Annual Report consist of Privileged Information or otherwise contravene any provision of this Agreement; provided, further, that in the event a lack of access to Privileged Information limits or prohibits the Trust Advisor from performing its duties under this Agreement, the Trust Advisor shall set forth, subject to Section 10.5(l) (it being understood the restrictions referenced in Section 10.5(l) shall not be cited as a limitation or prohibition except to the extent information was requested and not provided in accordance with the provisions of Section 10.5(l)), any such limitations or prohibitions in the related Trust Advisor Annual Report, and the Trust Advisor shall not be subject to any liability arising from its lack of access to Privileged Information. Each Trust Advisor Annual Report shall set forth the Trust Advisor’s assessment of the Special Servicer’s performance of its duties under this Agreement during the prior calendar year on a platform-level basis with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties. Each of the Special Servicer and, during any Collective Consultation Period, the Controlling Class Representative shall be given an opportunity to review any Trust Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider; provided, that the Trust Advisor shall have no obligation to adopt any comments to such Trust Advisor Annual Report that are provided by the Special Servicer and/or the Controlling Class Representative. Subject to the restrictions in this Agreement, each such Trust Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties, and (B) comply with all of the confidentiality requirements described in this Agreement regarding Privileged Information. If the Special Servicer is replaced, the Trust Advisor Annual Report shall only relate to the entity that was acting as Special Servicer as of December 31st in the prior calendar year and is continuing in such capacity through the date of such Trust Advisor Annual Report. Notwithstanding the foregoing provisions of this Section 10.5(a)(iv), no Trust Advisor Annual Report shall be required to be prepared or delivered with respect to any calendar year as to which no annual meeting described in Section 10.5(a)(ii) shall have been required to be held or with respect to any calendar year during which no Asset Status Reports have been prepared.
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As used in connection with the Trust Advisor Annual Report, the term “platform-level basis” refers to the Special Servicer’s performance of its duties as they relate to the resolution or liquidation of Specially Serviced Mortgage Loans, taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Trust Advisor of any annual compliance statement, assessment of compliance report, attestation report, Asset Status Report and other information delivered to the Trust Advisor by the Special Servicer (other than any communications between the Controlling Class Representative or any related Directing Holder, as applicable, and the Special Servicer that would be Privileged Information) pursuant to the provisions of this Agreement.
(b) The Trust Advisor, as an independent contractor, shall review the Special Servicer’s operational practices in respect of Specially Serviced Mortgage Loans and REO Properties, consult (on a non-binding basis) with the Special Servicer and perform each other obligation of the Trust Advisor as set forth in this Agreement in accordance with the Trust Advisor Standard. The Trust Advisor shall not owe any fiduciary duty to the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, any Holder of a Certificate or any other Person in connection with this Agreement. Certificateholders are hereby deemed to have acknowledged and agreed that (i) there could be multiple strategies to resolve any Specially Serviced Mortgage Loan and the objective of the Trust Advisor’s participation in any resolution process is to provide additional oversight relating to the Special Servicer’s compliance with the Servicing Standard in making its determinations as to which strategy to execute; (ii) the Trust Advisor shall have no authority or duty to make a determination on behalf of the Trust, nor any responsibility for decisions made by or on behalf of the Trust; (iii) the Trust Advisor is not an advisor to any Person, including without limitation any Certificateholder; and (iv) the Trust Advisor is not an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended.
(c) During any Subordinate Control Period, the Special Servicer will forward any Appraisal Reduction and net present value calculations used in the Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Mortgage Loan to the Trust Advisor after such calculations have been finalized. The Trust Advisor shall review such calculations but shall not take any affirmative action with respect to such Appraisal Reduction calculations and/or net present value calculations.
(d) During any Collective Consultation Period and any Senior Consultation Period, after the calculation but prior to the utilization by the Special Servicer of any of the calculations related to (i) Appraisal Reductions or (ii) net present value, the Special Servicer shall promptly forward such calculations, and the Special Servicer shall promptly forward any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Trust Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Information), to the Trust Advisor but in any event no later than two (2) Business Days after preparing such calculations, and the Trust Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary
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portions of the applicable formulas required to be utilized in connection with any such calculation prior to utilization by the Special Servicer provided, that notwithstanding the foregoing, the Trust Advisor will not be permitted to recalculate or verify any Appraisal Reduction or net present value calculations performed by the Special Servicer with respect to any Serviced B Note or Serviced Companion Loan for so long as the related Serviced B Note holder or Serviced Companion Loan holder is the related Applicable Control Party with respect to the related A/B Whole Loan or Loan Pair. The Trust Advisor may not opine on or call into question these calculations, other than with respect to mathematical errors and the corresponding application of the non-discretionary portions of the applicable formula required to be utilized in connection with any such calculation prior to utilization by the Special Servicer.
In connection with this Section 10.5(d), if the Trust Advisor does not agree with the mathematical calculations or the application of the applicable non-discretionary portions of the formula required to be utilized for such calculation, the Trust Advisor and Special Servicer shall consult with each other in order to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations. If the Trust Advisor and Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Trust Advisor shall promptly notify the Trustee of such disagreement and the Trustee shall determine which calculation is to apply. In making such determination, the Trustee may hire an independent third-party to assist with any such calculation at the expense of the Trust.
(e) Notwithstanding anything herein to the contrary, the Trust Advisor shall have no consultation rights or obligations with respect to any Non-Serviced Mortgage Loans (or any related REO Property), the 261 Fifth Avenue Mortgage Loan or any Non-Serviced Loan Combination.
(f) During any Collective Consultation Period, any Senior Consultation Period or, with respect to any Excluded Mortgage Loan, any Subordinate Control Period, the Special Servicer shall consult (on a non-binding basis) with the Trust Advisor in connection with any Major Decision involving any Mortgage Loan, A/B Whole Loan, Loan Pair or any related REO Property and consider alternative actions recommended by the Trust Advisor; provided, that with respect to matters related to any A/B Whole Loan and any Loan Pair, the Special Servicer shall only be required to consult with the Trust Advisor in respect of such A/B Whole Loan or Loan Pair, as applicable, if the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, is not, or has ceased to be, the related Loan-Specific Directing Holder, and prior to such time, the Trust Advisor shall have no obligations under this Agreement with respect to such A/B Whole Loan or Loan Pair, as applicable.
(g) Subject to the requirements of confidentiality imposed on the Trust Advisor herein (including without limitation in respect of Privileged Information), the Trust Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 5.4.
(h) The Trust Advisor shall keep all Privileged Information confidential and shall not disclose such Privileged Information to any other person (including any
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Certificateholders), other than to the other parties to this Agreement, to the extent expressly required by this Agreement, which parties, in turn, if they have been advised that such information is Privileged Information, shall not without the prior written consent of the Special Servicer and the Controlling Class Representative (or with respect to an A/B Whole Loan or a Loan Pair any other Applicable Control Party), disclose such information to any other Person, except that such parties and the Trust Advisor may disclose such information if (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by such parties or the Trust Advisor, as applicable, (b) it is reasonable and necessary for such parties or the Trust Advisor, as applicable, to do so in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such party or the Trust Advisor, as applicable, and not otherwise subject to a confidentiality obligation and/or (d) such disclosure is required by applicable law, as evidenced by an opinion of counsel (which, in the case of any opinion of counsel for the Trust Advisor, shall be a Trust Advisor Expense) delivered to the Trust Advisor, the Special Servicer, the Controlling Class Representative (or with respect to an A/B Whole Loan or a Loan Pair the Applicable Control Party), as applicable, the Certificate Administrator and the Trustee. Notwithstanding the foregoing, the Trust Advisor will be permitted to share Privileged Information with its Affiliates and any subcontractors of the Trust Advisor to the extent reasonably necessary to perform the Trust Advisor’s obligations under this Agreement and provided such Trust Advisor Affiliates and subcontractors agree in writing prior to their receipt of such Privileged Information to be bound by the same confidentiality provisions applicable to the Trust Advisor. Subject to the terms and conditions in this Agreement related to Privileged Information, the Trust Advisor agrees that it shall use information received from the Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.
(i) The Trust Advisor shall be entitled to the Trust Advisor Fee. In addition, the Trust Advisor Consulting Fee shall be payable to the Trust Advisor with respect to each Major Decision as to which the Trust Advisor has consultation rights. The Trust Advisor Fee and any Trust Advisor Consulting Fees (to the extent such Trust Advisor Consulting Fee is actually received from the related Mortgagor) shall be payable from funds on deposit in the Collection Account as provided in Section 5.2. When the Trust Advisor has consultation rights with respect to a Major Decision under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Trust Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision, but only to the extent not prohibited by the related Mortgage Loan documents. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Trust Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard, but in no event shall the Master Servicer or the Special Servicer take any enforcement action with respect to the collection of such Trust Advisor Consulting Fee other than requests for collection; provided, that the Master Servicer or the Special Servicer, as applicable, shall consult with the Trust Advisor prior to any such waiver or reduction.
(j) The Trust Advisor shall be entitled to reimbursement of any Trust Advisor Expenses provided for pursuant to Section 10.11, such amounts to be reimbursed from amounts on deposit in the Distribution Account as provided by Section 5.3, but solely to the extent
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payable from amounts available as set forth in Section 6.11. The Trust Advisor hereby acknowledges and agrees that in no event will any Trust Advisor Expenses be payable from, and the Trust Advisor hereby waives any and all claims to, amounts distributable in respect of, the Control Eligible Certificates. Each successor Trust Advisor shall be required to acknowledge and agree to the terms of the preceding sentence.
(k) Except as set forth in this Agreement, the Trust Advisor, any successor trust advisor and any of their respective affiliates shall not accept any fees or other compensation or other consideration (x) in respect of the Trust Advisor’s (or successor trust advisor’s) obligations under this Agreement or the performance thereof or (y) in connection with the appointment of a successor special servicer or the recommendation by the Trust Advisor (or successor trust advisor) for a replacement special servicer to become the special servicer under this Agreement.
(l) Notwithstanding anything in this Agreement to the contrary (i) the Trust Advisor’s assessment of the Special Servicer’s performance shall be based on the provisions of this Agreement and (ii) so long as LNR Partners, LLC is acting as Special Servicer, LNR Partners, LLC shall provide the Trust Advisor reasonable access, at LNR Partners, LLC’s offices during normal business hours, to LNR Partners, LLC’s policies and procedures. The Trust Advisor will be permitted to review such policies and procedures but will not be permitted to retain hard copies and will not be provided with any electronic copies or soft copies. The Trust Advisor shall keep all information contained in the policies and procedures strictly confidential, except (A) the Trust Advisor may disclose such information if (i) such information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the Trust Advisor, or (ii) such disclosure is required by applicable law, as evidenced by an opinion of counsel (which shall be a Trust Advisor Expense) delivered to the Trust Advisor and the Special Servicer, and (B) the Trust Advisor may disclose a particular portion of the policies and procedures solely when necessary to support specific conclusions concerning allegations of material deviations from the Servicing Standard (i) in the Trust Advisor Annual Report, or (ii) in connection with a recommendation by the Trust Advisor to replace LNR Partners, LLC as the Special Servicer pursuant to the provisions of this Agreement. Notwithstanding the foregoing, the Trust Advisor will be permitted to share such information with its Affiliates and any subcontractors of the Trust Advisor to the extent reasonably necessary to perform the Trust Advisor’s obligations under this Agreement and provided such Trust Advisor Affiliates and subcontractors agree in writing prior to their receipt of such information to be bound by the same confidentiality provisions applicable to the Trust Advisor. The Trust Advisor’s assessment may not take into account the fact that LNR Partners, LLC limited the Trust Advisor’s access to the LNR Partners, LLC written policies and procedures pursuant to the provisions of this Agreement. Nothing set forth herein shall limit or affect the scope of the Trust Advisor’s platform level review in connection with its preparation of the Trust Advisor Annual Report, provided that the Trust Advisor’s access to or reliance upon LNR Partners, LLC’s written policies and procedures shall be subject to the terms of this paragraph. During any period when the Special Servicer is not LNR Partners, LLC or an affiliate of LNR Partners, LLC, the requirements and limitations contained in this paragraph shall be null and void, and the Trust Advisor shall have adequate and timely access to the policies and procedures of any successor special servicer as the Trust Advisor determines necessary to fulfill its duties under this Agreement.
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Section 10.6 Representations, Warranties and Covenants of the Trust Advisor.
(a) The Trust Advisor hereby represents and warrants to and covenants with each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date:
(i) the Trust Advisor is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of Delaware;
(ii) the Trust Advisor has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement; the Trust Advisor has duly and validly authorized the execution, delivery and performance by it of this Agreement and this Agreement has been duly executed and delivered by the Trust Advisor; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, evidences the valid and binding obligation of the Trust Advisor enforceable against the Trust Advisor in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, conservatorship, reorganization, insolvency, moratorium, receivership and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(iii) the execution and delivery of this Agreement by the Trust Advisor, the consummation by the Trust Advisor of the transactions contemplated hereby, and the fulfillment of or compliance by the Trust Advisor with the terms and conditions of this Agreement will not (A) result in a breach of any term or provision of its organizational documents or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the best of the Trust Advisor’s knowledge, threatened, against it, the outcome of which, in the Trust Advisor’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to perform any of its obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified as a foreign corporation or licensed in one or more states
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does not materially and adversely affect the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 10.6 shall survive the execution and delivery of this Agreement.
Any cause of action against the Trust Advisor arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Trust Advisor by any of the Depositor, the Trustee, the Master Servicer, the Special Servicer or the Certificate Administrator. The Trust Advisor shall give prompt notice to each other party to this Agreement and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) of the occurrence, or the failure to occur, of any event that, with notice, or the passage of time or both, would cause any representation or warranty in this Section to be untrue or inaccurate in any respect.
Section 10.7 Merger or Consolidation of the Trust Advisor. Any Person into which the Trust Advisor may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Trust Advisor shall be a party, or any Person succeeding to the business of the Trust Advisor, shall be the successor of the Trust Advisor hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that the successor or surviving Person is an Eligible Trust Advisor. If the conditions to the proviso in the foregoing sentence are not met, the Trustee may terminate the successor or surviving Person as Trust Advisor, such termination to be effected in the manner set forth in Section 10.12. The successor or surviving Person shall provide prompt written notice of the merger or consolidation to the Trustee, the Certificate Administrator and the 17g-5 Information Provider.
Notwithstanding the foregoing, if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Trust Advisor may not remain the Trust Advisor under this Agreement after (x) being merged or consolidated with or into any Prohibited Party, or (y) transferring all or substantially all of its assets to any Prohibited Party, unless (i) the Trust Advisor is the surviving entity of such merger, consolidation or transfer or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld (and if, within forty-five (45) days following the date of delivery of a notice by the Trust Advisor to the Depositor of any merger or similar transaction described in the preceding paragraph, the Depositor shall have failed to notify the Trust Advisor of the Depositor’s determination to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent).
Section 10.8 Resignation of Trust Advisor.
(a) Except as otherwise provided in Section 10.8(b), the Trust Advisor shall not resign from the obligations and duties hereby imposed on it unless it determines that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Trust Advisor shall be evidenced by an opinion of counsel to
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such effect delivered to the Master Servicer, the Certificate Administrator, the Depositor and the Trustee.
(b) The Trust Advisor (at its cost and expense and not at the expense of the Trust) shall have the right to (A) resign from its obligations and duties under this Agreement and recommend the replacement of the Trust Advisor (which shall be an Eligible Trust Advisor), provided that the Trust Advisor shall (i) pay, or reimburse the Certificate Administrator or the Trust, as applicable, for, all of the reasonable costs and expenses to be incurred by the Trust Advisor, the Certificate Administrator and/or the Trust, as applicable, in connection with obtaining any vote to replace the Trust Advisor (and such fees and expenses will not constitute Additional Trust Expenses), (ii) pay any amounts in the nature of Trust Advisor Fees, costs or expenses, to the extent such amounts are in excess of the amounts being paid to the Trust Advisor prior to its resignation, necessary to obtain or payable to a replacement Trust Advisor, (iii) except in the case of a recommended replacement that is an Eligible Trust Advisor (in which event no consent shall be required), obtain the consent (which shall be obtained prior to any solicitation of votes described below) of the Controlling Class Representative during any Subordinate Control Period and any Collective Consultation Period, which consent shall be deemed to have been granted if no objection is made within thirty (30) days following the Controlling Class Representative’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn and (iv) except in the case of a recommended replacement that is an Eligible Trust Advisor (in which event no vote seeking consent shall be conducted), obtain the requisite vote of Certificateholders as provided below or (B) resign from its obligations and duties under this Agreement without payment of any penalty, at any time, and no successor Trust Advisor shall be required to be appointed in connection with, or as a condition to, such resignation, when (i) the Certificate Balances of the Classes of Principal Balance Certificates senior to the Control Eligible Certificates have been reduced to zero or (ii) the aggregate Stated Principal Balance of the Mortgage Loans is equal to or less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans. If the Trust Advisor resigns pursuant to clause (A) of the preceding sentence, the Trust Advisor shall deliver to the Certificate Administrator, with a copy to the Trustee, the 17g-5 Information Provider and the Special Servicer, a written recommendation (along with relevant information justifying its recommendation) of a suggested replacement Trust Advisor, which recommendation shall include a ballot that identifies the proposed replacement and that allows the Holders of Principal Balance Certificates to approve or object to such recommendation and, further, shall clearly and conspicuously include on the face thereof the following legend (in all capital letters and at least 14 point font): “FAILURE TO AFFIRMATIVELY OBJECT TO THIS RECOMMENDATION WITHIN 180 DAYS OF THE DATE HEREOF SHALL BE DEEMED AN AFFIRMATIVE CONSENT TO REPLACE THE EXISTING TRUST ADVISOR WITH THE RECOMMENDED SUCCESSOR TRUST ADVISOR IDENTIFIED IN THIS RECOMMENDATION”. The Certificate Administrator shall post such written recommendation on the Certificate Administrator’s Website. Except in the case of a recommended replacement that is an Eligible Trust Advisor, the Trust Advisor’s recommendation of a successor Trust Advisor must be confirmed by an affirmative vote of Holders of Principal Balance Certificates evidencing at least 66-2/3% of the aggregate Voting Rights of all Principal Balance Certificates; provided that if any Holder of Principal Balance Certificates does not affirmatively object within one hundred and eighty (180) days of the date on which such written recommendation was posted on the Certificate Administrator’s Website, then such Holder shall be deemed to have
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consented to the replacement of the existing Trust Advisor with the recommended successor Trust Advisor. If so confirmed, the Trustee shall terminate all of the rights and obligations of the then existing Trust Advisor under this Agreement and appoint the successor Trust Advisor approved or deemed approved by the Certificateholders (provided that such successor trust advisor is an Eligible Trust Advisor). The terminated or resigning Trust Advisor’s rights to indemnification, payment of outstanding fees, reimbursement of expenses and other rights set forth in this Agreement shall survive its termination or resignation.
(c) Except with respect to any resignation pursuant to Section 10.8(b)(B), no resignation pursuant to this Section 10.8 shall become effective until a successor Trust Advisor appointed as provided in Section 10.12(d) shall have assumed the Trust Advisor’s responsibilities and obligations under this Agreement.
Section 10.9 Assignment or Delegation of Duties by Trust Advisor. Except as provided in Section 10.7, the Trust Advisor may not assign or delegate its rights and duties under this Agreement.
Section 10.10 Limitation on Liability of the Trust Advisor and Others.
(a) Neither the Trust Advisor nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Trust Advisor shall be under any liability to any other party to this Agreement, the Holders of the Certificates, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan for any action taken or for refraining from the taking of any action in good faith and using reasonable business judgment; provided that this provision shall not protect the Trust Advisor or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the information and reports delivered by or at the direction of the Master Servicer or any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer) respecting any matters arising hereunder. The Trust Advisor shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties under this Agreement.
(b) In addition, the Trust Advisor shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Advisor and conforming to the requirements of this Agreement. Neither the Trust Advisor, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Trust Advisor or such officer was negligent in ascertaining the pertinent facts. Neither the Trust Advisor, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement. The Trust Advisor
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shall be entitled to rely on reports and information supplied to it by the Master Servicer, the Special Servicer and the related Mortgagors and shall have no duty to investigate or confirm the accuracy of any such report or information.
(c) The Trust Advisor shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Trust Advisor from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Trust Advisor may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Trust Advisor may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Trust Advisor, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed or in good faith believed by it to be genuine.
(e) The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor shall be indemnified by the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee and the Certificate Administrator, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Depositor’s, the Master Servicer’s, the Special Servicer’s, the Custodian’s, the Trustee’s or the Certificate Administrator’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard by such Person of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Trust Advisor’s duties hereunder or by reason of negligent disregard of the Trust Advisor’s obligations and duties hereunder. The Trust Advisor shall promptly notify the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee and the Certificate Administrator, if a claim is made by a third party entitling the Trust Advisor to indemnification hereunder, whereupon the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator, in each case, to the extent the claim was made in connection with its willful misfeasance, bad faith or negligence, shall assume the defense of any such claim
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(with counsel reasonably satisfactory to the Trust Advisor). Any failure to so notify the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator shall not affect any rights the Trust Advisor may have to indemnification hereunder or otherwise, unless the interest of the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor hereunder. Any payment hereunder made by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be, pursuant to this paragraph to the Trust Advisor shall be paid from the Depositor’s, the Master Servicer’s, the Special Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, own funds, without reimbursement from the Trust therefor, except achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer or the Depositor shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that (x) the conduct of the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer or the Depositor, as the case may be, was not culpable or (y) such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 10.11 Indemnification; Third-Party Claims.
(a) The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans (subject to Section 6.11) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to this Agreement, other than any loss, liability or expense (i) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (ii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (iii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. The Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Trust Advisor, if a court of competent jurisdiction makes a final, non-appealable judgment that the Trust Advisor was found to have acted with willful misfeasance, bad faith or negligence.
(b) The Trust Advisor agrees to indemnify the Trust and each other party to this Agreement and any of their respective directors, officers, employees or agents or Controlling Persons, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures,
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legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trust or any such party may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Trust Advisor. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer shall immediately notify the Trust Advisor if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Trust Advisor shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trust Advisor shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Trust Advisor’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee. The Trust Advisor shall not be entitled to reimbursement from the Trust for any payment made by the Trust Advisor pursuant to this paragraph. Any expenses incurred or indemnification payments made by the Trust Advisor shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Trust Advisor was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 10.12 Termination of the Trust Advisor.
(a) A “Trust Advisor Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:
(i) any failure by the Trust Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of its representations or warranties under this Agreement, which failure or breach shall continue unremedied for a period of thirty (30) days after the date on which written notice of such failure or breach shall have been given to the Trust Advisor by the Trustee or the Certificate Administrator or to the Trust Advisor and the Certificate Administrator by the Holders of Certificates having greater than 25% of the aggregate Voting Rights of all then outstanding Certificates; provided that with respect to any such failure or breach which is not curable within such 30-day period, the Trust Advisor shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure or breach within the initial 30-day period and has provided the Trustee and the Certificate Administrator with an Officer’s Certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;
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(ii) any failure by the Trust Advisor to perform in accordance with the Trust Advisor Standard which failure shall continue unremedied for a period of thirty (30) days;
(iii) any failure by the Trust Advisor to be an Eligible Trust Advisor, which failure shall continue unremedied for a period of thirty (30) days;
(iv) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Trust Advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(v) the Trust Advisor shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Trust Advisor or of or relating to all or substantially all of its property;
(vi) the Trust Advisor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vii) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Trust Advisor shall fail to deliver any Regulation AB and any Exchange Act reporting items required to be delivered by it under Article XIII of this Agreement at the times required under such Article.
Upon receipt by the Certificate Administrator of notice of the occurrence of any Trust Advisor Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders by posting such notice on its internet website and by mail, unless the Certificate Administrator has received notice that it has been remedied. If a Trust Advisor Termination Event shall occur, then, and in each and every such case, so long as such Trust Advisor Termination Event shall not have been remedied, either (i) the Trustee may or (ii) upon the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights of all the Certificates, the Trustee shall, terminate all of the rights and obligations of the Trust Advisor under this Agreement, other than rights and obligations accrued prior to such termination, by notice in writing to the Trust Advisor. Notwithstanding anything herein to the contrary, the Depositor shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Trust Advisor Termination Event of which the Depositor becomes aware.
(b) Upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights of all the Certificates requesting a vote to terminate the
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existing Trust Advisor and to replace the existing Trust Advisor with a proposed successor Trust Advisor that is an Eligible Trust Advisor, (ii) payment by such Holders to the Trust, the Certificate Administrator and the Trust Advisor, as applicable, of the reasonable fees and expenses to be incurred by the Trust, the Certificate Administrator and the Trust Advisor, as applicable, in connection with such vote (which fees and expenses will not constitute Additional Trust Expenses) and (iii) obtaining the consent (which shall be obtained prior to any solicitation of votes below) of the Controlling Class Representative during any Subordinate Control Period and any Collective Consultation Period (such consent not to be unreasonably withheld, and such consent shall be deemed to have been granted if no objection is made within ten (10) Business Days following the Controlling Class Representative’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn), the Certificate Administrator shall promptly provide written notice of the requested vote described in clause (i) above to all Certificateholders by (A) posting such notice on its internet website and including in the next Distribution Date Statement a statement that such request was received, and (B) mailing it to their addresses appearing in the Certificate Register. Upon the written direction of Holders of Certificates evidencing more than 75% of all the Voting Rights of the Certificates, the Trustee shall terminate all of the rights (other than the right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder) and obligations of the Trust Advisor under this Agreement by notice in writing to the Trust Advisor; provided that if that written direction is not provided within one hundred and eighty (180) days of the initial request for a vote to terminate and replace the Trust Advisor, then that written direction will have no force and effect. In addition, the Holders of Certificates evidencing more than 75% of all the Voting Rights of the Certificates may direct the Trustee not to replace the terminated Trust Advisor); provided that if at any time there is no Trust Advisor acting in such capacity, the provisions of this Agreement relating to the rights (other than the right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder) and obligations of the Trust Advisor will have no force and effect; and provided, further, that, if the Holders of at least 25% of the Voting Rights of the Certificates subsequently request a vote to reinstate the role of Trust Advisor and appoint a new Trust Advisor under this Agreement, and the Holders of at least 75% of the Voting Rights of the Certificates vote in favor of such reinstatement and appointment, then a new Trust Advisor will be appointed and references to Trust Advisor in this Agreement will again be applicable. The provisions set forth in the foregoing sentences of this Section 10.12(b) shall be binding upon and inure solely to the benefit of the Certificateholders and the Trustee as between each other. The Trust Advisor shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions; provided that this sentence shall not affect the Trust Advisor’s right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder. As between the Trust Advisor, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Trust Advisor.
(c) If there are no Classes of Principal Balance Certificates outstanding other than the Control Eligible Certificates, then the Holders of Certificates representing greater than 50% of the junior-most Class of such Classes of Certificates outstanding may elect to terminate the Trust Advisor without payment of any termination fee by written notice delivered to the Depositor and the Trust Advisor. Upon its receipt of notice from such Holders of their election to so terminate the Trust Advisor, the Trustee shall terminate all of the rights and obligations of
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the Trust Advisor under this Agreement by notice in writing to the Trust Advisor. If the Trust Advisor is terminated pursuant to this Section 10.12(c), then no replacement Trust Advisor will be appointed.
(d) On or after the receipt by the Trust Advisor of written notice of termination pursuant to Section 10.12(a), Section 10.12(b) or Section 10.12(c), or the effectiveness of any resignation by the Trust Advisor pursuant to Section 10.8, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Trust Advisor shall execute any and all documents and other instruments, and do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than fifteen (15) Business Days (or such longer period of time as may be reasonably necessary to find a willing successor trust advisor if no willing successor trust advisor can be identified in such fifteen (15) Business Day period) after (1) the Trust Advisor resigns pursuant to Section 10.8 or (2) the Trustee delivers such written notice of termination to the Trust Advisor pursuant to Section 10.12(a) or Section 10.12(b), the Trustee shall appoint a successor Trust Advisor (to the extent a willing successor trust advisor can be identified) that is an Eligible Trust Advisor (which successor Trust Advisor may be an Affiliate of the Trustee) and shall be the recommended or proposed Trust Advisor in the case of a resignation pursuant to Section 10.8(b) or a termination pursuant to Section 10.12(b). During any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have the right to consent, such consent not to be unreasonably withheld, to any replacement for a Trust Advisor terminated pursuant to Section 10.12(a) (except that such consent will be deemed to have been granted if no objection is made within ten (10) Business Days following the Controlling Class Representative’s receipt of the request for consent and, if granted, such consent cannot thereafter be revoked or withdrawn). If the Trustee is the successor Master Servicer or successor Special Servicer, neither the Trustee nor any of its Affiliates shall be the successor Trust Advisor. If the termination of the Trust Advisor is pursuant to Section 10.12(b), and if the Holders of Certificates representing more than 75% of the aggregate Voting Rights of the Certificates so direct, then the Trustee shall not replace the terminated Trust Advisor (subject to the provisos to the third (3rd) sentence of Section 10.12(b)). Except as contemplated by Section 10.12(b), and except for any consent rights of the Controlling Class Representative expressly set forth in this Article X, the appointment of the successor Trust Advisor shall not be subject to the vote, consent or approval of the Holder of any Class of Certificates. The Trust Advisor shall not at any time be the Depositor, the Master Servicer, the Special Servicer, a Seller or an Affiliate of any of them. If any of such entities becomes the Trust Advisor, including by means of an affiliation arising after the date hereof, the Trust Advisor shall immediately resign, and the Trustee shall appoint a successor Trust Advisor subject to and in accordance with this Section 10.12(d).
Upon any resignation or termination of the Trust Advisor and, if applicable, appointment of a successor Trust Advisor, the Trustee shall, as soon as possible, give written notice thereof to the Special Servicer, the Master Servicer, the Certificate Administrator (who shall promptly post such notice to the Certificateholder’s Website pursuant to Section 5.4), the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Depositor, the Certificateholders and, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative. If the Trust Advisor resigns or is terminated for any reason, all of its rights and
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obligations under this Agreement shall terminate, other than any rights or obligations that accrued prior to the date of such termination (including the right to receive all fees, expenses and indemnities accrued and owing to it under this Agreement which shall be payable in accordance with the priorities and subject to the limitations set forth herein including, without limitation, Section 6.11).
Section 10.13 Rights of the Holders of a Serviced B Note and Serviced Companion Loan. With respect to each A/B Whole Loan (if any) and Loan Pair (if any), the holder of any related Serviced B Note and the holder of any related Serviced Companion Loan shall have such consent rights or consultation rights, if any, during the specified time periods, as are set forth in the related Intercreditor Agreement.
Notwithstanding the foregoing, if the Master Servicer or Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that immediate action is necessary to protect the interest of the Certificateholders and the holder of any related Serviced B Note or Serviced Companion Loan (as a collective whole), then the Master Servicer or Special Servicer, as applicable may take any such action without waiting for the response of the holder of the Serviced B Note or holder of the Serviced Companion Loan provided for in the related Intercreditor Agreement.
In addition, with respect to any A/B Whole Loan or Loan Pair, to the extent provided for in the related Intercreditor Agreement, the holder of a Serviced B Note or holder of a Serviced Companion Loan may direct the Master Servicer or Special Servicer, as applicable, to take, or to refrain from taking, such actions as such holder may deem advisable or as to which provision is otherwise made herein. Upon reasonable request, to the extent provided for in the related Intercreditor Agreement, the Master Servicer or Special Servicer, as applicable, shall, with respect to any A/B Whole Loan or Loan Pair, provide the holder of a Serviced B Note or holder of a Serviced Companion Loan with any information in the Master Servicer’s or Special Servicer’s, as applicable, possession with respect to such matters, including its reasons for determining to take a proposed action.
If the holder of a Serviced B Note or holder of a Serviced Companion Loan (in each case for so long as it is the related Loan-Specific Directing Holder) shall direct the Master Servicer or the Special Servicer to take any action (other than those provided for in the related Intercreditor Agreement or in this Agreement), the Master Servicer or the Special Servicer shall be entitled to receive reimbursement from collections on and other proceeds of such Serviced B Note or Serviced Companion Loan for (i) its reasonable out-of-pocket expenses incurred in taking such action and (ii) to the extent that such action constitutes an extraordinary action not in the ordinary course of administering and servicing such mortgage loan, other reasonable costs incurred by the Master Servicer or the Special Servicer in taking such action. The Master Servicer or the Special Servicer shall notify such holder, prior to taking the related action, if the Master Servicer or the Special Servicer anticipates that it will seek reimbursement therefor under the preceding sentence, and of the estimated amount of such reimbursement, and shall further notify such holder if it intends to obtain actual reimbursement in excess of the estimated amount.
Notwithstanding anything herein to the contrary, no advice, direction or objection from the holder of a Serviced B Note or holder of a Serviced Companion Loan, as contemplated
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by this Agreement, may (and the Master Servicer and Special Servicer, as applicable, shall ignore and act without regard to any such advice, direction or objection that the Master Servicer or Special Servicer, as applicable, has determined, in accordance with the Servicing Standard, will) (i) require or cause the Master Servicer or the Special Servicer to violate applicable law, the terms of any Mortgage Loan, any provision of this Agreement or the REMIC Provisions, including the Master Servicer’s or the Special Servicer’s obligation to act in accordance with the Servicing Standard, (ii) result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, (iii) expose the Trust, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, or any of their respective Affiliates, officers, directors, employees or agents, to any material claim, suit or liability, or (iv) materially expand the scope of the Master Servicer’s or Special Servicer’s responsibilities under this Agreement.
With respect to any Serviced B Note or Serviced Companion Loan, the Master Servicer (if the Serviced B Note or Serviced Companion Loan has not become a Specially Serviced Mortgage Loan and the related Mortgaged Property has not become an REO Property) or the Special Servicer (if the Serviced B Note or Serviced Companion Loan has become a Specially Serviced Mortgage Loan or the related Mortgaged Property has become an REO Property) shall prepare and make available (or to the extent required pursuant to the terms of the related Intercreditor Agreement, deliver) to the holder of such Serviced B Note or Serviced Companion Loan, the related Loan-Specific Directing Holder and the related Non-Directing Holder (or its designee or representative) all notices, reports, statements and communications to be delivered by the holder of the related Mortgage Loan under the Intercreditor Agreement, and shall perform all duties and obligations to be performed by a servicer and perform all servicing-related duties and obligations to be performed by the holder of the related Mortgage Loan pursuant to the related Intercreditor Agreement.
If the holder of any Serviced Companion Loan notifies the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer of any changes in the name and contact information of the holder of such Serviced Companion Loan, the party receiving such information shall promptly notify the other such parties thereof. The Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer may each conclusively rely on the information so provided to it by any other such party regarding identity and/or contact information of the holder of any Serviced Companion Loan, and none of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer, as applicable, shall have any liability for notices or reports not sent to the correct holder of any Serviced Companion Loan or any obligation to obtain the consent of or consult with the correct holder of any Serviced Companion Loan to the extent any other such party or the holder of such Serviced Companion Loan has not provided updated or correct information regarding the holder of such Serviced Companion Loan or has not provided the most recent identity and/or contact information regarding the holder of such Serviced Companion Loan to the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer, as applicable.
Section 10.14 Rights of Non-Directing Holders. With respect to each Loan Pair (as and to the extent provided for under the related Intercreditor Agreement), the Master Servicer or the Special Servicer, as applicable, shall:
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(a) consult with the related Non-Directing Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Non-Directing Holder (or its designee or representative) requests consultation with respect to any “major decision” or “major action” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Pair, as applicable, and to consider alternative actions recommended by such Non-Directing Holder (or its designee or representative); provided, that, subject to the related Intercreditor Agreement, if the related Non-Directing Holder fails to respond within ten (10) Business Days from the delivery to the related Non-Directing Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, or any other communication relating to a proposed action, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Non-Directing Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Non-Directing Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” or “major action” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the holder of the related Serviced Companion Loan. Unless otherwise specified in the related Intercreditor Agreement, neither the Master Servicer nor the Special Servicer shall be obligated at any time to follow or take any alternative actions recommended by the Non-Directing Holder; and
(b) in addition to the foregoing non-binding consultation rights, as and to the extent provided for in the related Intercreditor Agreement, the Non-Directing Holder shall have the right to annual conference calls with the Master Servicer or the Special Servicer upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related A/B Whole Loan or Loan Pair, as applicable, are discussed.
ARTICLE
XI
PURCHASE AND TERMINATION OF THE TRUST
Section 11.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans.
(a) The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in
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accordance with Section 11.1(b) or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) below; provided that in no event shall the Trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.
(b) If on any date the Aggregate Stated Principal Balance of the Mortgage Loans is less than or equal to 1.0% of the initial Aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, the Master Servicer shall give the Trustee, the Custodian, the Certificate Administrator and the 17g-5 Information Provider notice of such date. The Certificate Administrator shall promptly forward such notice to the Trustee, the Custodian, the Depositor, the Holders of a majority of the most subordinate Class of REMIC III Regular Certificates, the Special Servicer, the Master Servicer and the Class R Certificates. Subject to and in accordance with the consent rights set forth in Section 10.3 of this Agreement, the Holders of the most subordinate Class of REMIC III Regular Certificates then outstanding, the Special Servicer, the Master Servicer and the Holder of Certificates representing a majority interest in the Class R Certificates, in such priority (and in the case of the Class R Certificateholders, a majority of the Class R Certificateholders), may purchase, in whole only, the Mortgage Loans (in the case of any A/B Whole Loan or Loan Pair, subject to the rights of the holder of the related Serviced B Note or Serviced Companion Loan provided for in the related Intercreditor Agreement) and any other property, if any (including, without limitation, any REO property), remaining in the Trust. If any party desires to exercise such option, it will notify the Certificate Administrator who shall notify any party with a prior right to exercise such option. If any party that has been provided notice by the Certificate Administrator (excluding the Depositor) notifies the Certificate Administrator within ten (10) Business Days after receiving notice of the proposed purchase that it wishes to purchase the assets of the Trust, then such party (or, if more than one of such parties notifies the Certificate Administrator that it wishes to purchase the assets of the Trust, the party with the first right to purchase the assets of the Trust) may purchase the assets of the Trust in accordance with this Agreement. Upon the Certificate Administrator’s receipt of the Termination Price set forth below, the Certificate Administrator shall promptly notify the Trustee and the Custodian in writing of its receipt thereof, and the Trustee shall thereupon direct the Custodian promptly to release or cause to be released to the Master Servicer for the benefit of the Person(s) exercising the option set forth in this Section 11.1(b) the Mortgage Files pertaining to the Mortgage Loans. The “Termination Price” shall equal 100% of the aggregate Unpaid Principal Balances of the Mortgage Loans (other than REO Mortgage Loans and Mortgage Loans as to which a Final Recovery Determination has been made) on the day of such purchase plus accrued and unpaid interest thereon at the applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee Rate if the Master Servicer is the purchaser), to the Due Date for each Mortgage Loan ending in the Collection Period with respect to which such purchase occurs, plus unreimbursed Advances and interest on such unreimbursed Advances at the Advance Rate, and the fair market value of any REO Properties and other property remaining in REMIC I. Any person or entity making the purchase shall also be responsible for reimbursing the parties to this Agreement for all reasonable out-of-pocket costs and expenses incurred by the parties in connection with such purchase. The Trustee shall consult with the Underwriters and the Initial Purchasers or their respective successors, as advisers, in order for the Trustee to determine whether the fair market value of the property constituting the Trust has been offered;
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provided that, if an Affiliate of any Underwriter or Initial Purchaser is exercising its right to purchase the Trust assets, the Trustee shall consult with the Special Servicer in order for the Trustee to determine whether the fair market value of the property constituting the Trust has been offered, provided that the Special Servicer is not an Affiliate of any Holder of Class R Certificates, the Master Servicer or the Trustee (the fees and expenses of such determination which shall be paid for by the buyer of the property constituting the Trust). If the Trustee consults with any Underwriter or Initial Purchaser or their respective successors, or with the Special Servicer, in each case pursuant to the immediately preceding sentence, the Trustee shall be entitled to rely conclusively on any written confirmation given by such party as to whether the fair market value of the property constituting the Trust has been offered. As a condition to the purchase of the Trust assets pursuant to this Section 11.1(b), the Person(s) exercising the option must deliver to the Trustee an Opinion of Counsel, which shall be at the expense of such Person(s) stating that such termination will be a “qualified liquidation” under section 860F(a)(4) of the Code. Such purchase shall be made in accordance with Section 11.3. Notwithstanding the foregoing, if the Trustee is required to determine whether an offer represents the fair market value of the property constituting the Trust, unless it is otherwise required to consult with any Underwriter or Initial Purchaser or their respective successors, or with the Special Servicer, in each case pursuant to this Section, the Trustee shall be permitted to designate an independent third party expert (the fees and expenses of which shall be paid for by the buyer of the property constituting the Trust) in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing commercial real estate assets similar to the property constituting the Trust, to determine whether the fair market value of the property constituting the Trust has been offered. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination.
(c) [Reserved]
(d) Following the date on which the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class X-A, Class X-B, Class X-D Class B, Class C and Class D Certificates are retired, the Sole Certificateholder shall have the right to exchange all of its Certificates (other than the Class V and Class R Certificates) for all of the Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated by Section 11.1(a)(iii) by giving written notice to all the parties hereto no later than sixty (60) days prior to the anticipated date of exchange. If the Sole Certificateholder elects to exchange all of its Certificates (other than the Class V and Class R Certificates) for all of the Mortgage Loans and the Trust Fund’s portion of each REO Property remaining in the Trust (and where applicable, subject to the terms of the related Intercreditor Agreement) in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall (i) deposit in the Collection Account an amount in immediately available funds equal to all amounts due and owing to the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee, the Trust Advisor and the Certificate Administrator hereunder through the date of the liquidation of the Trust Fund that may be withdrawn from the Collection Account pursuant to Section 5.2 or that may be withdrawn from the Distribution Account pursuant to Section 5.3, but only to the extent that such amounts are not already on deposit in the Collection Account and (ii) pay to the Master Servicer an amount equal to (x) the product of (a) the Advance Rate, (b) the Aggregate Certificate Balances of the then-outstanding Principal Balance Certificates as of the date of such exchange and (c) three, divided by (y) 360.
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In addition, the Master Servicer shall transfer all amounts required to be transferred to the Excess Interest Sub-account on the Master Servicer Remittance Date related to such Distribution Date in which the final distribution on the Certificates is to occur from the Collection Account. Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Class V and Class R Certificates) on the final Distribution Date, the Certificate Administrator shall upon receipt of a Request for Release from the Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and any REO Properties remaining in the Trust Fund, and the Trust Fund shall be liquidated in accordance with Section 11.2. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the REMIC I for an amount equal to the remaining Certificate Balance of the Principal Balance Certificates, plus accrued, unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of such Certificates and REMIC I Interests.
(e) Upon the termination of the Trust, any Class V Specific Grantor Trust Assets held by the Grantor Trust shall be distributed to the Class V Certificateholders on a pro rata basis.
(f) Upon the sale of the A Note relating to an A/B Whole Loan by the Trust or the payment in full of such A Note, the related Serviced B Note shall no longer be subject to this Agreement and shall no longer be serviced by the Master Servicer or the Special Servicer.
Section 11.2 Procedure Upon Termination of Trust.
(a) Notice of any termination pursuant to the provisions of Section 11.1, specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Certificate Administrator to the Trustee, the 17g-5 Information Provider, the Holders of the Class V and Class R Certificates and the REMIC III Regular Certificates mailed no later than ten (10) days prior to the date of such termination. Such notice shall specify (A) the Distribution Date upon which final distribution on the Class V and Class R Certificates and the REMIC III Regular Certificates will be made, and upon presentation and surrender of such Certificates at the office or agency of the Certificate Registrar therein specified, and (B) that the Record Date otherwise applicable to such Distribution Date is not applicable, distribution being made only upon presentation and surrender of such Certificates at the office or agency of the Certificate Registrar therein specified. The Certificate Administrator shall give such notice to the Depositor, the Trustee and the Certificate Registrar at the time such notice is given to Holders of such Certificates. Upon any such termination, the duties of the Certificate Registrar with respect to the Class V and Class R Certificates and the REMIC III Regular Certificates shall terminate and the Trustee shall terminate, or request the Master Servicer and the Certificate Administrator to terminate, the Collection Account and the Distribution Account and any other account or fund maintained with respect to the Certificates, subject to the Certificate Administrator’s obligation hereunder to hold all amounts payable to the Holders of the Class V and Class R Certificates and the REMIC III Regular Certificates in trust without interest pending such payment.
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(b) If all of the Holders do not surrender their certificates evidencing the Class V and Class R Certificates and the REMIC III Regular Certificates for cancellation within three (3) months after the time specified in the above-mentioned written notice, then the Certificate Registrar shall give a second (2nd) written notice to the remaining Holders of such Certificates to surrender their Certificates evidencing such Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second (2nd) notice any such Certificates shall not have been surrendered for cancellation, the Certificate Registrar may take appropriate steps to contact the remaining Holders of such Certificates concerning surrender of such Certificates, and the cost thereof shall be paid out of the amounts distributable to such Holders. If within two (2) years after the second (2nd) notice any such Certificates shall not have been surrendered for cancellation, the Certificate Administrator shall, subject to applicable state law relating to escheatment, hold all amounts distributable to such Holders for the benefit of such Holders. No interest shall accrue on any amount held by the Trustee and not distributed to a Holder of such Certificates due to such Certificateholder’s failure to surrender its Certificate(s) for payment of the final distribution thereon in accordance with this Section. Any money held by the Certificate Administrator pending distribution under this Section 11.2 after ninety (90) days after the adoption of a plan of complete liquidation shall be deemed for tax purposes to have been distributed from the REMIC Pools and shall be beneficially owned by the related Holder.
Section 11.3 Additional Trust Termination Requirements.
(a) The Trust and each REMIC Pool shall be terminated in accordance with the following additional requirements, unless at the request of the Master Servicer or the Class R Certificateholders, as the case may be, the Trustee seeks, and the Certificate Administrator subsequently receives an Opinion of Counsel (at the expense of the Master Servicer or the Class R Certificateholders, as the case may be), addressed to the Depositor, the Trustee and the Certificate Administrator to the effect that the failure of the Trust to comply with the requirements of this Section 11.3 will not (i) result in the imposition of taxes on “prohibited transactions” on any REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within eighty-nine (89) days prior to the time of the making of the final payment on the REMIC III Regular Certificates and the Class V and Class R Certificates, the Master Servicer shall prepare and the Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall adopt a plan of complete liquidation of each REMIC Pool, meeting the requirements of a qualified liquidation under the REMIC Provisions, which plan need not be in any special form and the date of which, in general, shall be the date of the notice specified in Section 11.2(a) and shall be specified in a statement attached to the federal income tax return of each applicable REMIC Pool;
(ii) At or after the date of adoption of such a plan of complete liquidation and at or prior to the time of making of the final payment on the REMIC III Regular Certificates, the Trustee shall sell all of the assets of the Trust for cash at the Termination Price; provided that if the Holders of the Class R Certificates are purchasing the assets of the Trust or REMIC I, the amount to be paid by such Holders may be paid net of the
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amount to be paid to such Holders as final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the REMIC III Regular Interests, the Certificate Administrator shall distribute or credit, or cause to be distributed or credited, (A) to the Holders of the Class R Certificates all assets of REMIC I remaining after such final payment of the REMIC I Regular Interests, (B) to the Holders of the Class R Certificates all assets of REMIC II remaining after such final payment of the REMIC II Regular Interests and (C) to the Holders of the Class R Certificates all remaining assets of REMIC III (in each case other than cash retained to meet claims); and upon making of the final payment to all Class R Certificates of all remaining assets of each REMIC Pool, and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular Interests, REMIC II Regular Interests or REMIC III Regular Interests, or the final distribution or credit to the Holders of the Class R Certificates, respectively, be made after the 89th day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R Certificates, the Holders thereof hereby (i) authorize the Trustee to take such action as may be necessary to adopt a plan of complete liquidation of each REMIC Pool, and (ii) agree to take such other action as may be necessary to adopt a plan of complete liquidation of the Trust upon the written request of the Depositor, which authorization shall be binding upon all successor Class R Certificateholders.
ARTICLE
XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool and the Grantor Trust, as applicable.
Section 12.1 REMIC Administration.
(a) An election will be made by the Certificate Administrator on behalf of the Trustee to treat the segregated pool of assets consisting of the Mortgage Loans (other than Excess Interest payable thereon), such amounts with respect thereto as shall from time to time be held in the Collection Account, the Reserve Accounts and the Distribution Account (exclusive of the Excess Interest Sub-account), the Insurance Policies and any related amounts in the REO Account and, to the extent of the Trust’s interest therein, any related REO Properties as a REMIC under the Code (such REMIC being herein designated as “REMIC I”), other than any portion of the foregoing amounts allocable to a Serviced B Note or Serviced Companion Loan. Such elections will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC I Interests are issued. For purposes of such election, the REMIC I Regular Interests shall be designated as the “regular interests” in REMIC I, and the REMIC I Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC I.
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An election will be made by the Certificate Administrator to treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC under the Code (such REMIC being herein designated as “REMIC II”). Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC II Interests are issued. For the purposes of such election, the REMIC II Regular Interests shall be designated as the “regular interests” in REMIC II, and the REMIC II Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC II.
An election will be made by the Certificate Administrator to treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC under the Code (such REMIC being herein designated as “REMIC III”). Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC III Interests are issued. For purposes of such election, the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates and the Class X REMIC III Regular Interests shall be designated as the “regular interests” in REMIC III, and the REMIC III Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC III.
The Trustee and the Certificate Administrator shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any of the REMIC Pools other than the REMIC I Interests, the REMIC II Interests and the REMIC III Interests.
Any Threshold Event Collateral posted by a Loan-Specific Directing Holder pursuant to the related Intercreditor Agreement shall be held by the Master Servicer in an outside reserve fund which shall not be an asset of any REMIC, and the Loan-Specific Directing Holder that posted such Threshold Event Collateral shall be the owner of such outside reserve fund, all within the meaning of Treasury Regulation Section 1.860G-2(h). Any such Threshold Event Collateral shall be applied in the same manner as collections on the related Loan Pair or A/B Whole Loan, as applicable, as and to the extent provided for in the related Intercreditor Agreement, including without limitation by means of the Trustee, the Master Servicer or the Special Servicer drawing on any letter of credit delivered as Threshold Event Collateral as and to the extent provided for in the related Intercreditor Agreement.
(b) The Closing Date is hereby designated as the “Startup Day” of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Certificate Administrator shall pay all routine tax related expenses (not including any taxes, however denominated, including any additions to tax, penalties and interest) of each REMIC Pool, excluding any professional fees or extraordinary expenses related to audits or any administrative or judicial proceedings with respect to each REMIC Pool that involve the Internal Revenue Service or state tax authorities.
(d) The Certificate Administrator shall cause to be prepared, signed, and timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an application for a taxpayer identification number for such REMIC Pool on Internal Revenue Service Form SS-4.
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The Certificate Administrator, upon receipt from the Internal Revenue Service of the “Notice of Taxpayer Identification Number Assigned, shall promptly forward a copy of such notice to the Depositor and the Master Servicer. The Certificate Administrator shall prepare and file Form 8811 on behalf of each REMIC Pool and shall designate an appropriate Person to respond to inquiries by or on behalf of Certificateholders for original issue discount and related information in accordance with applicable provisions of the Code.
(e) The Certificate Administrator shall prepare and file, or cause to be prepared and filed, all of each REMIC Pool’s federal and state income or franchise tax and information returns as such REMIC Pool’s direct representative, and the Certificate Administrator (or, if necessary, the Trustee) shall sign such returns; the expenses of preparing and filing such returns shall be borne by the Certificate Administrator, except that if additional state tax returns are required to be filed in more than three (3) states, the Certificate Administrator shall be entitled, with respect to any such additional filings, to (i) be paid a reasonable fee and (ii) receive its reasonable costs and expenses, both as amounts reimbursable pursuant to Section 5.2(a)(I)(vi) hereof. Each of the Depositor, the Master Servicer and the Special Servicer shall provide on a timely basis to the Certificate Administrator or its designee such information with respect to the Trust or any REMIC Pool as is in its possession, which the Depositor, the Master Servicer or the Special Servicer, as the case may be, has received or prepared by virtue of its role as Depositor, Master Servicer or the Special Servicer, as the case may be, hereunder and reasonably requested by the Certificate Administrator to enable it to perform its obligations under this subsection, and the Certificate Administrator shall be entitled to conclusively rely on such information in the performance of its obligations hereunder. The Depositor shall indemnify the Trust, the Trustee and the Certificate Administrator for any liability or assessment against any of them or cost or expense (including attorneys’ fees) incurred by them resulting from any error in any of such tax or information returns resulting from errors in the information provided by the Depositor or caused by the negligence, willful misconduct or bad faith of the Depositor in providing any information for which the Depositor is responsible for preparing. The Master Servicer and the Special Servicer shall indemnify the Trustee, the Certificate Administrator and the Depositor for any liability or assessment against the Trustee, the Depositor, the Certificate Administrator or any REMIC Pool and any expenses incurred in connection with such liability or assessment (including attorneys’ fees) resulting from any error in any of such tax or information returns resulting from errors in the information provided by the Master Servicer or the Special Servicer, as the case may be, or caused by the negligence, willful misconduct or bad faith of the Master Servicer or the Special Servicer, as the case may be. The Certificate Administrator shall indemnify the Master Servicer, the Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the Depositor and any REMIC Pool resulting from any error in any of such tax or information returns resulting from errors in the preparation of such returns caused by the negligence, willful misconduct or bad faith of the Certificate Administrator. Each indemnified party shall immediately notify the indemnifying party or parties of the existence of a claim for indemnification under this Section 12.1(e), and provide the indemnifying party or parties, at the expense of such indemnifying party or parties, an opportunity to contest the tax or assessment or expense giving rise to such claim, provided that the failure to give such notification shall not affect the indemnification rights in favor of any REMIC Pool under this Section 12.1(e). Any
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such indemnification shall survive the resignation or termination of the Master Servicer, the Certificate Administrator or the Special Servicer, or the termination of this Agreement.
(f) The Certificate Administrator shall perform on behalf of each REMIC Pool all reporting and other tax compliance duties that are the responsibility of such REMIC Pool under the Code, the REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority. Among its other duties, the Certificate Administrator shall provide (i) to the Internal Revenue Service or other Persons (including, but not limited to, the Transferor of a Class R Certificate, a Disqualified Organization or an agent that has acquired such Class R Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class R Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or the REMIC Provisions.
(g) The Certificate Administrator shall forward to the Depositor copies of quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099 information returns and such other information within the control of the Certificate Administrator as the Depositor may reasonably request in writing. Moreover, the Certificate Administrator shall forward to each Certificateholder such forms and furnish such information within its control as are required by the Code to be furnished to them, shall prepare and file with the appropriate state authorities as may to the actual knowledge of a Responsible Officer of the Certificate Administrator be required by applicable law and shall prepare and disseminate to Certificateholders Internal Revenue Service Forms 1099 (or otherwise furnish information within the control of the Certificate Administrator) to the extent required by applicable law. The Certificate Administrator will make available to any Certificateholder any tax related information required to be made available to Certificateholders pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in the Class R Certificates (or of the greatest percentage of the Class R Certificates if no Holder holds more than 50% thereof) shall be the Tax Matters Person for each of REMIC I, REMIC II and REMIC III. The duties of the Tax Matters Person for each of the REMIC Pools are hereby delegated to the Certificate Administrator, and each Class R Certificateholder, by acceptance of its Class R Certificate, agrees, on behalf of itself and all successor holders of such Class R Certificate, to such delegation to the Certificate Administrator as their agent and attorney in fact. If the Code or applicable regulations prohibits the Certificate Administrator (or, if necessary, the Trustee) from signing any applicable Internal Revenue Service, court or other administrative documents or from acting as Tax Matters Person (as an agent or otherwise), the Certificate Administrator shall take whatever action is necessary for the signing of such documents and designation of a Tax Matters Person, including the designation of the Holder of more than 50% of the Percentage Interests in the Class R Certificates (or of the greatest percentage of the Class R Certificates if no Holder holds more than 50% thereof). The Certificate Administrator shall not be required to expend or risk its own funds or otherwise incur any other financial liability in the performance of its duties hereunder or in the exercise of any of its rights or powers (except to the extent of the ordinary expenses of performing its duties under this Agreement), if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(i) The Trustee, the Certificate Administrator, the Custodian, the Holders of the Class R Certificates, the Master Servicer and the Special Servicer shall each exercise reasonable care, to the extent within its control, and with respect to each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer, within the scope of its express duties, and shall each act in accordance with this Agreement and the REMIC Provisions in order to create and maintain the status of each REMIC Pool as a REMIC for so long as any REMIC III Regular Certificates are outstanding and the Grantor Trust as a grantor trust for so long as any Class V Certificates are outstanding.
(j) The Trustee, the Certificate Administrator, the Custodian, the Master Servicer, the Special Servicer and the Holders of Class R Certificates shall not take any action or fail to take any action or cause any REMIC Pool to take any action or fail to take any action if any of such Persons knows or could, upon the exercise of reasonable diligence, know, that, under the REMIC Provisions such action or failure, as the case may be, could (i) endanger the status of any REMIC Pool as a REMIC (ii) result in the imposition of a tax upon any REMIC Pool (including but not limited to the tax on “prohibited transactions” as defined in Code Section 860F(a)(2)) or (iii) endanger the status of the Grantor Trust as a grantor trust unless the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such a tax. Any action required under this Section which would result in an unusual or unexpected expense shall be undertaken at the expense of the party requiring the Trustee, the Certificate Administrator, the Custodian or the Holders of the Class R Certificates to undertake such action.
(k) If any tax is imposed on any REMIC Pool, including, without limitation, “prohibited transactions” taxes as defined in Section 860F(a)(2) of the Code, any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, any taxes on contributions to any REMIC Pool after the Startup Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code or any applicable provisions of state or local tax laws (other than any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e)), then such tax, together with all incidental costs and expenses (including, without limitation, penalties and reasonable attorneys’ fees), shall be charged to and paid by: (i) the Certificate Administrator, if such tax arises out of or results from a breach of any of its obligations under this Agreement; (ii) the Special Servicer, if such tax arises out of or results from a breach by the Special Servicer of any of its obligations under this Agreement; (iii) the Master Servicer, if such tax arises out of or results from a breach by the Master Servicer of any of its obligations under this Agreement; and (iv) the Trust in all other instances. Any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to and paid by the Trust from the net income generated on the related REO Property. Any such amounts payable by the Trust in respect of taxes shall be paid by the Certificate Administrator out of amounts on deposit in the Distribution Account.
(l) The Certificate Administrator and, to the extent that books and records are maintained by the Master Servicer or the Special Servicer in the normal course of its business, the Master Servicer and the Special Servicer shall, for federal income tax purposes, maintain books and records with respect to each REMIC Pool on a calendar year and on an accrual basis.
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The books and records must be sufficient concerning the nature and amount of each REMIC Pool’s investments to show that such REMIC Pool has complied with the REMIC Provisions.
(m) None of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall enter into any arrangement by which any REMIC Pool will receive a fee or other compensation for services.
(n) In order to enable the Certificate Administrator to perform its duties as set forth herein, the Depositor shall provide, or cause to be provided, to the Certificate Administrator within ten (10) days after the Closing Date all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes on the valuations and offering prices of the Certificates, including, without limitation, the yield, prepayment assumption, issue prices and projected cash flows of the Certificates, as applicable, and the projected cash flows of the Mortgage Loans. Thereafter, the Depositor shall provide to the Certificate Administrator or its designee, promptly upon request therefor, any such additional information or data within the Depositor’s possession or knowledge that the Certificate Administrator may, from time to time, reasonably request in order to enable the Certificate Administrator to perform its duties as set forth herein. The Certificate Administrator is hereby directed to use any and all such information or data provided by the Depositor in the preparation of all federal and state income or franchise tax and information returns and reports for each REMIC Pool to Certificateholders as required herein. The Depositor hereby indemnifies the Trustee, the Certificate Administrator and each REMIC Pool for any losses, liabilities, damages, claims, expenses (including attorneys’ fees) or assessments against the Trustee, the Certificate Administrator and each REMIC Pool arising from any errors or miscalculations of the Certificate Administrator pursuant to this Section that result from any failure of the Depositor to provide, or to cause to be provided, accurate information or data to the Certificate Administrator (but not resulting from the methodology employed by the Certificate Administrator) on a timely basis and such indemnification shall survive the termination of this Agreement and the termination or resignation of the Certificate Administrator.
The Certificate Administrator agrees that all such information or data so obtained by it are to be regarded as confidential information and agrees that it shall use its reasonable best efforts to retain in confidence, and shall ensure that its officers, employees and representatives retain in confidence, and shall not disclose, without the prior written consent of the Depositor, any or all of such information or data, or make any use whatsoever (other than for the purposes contemplated by this Agreement) of any such information or data without the prior written consent of the Depositor, unless such information is generally available to the public (other than as a result of a breach of this Section 12.1(n)) or is required by law or applicable regulations to be disclosed or is disclosed (i) to independent auditors and accountants, counsel and other professional advisers of the Certificate Administrator and its parent, or (ii) in connection with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each REMIC Pool as “qualified mortgages” as defined
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in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the “latest possible maturity date” for each Class of the Class A-1, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates, for each Class X REMIC III Regular Interest, for each REMIC I Regular Interest and for each REMIC II Regular Interest is the Rated Final Distribution Date.
Section 12.2 Prohibited Transactions and Activities. None of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer shall permit the sale, disposition or substitution of any of the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the termination of any REMIC Pool in a “qualified liquidation” as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase or substitution contemplated by Article II hereof), nor acquire any assets for the Trust, except as contemplated by Article II hereof, nor sell or dispose of any investments in the Collection Account or Distribution Account for gain, nor accept any contributions to any REMIC Pool (other than a cash contribution during the 3-month period beginning on the Startup Day), unless it has received an Opinion of Counsel (at the expense of the Person requesting such action) to the effect that such disposition, acquisition, substitution, or acceptance will not (A) affect adversely the status of any REMIC Pool as a REMIC or of the regular interests therein, (B) affect the distribution of interest or principal on the Certificates, (C) result in the encumbrance of the assets transferred or assigned to any REMIC Pool (except pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be subject to a tax on “prohibited transactions” or “prohibited contributions” or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, none of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer shall permit any modification of a Money Term of a Mortgage Loan (or of a related Serviced B Note or Serviced Companion Loan) unless (i) the Trustee, the Special Servicer, the Certificate Administrator, the Custodian and the Master Servicer have received a Nondisqualification Opinion or a ruling from the Internal Revenue Service (at the expense of the related Mortgagor, any holder of a related Serviced B Note or Serviced Companion Loan or the Trust) to the effect that such modification would not be treated as an exchange pursuant to Section 1001 of the Code (or, if it would be so treated, would not be treated as a “significant modification” for purposes of Section 1.860G-2(b) of the Treasury Regulations) or (ii) such modification meets the requirements set forth in Sections 8.18 or 9.5.
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status. If any REMIC Pool fails to qualify as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or tax as a result of a prohibited transaction or prohibited contribution subject to taxation under the REMIC Provisions due to the negligent performance by either the Trustee or the Certificate Administrator of its respective duties and obligations set forth herein, the Trustee or the Certificate Administrator, as the case may be, shall be liable to the REMIC Pools and the Holders of the Class R Certificates for any and all losses, claims, damages, liabilities or expenses (“Losses”) resulting from such negligence and relating to the Class R Certificates;
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provided, that the Trustee or the Certificate Administrator, as applicable, shall not be liable for any such Losses attributable to the action or inaction of the Master Servicer, the Special Servicer, the Trustee (with respect to the Certificate Administrator), the Certificate Administrator (with respect to the Trustee), the Depositor or the Holders of the Class R Certificates nor for any such Losses resulting from any actions or failure to act based upon reliance on an Opinion of Counsel or from misinformation provided by the Master Servicer, the Special Servicer, the Trustee (with respect to the Certificate Administrator), the Certificate Administrator (with respect to the Trustee), the Depositor or the Holders of the Class R Certificates on which the Trustee or the Certificate Administrator, as the case may be, has relied. The foregoing shall not be deemed to limit or restrict the rights and remedies of the Holders of the Class R Certificates now or hereafter existing at law or in equity. The Trustee or the Certificate Administrator shall be entitled to intervene in any litigation in connection with the foregoing and to maintain control over its defense.
Section 12.5 Grantor Trust.
(a) Any Class V Specific Grantor Trust Assets held in the Grantor Trust, consisting of the right to any Excess Interest in respect of the ARD Mortgage Loans and the Excess Interest Sub-account, shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Class V Grantor Trust Interest, represented by the Class V Certificates, which Class V Certificates, in the aggregate, shall evidence 100% beneficial ownership of such assets from and after the Closing Date.
(b) [Reserved].
(c) Under no circumstances may the Certificate Administrator vary the assets of the Grantor Trust so as to take advantage of variations in the market so as to improve the rate of return of Holders of the Class V Certificates. The Certificate Administrator shall be deemed to hold and shall account for the assets of the Grantor Trust separate and apart from the assets of REMIC I, REMIC II and REMIC III created hereunder.
(d) The parties intend that the portions of the Trust consisting of the Grantor Trust shall constitute, and that the affairs of the Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify such portion as, a “grantor trust” under the Code, as an “investment trust” under Treasury Regulations Section 301.7701-4(c), and as a “domestic trust” under Treasury Regulations Section 301.7701-7, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, the Certificate Administrator shall furnish or cause to be furnished to Holders of the Class V Certificates and shall file, or cause to be filed with the Internal Revenue Service, Form 1041 (or, if the Grantor Trust is a WHFIT, information will be provided on Form 1099) or such other form as may be applicable, at the time and in the manner required by the Code, indicating their respective shares of income and deductions with respect to such grantor trust, as such amounts accrue or are received, as the case may be.
(e) The Grantor Trust is a WHFIT that is a WHMT.
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Section 12.6 Grantor Trust Reporting Requirements.
(a) The Certificate Administrator will report as required under the WHFIT Regulations to the extent such information that is reasonably necessary to enable the Certificate Administrator to do so, and that is not already in its possession, is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that Depository is the only “middleman” as defined by the WHFIT Regulations unless the Depositor provides the Certificate Administrator with the identities of other “middlemen” that are Certificateholders. The Certificate Administrator shall be entitled to rely on the first (1st) sentence of this paragraph and shall be entitled to indemnification in accordance with the terms of this Agreement if the Internal Revenue Service makes a determination that the first (1st) sentence of this paragraph is incorrect.
(b) The Certificate Administrator, in its discretion, shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.
(c) The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information that is not already in its possession being provided to the Certificate Administrator, or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each owner of a class of securities representing, in whole or in part, beneficial ownership of an interest in a WHFIT, by acceptance of its interest in such class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of Certificates, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.
(d) To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on an appropriate website the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so published will represent the Rule 144A CUSIPs. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent CUSIPs have been received. Absent the receipt of a CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.
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ARTICLE
XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness. Except with respect to Section 13.9, Section 13.10 and Section 13.11, the parties hereto acknowledge and agree that the purpose of this Article XIII is to facilitate compliance by the Depositor with the provisions of Regulation AB and related rules and regulations of the Commission. Neither the Depositor nor the Certificate Administrator shall exercise its right to request delivery of information or other performance under these provisions other than in reasonable good faith, or (except with respect to Section 13.9, Section 13.10 or Section 13.11) for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, or otherwise, and agree to comply with reasonable requests made by the Depositor or the Certificate Administrator in good faith for delivery of information under these provisions on the basis of such evolving interpretations of the requirements of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered” and do not mandate compliance). In connection with the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 transaction, each of the parties to this Agreement shall cooperate fully with the Depositor and the Certificate Administrator, as applicable, to deliver or make available to the Depositor or the Certificate Administrator, as applicable (including any of their assignees or designees), any and all statements, reports, certifications, records and any other information in its possession and necessary in the reasonable good faith determination of the Depositor or the Certificate Administrator, as applicable, to permit the Depositor to comply with the provisions of Regulation AB, together with such disclosure relating to the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the Depositor or the Certificate Administrator, as applicable, to be necessary in order to effect such compliance. None of the Master Servicer, the Trust Advisor, the Trustee, the Custodian, any Sub-Servicer or the Special Servicer are responsible for filing any Exchange Act report with the Commission on behalf of the Trust. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 13.1, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor or the Certificate Administrator, as applicable, to satisfy any related filing requirements. For purposes of this Article XIII, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.
Section 13.2 Information to be Provided by the Master Servicer, the Special Servicer, the Custodian, any Primary Servicer and the Certificate Administrator.
(a) For so long as the Trust, and with respect to any Serviced Companion Loan that is deposited into an Other Securitization, such Other Securitization, is subject to the reporting requirements of the Exchange Act, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall (and each of the Master Servicer,
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the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, as applicable, shall (a) use commercially reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) (i) notify the Depositor, or the depositor in the Other Securitization with respect to the related Serviced Companion Loan, in writing of (A) any litigation or governmental proceedings pending against the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or such Sub-Servicer, as the case may be, or with respect to any of its property, that, in each such case, would be material to Certificateholders and (B) any affiliations of the type described in Item 1119 of Regulation AB or relationships of the type described in Item 1119 of Regulation AB that develop following the Closing Date between the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other parties identified in writing by the requesting party), on the one hand, and any other such party on the other, as the case may be, as such affiliation or relationship relates to the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 transaction (or an Other Securitization, if applicable), and (ii) provide to the Depositor a description of such legal proceedings, affiliations or relationships, in each case, in a form that would enable the Depositor to satisfy its reporting obligations under Item 1117 or 1119 of Regulation AB, as applicable.
(b) In connection with the succession to the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any Person (i) into which the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, may be merged or consolidated, or (ii) which may be appointed as a successor to the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each of the Master Servicer, the Special Servicer, the Custodian or the Trustee, as applicable, shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) provide to the Depositor, at least fifteen (15) calendar days prior to the effective date of such succession or appointment, as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, otherwise no later than the effective date of such succession or appointment, (x) written notice to the Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor, all information reasonably requested by the Depositor so that it may comply with its reporting obligation under Item 6.02 of Form 8-K as it relates to the Servicing Function with respect to any class of Certificates.
(c) With respect to any Serviced Companion Loan that is deposited into an Other Securitization, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, to the extent the out-of-pocket cost thereof (including any
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reasonable attorney fees) is paid or caused to be paid by the applicable party set forth below in this Section 13.2(c), take all actions reasonably requested of it to enable such Other Securitization to comply with Regulation AB. For the avoidance of doubt and without limiting the foregoing, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, if requested by the depositor for such Other Securitization, provide disclosure (in substantially the same form as the disclosure provided by it in the Prospectus Supplement, to the extent reasonably necessary to comply with Regulation AB) regarding the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, respectively, as reasonably and in good faith determined by the depositor in such Other Securitization to be required by Regulation AB for inclusion in disclosure documents with respect to such Other Securitization, together with an opinion of counsel as to the compliance of such disclosure with the requirements of Regulation AB and indemnification substantially similar to that provided in connection with the offering of the Certificates regarding damages incurred in connection with the non-compliance with the requirements of Regulation AB relating to the disclosure referred to in this sentence.
The out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to this Section 13.2(c) shall be paid or caused to be paid (pursuant to a payment arrangement reasonably acceptable to the delivering party and the receiving party and agreed to as a condition precedent to delivery of such items) by the applicable Seller that transferred the related Serviced Companion Loan to the related Other Depositor for inclusion in such Other Securitization; provided, that if any such information is provided in connection with the termination, removal, resignation or any other replacement of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator under this Agreement, the out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, pursuant to this Section 13.2(c) shall be paid or caused to be paid by the same party or parties required to pay the costs and expenses relating to such termination, removal, resignation or other replacement pursuant to this Agreement.
(d) If any Person appointed as a subcontractor or agent of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator (whether appointed directly by such party or by a Sub-Servicer or subcontractor or agent) would be a Servicing Function Participant, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall promptly following request provide to the Depositor and the Certificate Administrator a written description (in form and substance satisfactory to the Depositor) of the role and function of such Person, which description shall include (i) the identity of such subcontractor, and (ii) which elements of the Servicing Criteria will be addressed in the assessments of compliance to be provided by such subcontractor or agent. In addition, except with respect to any Seller Sub-Servicer under a sub-servicing agreement effective as of the Closing Date, if any Sub-Servicer, or any subcontractor or agent described above, would be a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, the engagement of such Person in such capacity shall not be effective unless and until five (5) Business Days have elapsed following the delivery of notice of the proposed
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engagement and the related agreement to the Depositor and the Certificate Administrator. Such notice shall contain all information reasonably necessary, and in such form as may be necessary, to enable the Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to Section 13.7 (if such reports under the Exchange Act are required to be filed under the Exchange Act).
(e) Each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) terminate, in accordance with the related sub-servicing agreement, any Sub-Servicer with which it has entered into such sub-servicing agreement, if such Sub-Servicer is in breach of any of its obligations under such sub-servicing agreement whose purpose is to facilitate compliance by the Depositor with the reporting requirements of the Exchange Act or with the provisions of Regulation AB and the related rules and regulations of the Commission; and (ii) cause each such sub-servicing agreement to entitle the Depositor to terminate such sub-servicing agreement upon any such breach without the consent of any other Person. The Depositor is hereby authorized to exercise the rights described in the preceding clause (ii) in its sole discretion.
Section 13.3 Filing Obligations. The Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer shall (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer, as applicable, shall (a) use commercially reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act.
Section 13.4 Form 10-D Filings.
Within 15 calendar days after each Distribution Date (or, if such 15th day is not a Business Day, the immediately preceding Business Day) (the “10-D Filing Deadline”) (subject to permitted extensions under the Exchange Act), the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act and as approved by the Depositor. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto. Any necessary disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the immediately succeeding paragraph, be reported by the parties set forth on Schedule IX and directed to the Depositor and the Certificate Administrator (or the Master Servicer, as specified in the immediately succeeding paragraph) for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure which is to be reported by it as set forth on Schedule IX) absent such reporting, direction and approval. The Certificate Administrator shall include in any Form 10-D filed by it (i) to the extent such information is provided to the Certificate Administrator by the Depositor for inclusion therein, (a) the information required by Rule 15Ga-1(a) under the Exchange Act concerning all assets of
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the Trust that were subject of a demand to repurchase or replace for breach of the representations and warranties and (b) a reference to the most recent Form ABS-15G filed by the Depositor and each Seller, if applicable, and the Commission assigned “Central Index Key” number for each such filer, (ii) to the extent such information is provided to the Certificate Administrator by the Master Servicer for inclusion therein within the time period described in the immediately succeeding paragraph, the balances of the Collection Account and any REO Account as of the related Distribution Date and as of the immediately preceding Distribution Date and (iii) the balances of the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Account, in each case as of the related Distribution Date and as of the immediately preceding Distribution Date. The Certificate Administrator and the Depositor shall be entitled together to determine the manner of the presentation of such information (including the dates as of which such information is presented) in accordance with applicable laws and regulations.
For so long as the Trust is subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date, each Person identified on Schedule IX shall be required to provide to the Depositor and the Certificate Administrator (or, with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other Securitization), to the extent known by such person, the form and substance of the corresponding Additional Form 10-D Disclosure set forth on Schedule IX, if applicable, and in a form readily convertible to an EDGAR-compatible format, or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such party; provided, that information relating to any REO Account to be reported under Item 8: Other Information on Schedule IX shall be reported by the Special Servicer to the Master Servicer within four (4) calendar days after the related Distribution Date. Any such Additional Form 10-D Disclosure to be delivered to the Certificate Administrator shall be delivered to it via email at cmbs.transactions@usbank.com. Each Person set forth on Schedule VII hereto shall include with such Additional Form 10-D Disclosure an Additional Disclosure Notification in the form attached hereto as Schedule IX. The Certificate Administrator shall provide prompt notice to the Depositor (or, with respect to a Serviced Companion Loan deposited into an Other Securitization, the depositor and the trustee in such Other Securitization) to the extent the Certificate Administrator is notified of an event reportable on Form 10-D for which it has not received the necessary Additional Form 10-D Disclosure from such party. The Certificate Administrator shall have no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule VII of their duties under this paragraph or proactively solicit or procure from any such parties any Additional Form 10-D Disclosure information. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by the second (2nd) calendar day after such fifth (5th) calendar day after the related Distribution Date, the Certificate Administrator shall include the form and substance of the Additional Form 10-D Disclosure on the related Form 10-D. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (866) 807-8670 and by email to cmbs.transactions@usbank.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
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On or prior to the end of business on the eleventh (11th) calendar day (or, if such day is not a Business Day, the immediately preceding Business Day) after the related Distribution Date the Certificate Administrator shall prepare and deliver electronically the Form 10-D to the Depositor for review. No later than the end of business on the twelfth (12th) calendar day after the related Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to such Form 10-D. No later than the end of business on the thirteenth (13th) calendar day after the related Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of its approval of such Form 10-D, and shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-D, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than the end of business on the 5th calendar day after the related Distribution Date. The Certificate Administrator shall (a) file such Form 10-D not later than 5:30 p.m. (New York City time) on the 10-D Filing Deadline or (b) use commercially reasonable best efforts to file such Form 10-D, if the Certificate Administrator received the signed Form 10-D after the signing deadline set forth in Section 13.14, not later than 5:30 p.m. (New York City time) on the 10-D Filing Deadline; provided that if the Certificate Administrator cannot file the Form 10-D prior to the deadline set forth in the immediately preceding clause (b), the Certificate Administrator shall file such Form 10-D as soon as possible thereafter. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator shall promptly, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-D prepared and filed by the Certificate Administrator. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.4 related to the timely preparation and filing of Form 10-D is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Section 13.4. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution or file such Form 10-D where such failure results from the Certificate Administrator’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. Any notices or draft Form 10-D delivered to the Depositor pursuant to this Section 13.4 shall be delivered by email to cmbs_filings@baml.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
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Section 13.5 Form 10-K Filing. On or prior to 5:30 p.m. (New York City time) on the ninetieth (90th) calendar day (or if such day is not a Business Day, the immediately preceding Business Day) after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2016, the Certificate Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for each Certifying Servicer, as set forth under Section 13.9, (ii)(A) the annual reports on assessment of compliance with Servicing Criteria for each Reporting Servicer, as set forth under Section 13.10, and (B) if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.10 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.10 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation as to why such report is not included, (iii)(A) the registered public accounting firm attestation report for each Reporting Servicer, as set forth under Section 13.11, and (B) if any registered public accounting firm attestation report described under Section 13.11 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation as to why such report is not included, and (iv) a Sarbanes-Oxley Certification as set forth in Section 13.6. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Schedule X and directed to the Depositor and the Certificate Administrator for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure (other than such Additional Form 10-K Disclosure which is to be reported by it as set forth on Schedule X) absent such reporting, direction and approval.
For so long as the Trust, and, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, are subject to the reporting requirements of the Exchange Act, no later than March 7th of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2016, each Person identified on Schedule X shall be required to provide to the Depositor (or, with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other Securitization) and the Certificate Administrator, to the extent known by such Person, the form and substance of the corresponding Additional Form 10-K Disclosure as set forth on Schedule X, if applicable, and in a form that is readily convertible to an EDGAR-compatible form (to the extent available to such party in such format), or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such Person. Any such Additional Form 10-K Disclosure to be delivered to the Certificate Administrator shall be delivered to it via email at cmbs.transactions@usbank.com. Each Person set forth on Schedule X hereto shall include with such Additional Form 10-K Disclosure an Additional Disclosure Notification in the form attached hereto as Schedule XII. The Certificate Administrator shall, at any time prior to filing the related Form 10-K, provide prompt notice to the Depositor to the extent the Certificate
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Administrator is notified of an event reportable on Form 10-K for which it has not received the necessary Additional Form 10-K Disclosure from such party. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule X of their duties under this paragraph or to proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by March 15th, the Certificate Administrator shall include the form and substance of the Additional Form 10-K Disclosure on the related Form 10-K. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (866) 807-8670 and by email to cmbs.transactions@usbank.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
On or prior to the end of business on March 23rd (or, if such day is not a Business Day, the immediately preceding Business Day), the Certificate Administrator shall prepare and deliver electronically a draft copy of the Form 10-K to the Depositor for review. No later than 5:00 p.m. (New York City time) on the third (3rd) Business Day prior to the 10-K Filing Deadline, a senior officer in charge of securitization of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-K, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than 5:00 p.m. (New York City time) on the 15th calendar day of March in any year in which the Trust is required to file a Form 10-K. The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any Form 10-K. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator shall, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-K prepared and filed by the Certificate Administrator. The signing party at the Depositor can be contacted at the address identified in Section 14.5. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.5 related to the timely preparation and filing of Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Article XIII. The Certificate Administrator shall have no liability with respect to any failure to properly prepare, arrange for execution or file such Form 10-K resulting from the Certificate Administrator’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K on a timely basis,
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not resulting from its own negligence, bad faith or willful misconduct. Any notices or draft Form 10-K delivered to the Depositor pursuant to this Section 13.5 shall be delivered by email to cmbs_filings@baml.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
If a Form 10-K is permitted to be filed notwithstanding any missing information for inclusion therein, the Certificate Administrator shall nonetheless file such Form 10-K and, if Regulation AB (or Form 10-K itself) permits the inclusion of an explanation why such information is missing, the Certificate Administrator shall include such explanation of the circumstances (such explanation to be based solely on such notice regarding the same as may have been delivered to the Certificate Administrator by the person responsible for the missing information).
Section 13.6 Sarbanes-Oxley Certification.
Each Form 10-K shall include a certification (the “Sarbanes-Oxley Certification”), exactly as set forth in Exhibit P-1 attached hereto, required to be included therewith pursuant to the Sarbanes-Oxley Act. Each Reporting Servicer shall provide, and each Reporting Servicer shall (a) use commercially reasonable efforts to cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans to provide, to the Person who signs the Sarbanes-Oxley Certification (the “Certifying Person”), by noon (New York City time) on March 10th (with no grace period) of each year subsequent to the fiscal year in which the Trust is subject to the reporting requirements of the Exchange Act, a certification (each, a “Performance Certification”), in the form attached hereto as Exhibit P-2, upon which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, the “Certification Parties”) can reasonably rely. The senior officer in charge of securitization of the Depositor shall serve as the Certifying Person on behalf of the Trust. Such officer of the Certifying Person can be contacted at the address identified in Section 14.5. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a Performance Certification and a reliance certificate to the Certifying Person pursuant to this Section 13.6 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance provision enabling the Certification Parties to rely upon each (i) annual compliance statement (as applicable) provided pursuant to Section 13.9, (ii) annual report on assessment of compliance with Servicing Criteria provided pursuant to Section 13.10 and (iii) registered public accounting firm attestation report provided pursuant to Section 13.11 and shall include a certification that each such annual report on assessment of compliance discloses any material instances of noncompliance described to the registered public accountants of such Reporting Servicer to enable such accountants to render the attestation provided for in Section 13.11.
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If any Serviced Companion Loan is deposited into a commercial mortgage securitization, and the applicable Reporting Servicer is provided with timely and complete contact information for the parties to the Other Securitization and the person signing the Other Securitization’s Sarbanes-Oxley Certification, such Reporting Servicer shall provide to the Person who signs the Sarbanes-Oxley Certification with respect to an Other Securitization a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Loan), upon which such certifying person, the entity for which the certifying person acts as an officer, and such entity’s officers, directors and Affiliates can reasonably rely. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use its commercially reasonable efforts to procure a Sarbanes-Oxley back-up certification from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Certificate Administrator, Non-Serviced Mortgage Loan Custodian and the Non-Serviced Mortgage Loan Trustee in form and substance similar to a Performance Certification or in the form specified in the Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such Sarbanes-Oxley back-up certification received by the Master Servicer.
Section 13.7 Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event requiring disclosure (the “8-K Filing Deadline”) under Form 8-K (each a “Reportable Event”), the Certificate Administrator, at the direction of the Depositor, shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the paragraph immediately below, be reported by any party set forth on Schedule XI to which such Reportable Event relates and such Form 8-K Disclosure Information shall be directed to the Depositor and the Certificate Administrator for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information (other than such Form 8-K Disclosure Information which is to be reported by it as set forth on Schedule XI) absent such reporting, direction and approval.
As set forth on Schedule XI hereto, for so long as the Trust, and, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, are subject to the Exchange Act reporting requirements, no later than noon (New York City time) on the second (2nd) Business Day after the occurrence of a Reportable Event the applicable Person identified on such Schedule XI shall be required to provide written notice to the Depositor (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other Securitization) and the Certificate Administrator of, to the extent known by such Person, the form and substance of the corresponding Form 8-K Disclosure Information, as set forth on Schedule XI, if applicable, and in a form that is readily convertible to an EDGAR-compatible form (to the extent available to such party in such format), or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such Party. Each Person set forth on Schedule XI hereto shall include with such Form 8-K Disclosure
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Information an Additional Disclosure Notification in the form attached hereto as Schedule XII. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by the close of business on the second (2nd) Business Day after such Reportable Event, the Certificate Administrator shall include the form and substance of the Form 8-K Disclosure Information on the related Form 8-K. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (866) 807-8670 and by email to cmbs.transactions@usbank.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
No later than noon (New York City time) on the 3rd Business Day after the Reportable Event, the Certificate Administrator shall prepare the Form 8-K. No later than the end of business on the 3rd Business Day after the Reportable Event, the Depositor (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor in such Other Securitization) shall sign the Form 8-K. If so directed by the Depositor, the Certificate Administrator shall (a) file such Form 8-K not later than 5:30 p.m. (New York City time) on the 4th Business Day after the related Reportable Event or (b) use reasonable best efforts to file such Form 8-K, if the Certificate Administrator received the signed Form 8-K after the end of business on the 3rd Business Day after the Reportable Event, not later than 5:30 pm (New York City time) on the 4th Business Day after the related Reportable Event; provided that if the Certificate Administrator cannot file the Form 8-K prior to the deadline set forth in the immediately preceding clause (b), the Certificate Administrator shall file such Form 8-K as soon as possible thereafter. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator will, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 8-K prepared and filed by the Certificate Administrator. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.7 related to the timely preparation and filing of Form 8-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Section 13.7. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct; provided that the Certificate Administrator shall prepare, arrange for execution and file such Form 8-K where such information from such other party is not received on a timely basis or not provided by such other party. Any notices or draft Form 8-K delivered to the Depositor pursuant to this Section 13.7 shall be delivered by email to cmbs_filings@baml.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
Notwithstanding the second preceding paragraph, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, each Sub-Servicer and each
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Servicing Function Participant, shall promptly notify (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, each Sub-Servicer and each Servicing Function Participant shall (a) use commercially reasonable efforts to cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to promptly notify) the Depositor and the Certificate Administrator, but in no event later than noon on the second (2nd) Business Day after its occurrence, of any Reportable Event of which it has actual knowledge to the extent such party is identified as a “Responsible Party” on Schedule XI with regard to such Reportable Event.
Section 13.8 Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports.
(a) On or before January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator, at the direction of the Depositor, shall prepare and file any form necessary to be filed with the Commission to suspend reporting in respect of the Trust under the Exchange Act. After the filing of any such form, the obligations of the parties to this Agreement under Sections 13.2(b), 13.4, 13.5, 13.6 and 13.7 shall be suspended for so long as neither the Trust nor, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, is subject to the reporting requirements of the Exchange Act. The Certificate Administrator shall provide each Reporting Servicer and each Seller with prompt written notice (which notice may be sent via facsimile or by email) if the Certificate Administrator files any such forms that effectuates the suspension of the Trust’s Exchange Act reporting obligations pursuant to this Section 13.8(a).
(b) The Certificate Administrator shall promptly notify the Depositor (which notice may be sent by facsimile or by email and which shall include the identity of those Reporting Servicers who did not deliver such information) and each Reporting Servicer that failed to deliver such information required to be delivered by it under this Agreement, if all, or any portion of, any required disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed pursuant to this Agreement is not delivered to it within the delivery deadlines set forth in this Agreement (including annual compliance statements pursuant to Section 13.9, annual reports on assessment of compliance with servicing criteria pursuant to Section 13.10 and attestation reports pursuant to Section 13.11). If the Certificate Administrator is unable to timely file with the Commission all or any required portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement because required disclosure information either was not delivered to it or was delivered to it after the delivery deadlines set forth in this Agreement or for any other reason, the Certificate Administrator shall promptly notify the Depositor (which may be sent by facsimile or by email, and which notice shall include the identity of those Reporting Servicers who either did not deliver such information or delivered such information to it after the delivery deadlines set forth in this Agreement) and each Reporting Servicer that failed to make such delivery. In the case of Form 10-D and Form 10-K, each such Reporting Servicer shall reasonably cooperate with the Depositor and the Certificate Administrator to prepare and file a Form 12b-25 and a Form 10-D/A and Form 10-K/A as
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applicable, pursuant to Rule 12b-25 of the Exchange Act, which forms shall be filed no later than one calendar day after the original due date for the related Form 10-D or Form 10-K, as applicable. In the case of Form 8-K, the Certificate Administrator shall, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the next Form 10-D that is required to be filed on behalf of the Trust. If any previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the Certificate Administrator shall notify the Depositor and such other parties as may be required and such parties shall reasonably cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any form filed under Section 13.8(a), Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed, in the case of form filed under Section 13.8(a), Form 12b-25 or any amendment to Form 8-K or Form 10-D, by a duly authorized officer of the Depositor, and in the case of Form 10-K, by a senior officer of the Depositor in charge of securitization. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.8 related to the timely preparation and filing of any form filed under Section 13.8(a), a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) performing their duties under this Section 13.8(b). The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file any such form filed under Section 13.8(a), Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such form filed under Section 13.8(a), Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or willful misconduct.
Section 13.9 Annual Compliance Statements.
The Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, and, if it has made an Advance during the applicable calendar year, the Trustee (each a “Certifying Servicer”) shall (and the Master Servicer, the Special Servicer, the Certificate Administrator and the Custodian shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) deliver electronically to the Depositor, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), solely in the case of the Special Servicer to the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period) and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, on or before March 10th with respect to any Certifying Servicer or on or before March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), with respect to any
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Additional Servicer and each Sub-Servicer, or if any such day is not a Business Day, the immediately preceding Business Day (with no cure period), with respect to the Master Servicer, the Special Servicer, the Certificate Administrator or the Custodian, of each year, commencing in March 2016, an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s or Additional Servicer’s, as the case may be, activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s or Additional Servicer’s, as the case may be, performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer or Additional Servicer’s, as the case may be, has fulfilled all its obligations under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Each Certifying Servicer shall, and the Master Servicer, the Special Servicer, the Certificate Administrator and the Custodian shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans to, and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans to, forward a copy of each such statement to the Rating Agencies (subject to Section 5.7) and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period). Promptly after receipt of each such Officer’s Certificate, the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review such Officer’s Certificate and, if applicable, consult with each Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer in the fulfillment of any of the Certifying Servicer’s obligations hereunder, or any failures by an Additional Servicer retained by such Certifying Servicer in the fulfillment of any of such Additional Servicer’s obligations under the applicable sub-servicing or primary servicing agreement. None of the Certifying Servicers or any Additional Servicer or any Sub-Servicer shall be required to deliver, or to endeavor to cause the delivery of, any such Officer’s Certificate until April 15, in the case of a Certifying Servicer, or April 1, in the case of any Additional Servicer or any Sub-Servicer, in any given year so long as it has received written confirmation (which shall be provided prior to March 1st) from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year.
If any Serviced Companion Loan is deposited into an Other Securitization, each Certifying Servicer, to the extent applicable, shall provide (within the time periods provided for under the related Other Companion Loan Pooling and Servicing Agreement to permit such requesting party to comply with its reporting obligations thereunder), if requested by a party to the Other Companion Loan Pooling and Servicing Agreement, an Officer’s Certificate as set forth in this Section. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use reasonable best efforts to procure an Officer’s Certificate as set forth in this Section, or in the form specified in the applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement, from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, the Non-Serviced Mortgage Loan Certificate Administrator and the Non-Serviced
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Mortgage Loan Custodian in form and substance similar to the Officer’s Certificate described in this Section. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such Officer’s Certificate received by the Master Servicer.
Section 13.10 Annual Reports on Assessment of Compliance with Servicing Criteria.
By March 10th of each year, or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), commencing in March 2016, the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of any Mortgage Loan), the Certificate Administrator, the Custodian, the Trust Advisor and, to the extent it is a Servicing Function Participant, the Trustee, each at its own expense, shall furnish electronically (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to furnish, each at its own expense), to the Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, a report on an assessment of compliance with the Relevant Servicing Criteria with respect to commercial mortgage backed securities transactions taken as a whole involving such party that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 13.5, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period.
No later than ten (10) Business Days after the end of each fiscal year for the Trust for which a Form 10-K is required to be filed, the Master Servicer, the Special Servicer, the Custodian and the Trustee (if applicable) shall each forward to the Certificate Administrator, the Depositor and each Seller, and the Certificate Administrator and the Depositor shall each forward to each Seller, the name and address of each Additional Servicer and each Servicing Function Participant engaged by it and (other than with respect to a notice to any Seller) what Relevant Servicing Criteria will be addressed in the report on assessment of compliance prepared
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by such Additional Servicer or Servicing Function Participant. When the Master Servicer, the Special Servicer, the Custodian, the Trustee (if applicable) and each Sub-Servicer submit their respective assessments by March 1st (or the immediately succeeding Business Day, if applicable) or March 10th, as applicable, to the Certificate Administrator, each such party shall also at such time include, in its submission to the Certificate Administrator, the assessment (and attestation pursuant to Section 13.11) of each Servicing Function Participant engaged by it. Not later than the end of each fiscal year for which the Trust (or any other securitization trust which owns a Serviced Companion Loan or a Non-Serviced Companion Loan) is required to file a Form 10-K and upon written request, the Certificate Administrator shall provide to each Seller written notice of any change in the identity of any party to this Agreement, including the name and address of any new party to this Agreement.
Promptly after receipt of each such report on assessment of compliance, (i) the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review each such report and, if applicable, consult with the Master Servicer, the Custodian, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable) and any Servicing Function Participant as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant, respectively, and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Schedule VIII and notify the Depositor of any exceptions. None of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant shall be required to deliver, or to endeavor to cause the delivery of, any such reports until April 15 in the case of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (if applicable), or April 1 in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation (which shall be provided prior to March 1st) from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide the reports and statements pursuant to this Section 13.10 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing agreement or primary servicing agreement, as the case may be. The parties hereto acknowledge that a material instance of noncompliance with the Relevant Servicing Criteria reported on an assessment of compliance pursuant to this Section 13.10 by the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator, the Trust Advisor or the Trustee shall not, as a result of being so reported, in and of itself, constitute a breach of such parties’ obligations, as applicable, under this Agreement unless otherwise provided for in this Agreement.
If any Serviced Companion Loan is deposited into an Other Securitization, each of the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of any Mortgage Loan), the Custodian, the Certificate Administrator and the Trustee, each at its own expense, shall furnish (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a
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servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to furnish, each at its own expense), if requested by a party to the Other Companion Loan Pooling and Servicing Agreement, an annual report on assessment of compliance as set forth in this Section and an attestation as set forth in Section 13.11. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use commercially reasonable best efforts to procure an annual report on assessment of compliance as set forth in this Section and an attestation as set forth in Section 13.11 from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, the Non-Serviced Mortgage Loan Certificate Administrator, the Non-Serviced Mortgage Loan Custodian and the Non-Serviced Mortgage Loan Trustee in form and substance similar to the annual report on assessment of compliance described in this Section and the attestation described in Section 13.11 or in the form required under the Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such annual report on assessment of compliance received by the Master Servicer.
Section 13.11 Annual Independent Public Accountants’ Servicing Report.
By March 10th of each year, or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), commencing in March 2016, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor and, to the extent it is a Servicing Function Participant, the Trustee, each at its own expense, shall cause (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to cause, each at its own expense) a registered public accounting firm (which may also render other services to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee, the Custodian, such Sub-Servicer or such other Servicing Function Participant, as the case may be) that is a member of the American Institute of Certified Public Accountants to furnish electronically a report to the Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), solely in the case of the Special Servicer to the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period), and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assessment from such Reporting Servicer of its compliance with the Relevant Servicing Criteria, and (ii) on the basis of an
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examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such Reporting Servicer’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria. If an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable) (or any Sub-Servicer or Servicing Function Participant with which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable) has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement)), (i) the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review the report and, if applicable, consult with the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian, any Sub-Servicer or any such Servicing Function Participant as to the nature of any material instance of noncompliance by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee, the Custodian or any such Servicing Function Participant with the Servicing Criteria applicable to such Person, and (ii) the Certificate Administrator shall confirm that each assessment submitted pursuant to Section 13.10 is coupled with an attestation meeting the requirements of this Section and notify the Depositor of any exceptions. The Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant shall not be required to deliver, or to endeavor to cause the delivery of, such reports until April 15 in the case of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable), or April 1, in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding fiscal year.
Section 13.12 Indemnification.
Each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian and the Trust Advisor (each an “Indemnifying Party”) shall indemnify and hold harmless each Certification Party (and, with respect only to clauses (ii), (iii) and (iv) below, any comparable party in an Other Securitization), their respective directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Certification Indemnitee”), against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon: (i) an actual breach by the Indemnifying Party of such Indemnifying Party’s representations under Section 3(xiv) of the related indemnification agreement in the case of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator or under Section 3(xix) of the related indemnification agreement in the case of the Trust Advisor, each dated the Pricing Date, between
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the related Indemnifying Party, the Depositor, the Underwriters and the Initial Purchasers; (ii) the failure of any Indemnifying Party to perform its obligations under this Article XIII; (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Seller Sub-Servicer) to perform its obligations to the Depositor (or any depositor related to any Other Securitization which owns any Serviced Companion Loan) or the Certificate Administrator (or any trustee or certificate administrator related to any Other Securitization which owns any Serviced Companion Loan) under this Article XIII by the time required after giving effect to any applicable grace period and cure period; (iv) any untrue statement or alleged untrue statement of a material fact contained in any information (x) regarding the Indemnifying Party or any Servicing Function Participant, Additional Servicer or subcontractor engaged by it (other than any Seller Sub-Servicer), (y) prepared by any such party described in clause (x) or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such Indemnifying Party in connection with the performance of such Indemnifying Party’s obligations described in this Article XIII, or the omission or alleged omission to state in any such information a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that such Indemnifying Party shall be entitled to participate in any action arising out of the foregoing and the Depositor shall consult with such Indemnifying Party with respect to any litigation or audit strategy, as applicable, in connection with the foregoing and any potential settlement terms related thereto; (v) negligence, bad faith or willful misconduct on the part of the Indemnifying Party in the performance of such obligations; or (vi) any Deficient Exchange Act Deliverable with respect to such Indemnifying Party.
In addition, each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Sub-Servicer retained by it to cooperate under the applicable subservicing agreement) with the Depositor as necessary for the Depositor to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).
In connection with comments provided to the Depositor from the Commission regarding information (x) delivered by the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or a Sub-Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information, which information is contained in a report (an “ARP Report”) filed by the Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s filing of such report, the Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission for inclusion in the Depositor’s response to the Commission, unless such Affected Reporting Party elects, with the consent of the Depositor (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission and negotiate a response and/or resolution with the Commission; provided, that if an Affected
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Reporting Party is a Servicing Function Participant or Sub-Servicer retained by the Master Servicer or the Special Servicer, as applicable, the Master Servicer or the Special Servicer, as applicable, shall require the Servicing Function Participant or Sub-Servicer to provide it with, and the Master Servicer or the Special Servicer, as applicable, shall be entitled to receive, copies of all material communications pursuant to this paragraph. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission in a timely manner; provided, that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor informed of its progress with the Commission and copy the Depositor on all correspondence with the Commission and provide the Depositor with the opportunity to participate (at the Depositor’s expense) in any telephone conferences and meetings with the Commission and (ii) the Depositor shall cooperate with such Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission with respect to any comments from the Commission relating to such Affected Reporting Party and to notify the Commission of such authorization. The Depositor and such Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor) in connection with the circumstances described in the first sentence of this paragraph (other than those costs and expenses required to be at the Depositor’s expense as set forth above) and any amendments to any ARP Reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor. Each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall use commercially reasonable efforts to cause any Servicing Function Participant or Sub-Servicer retained by it to comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.
The Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to indemnify and hold harmless each Certification Party (and any comparable party in an Other Securitization) from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual assessment of servicing criteria or attestation reports pursuant to this Agreement, or the applicable sub-servicing or primary servicing agreement, as applicable, (ii) negligence, bad faith or willful misconduct on its part in the performance of such obligations thereunder or (iii) any Deficient Exchange Act Deliverable with respect to such Additional Servicer.
If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator, each Additional Servicer
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or other Servicing Function Participant (the “Performing Party”) shall (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to) contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to this Article XIII (or breach of its representations or obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports or otherwise comply with the requirements of this Article XIII) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to agree to the foregoing indemnification and contribution obligations.
Promptly after receipt by the Certification Party of notice of the commencement of any action, such Certification Party shall, if a claim in respect thereof is to be made against an Indemnifying Party hereunder, notify in writing the Indemnifying Party of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability which it may have to the Certification Party under this Agreement except to the extent that such omission to notify materially prejudices the Indemnifying Party. In case any such action is brought against the Certification Party, after the Indemnifying Party has been notified of the commencement of such action, such Indemnifying Party shall be entitled to participate therein (at its own expense) and, to the extent that it may wish, shall be entitled to assume the defense thereof (jointly with any other Indemnifying Party similarly notified) with counsel reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed), and after notice from the Indemnifying Party to the Certification Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to the Certification Party for any expenses subsequently incurred in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, the Certification Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of the Certification Party unless (i) the Indemnifying Party and the Certification Party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties and, in the case of an investigation by the Commission, any parties that are, or whose reporting materials are, the subject of such investigation) include both the Indemnifying Party and the Certification Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or
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(iii) the Indemnifying Party fails within a reasonable period of time to designate counsel that is reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed). In no event shall the Indemnifying Parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) in any one jurisdiction separate from their own counsel for the Certification Party in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent. However, if settled with such consent, the Indemnifying Party shall indemnify the Certification Party from and against any loss or liability by reason of such settlement to the extent that the Indemnifying Party is otherwise required to do so under this Agreement. If an Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the Certification Party (which consent shall not be unreasonably withheld or delayed) or, if such settlement (i) provides for an unconditional release of the Certification Party in connection with all matters relating to the proceeding that have been asserted against the Certification Party in such proceeding by the other parties to such settlement and (ii) does not require an admission of fault by the Certification Party, without the consent of the Certification Party.
Section 13.13 Amendments.
This Article XIII, Schedule VIII, Schedule IX, Schedule X and Schedule XII may be amended by the written consent of all of the parties hereto and, if any such amendment to Schedule VIII, Schedule IX, Schedule X and Schedule XI adds additional reporting obligations for a Seller, with the consent of the related Seller, pursuant to Section 14.3 (without, in each case, any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement) for purposes of complying with Regulation AB or the Trust’s Exchange Act reporting obligations.
Section 13.14 Exchange Act Report Signatures.
Each Form 8-K report, Form 10-D report and Form 10-K report shall be signed by the Depositor. The Depositor shall provide its signature to the Certificate Administrator by electronic or fax transmission (with hard copy to follow by overnight mail) no later than the end of business on the thirteenth (13th) calendar day following the related Distribution Date for Form 10-D, and not later than the end of business on the 3rd Business Day after the Reportable Event for Form 8-K (provided, that in each case the Certificate Administrator shall not file the related form until the Depositor has given its approval thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously filed Form 8-K or Form 10-D needs to be amended, the Certificate Administrator will follow the procedures set forth in this Article XIII. The signing party at the Depositor can be contacted at the address identified in Section 14.5.
Section 13.15 Significant Obligors.
With respect to any Mortgaged Property that secures a Serviced Companion Loan that the Other Depositor has notified the Master Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization
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that includes such Serviced Companion Loan, the Master Servicer shall, after receipt of updated net operating income information, (x) promptly deliver the financial statements of such “significant obligor” to the Other Depositor and Other Trustee of such Other Securitization and (y) update the following columns of the CREFC® Loan Periodic Update File related to such “significant obligor” for (a) the next applicable Distribution Date if the Master Servicer receives the updated net operating income information on or before the close of business on the tenth (10th) Business Day prior to the related Determination Date or (b) the subsequent Distribution Date if the Master Servicer receives the updated net operating income information after the close of business on the tenth (10th) Business Day prior to the related Determination Date: BB, BP, BT and BU (corresponding fields 54 – “Preceding Fiscal Year NOI,” 68 – “Most Recent NOI,” 72 – “Most Recent Financial As of Start Date” and 73 – “Most Recent Financial As of End Date”), as such column references and field numbers may change from time to time.
If the Master Servicer does not receive financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten Business Days after the date such financial information is required to be delivered under the related Mortgage Loan documents, the Master Servicer shall notify the Other Depositor with respect to such Other Securitization that includes the related Serviced Companion Loan (or the Master Servicer shall cause a Sub-Servicer to notify such Other Depositor) that it has not received them. The Master Servicer shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements of the related Mortgagor under the related Mortgage Loan documents.
The Master Servicer shall (or shall cause a Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the borrower related to such “significant obligor” to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed by the Other Securitization, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the certificate administrator and Other Depositor related to such Other Securitization. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Companion Loan Pooling and Servicing Agreement.
ARTICLE
XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 14.2 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the
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subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
Section 14.3 Amendment.
(a) This Agreement may be amended from time to time by the parties hereto, without notice to or the consent of any of the Holders, (i) to cure any ambiguity or to correct any error, (ii) to cause the provisions herein to conform to or be consistent with or in furtherance of the statements made with respect to the Certificates, the Trust or this Agreement in the Preliminary Prospectus, the Final Prospectus or the Private Placement Memorandum, or to correct or supplement any provision herein which may be inconsistent with any other provisions herein, (iii) to amend any provision hereof to the extent necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or of the Grantor Trust as a grantor trust or to facilitate the administration or reporting thereof) for the purposes of federal income tax law (or comparable provisions of state income tax law), (iv) to make any other provisions with respect to matters or questions arising under or with respect to this Agreement not inconsistent with the provisions hereof, (v) to modify, add to or eliminate the provisions of Article III relating to transfers of Class R Certificates, (vi) to amend any provision herein to the extent necessary or desirable to list the Certificates on a stock exchange, including, without limitation, the appointment of one or more sub-certificate administrators and the requirement that certain information be delivered to such sub-certificate administrators, (vii) to modify the provisions relating to the timing of Advance reimbursements in order to conform them to the commercial mortgage-backed securities industry standard for such provisions if (w) the Depositor, the Trustee and the Master Servicer determine that that industry standard has changed, (x) such modification will not result in an Adverse REMIC Event or Adverse Grantor Trust Event, as evidenced by an Opinion of Counsel, (y) each Rating Agency shall have been provided with a Rating Agency Communication with respect to such modification and (z) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative consents to such modification, (viii) to modify the procedures relating to Exchange Act Rule 17g-5, provided that if such modification materially increases the obligations of the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Trust Advisor, the Depositor, the Master Servicer or the Special Servicer, then the consent of such party shall be required; provided, further, that notice of any such amendment must be provided by the Trustee to the 17g-5 Information Provider, who will post such notice to the 17g-5 Information Provider’s Website, and within two (2) Business Days following delivery to the 17g-5 Information Provider, deliver notice to the Rating Agencies, (ix) to modify, alter, amend, add to or rescind any of the provisions contained in this Agreement if and to the extent necessary to comply with any rules or regulations promulgated, or any guidance provided, with respect to Rule 15Ga-1 under the Exchange Act, (x) to amend Section 1.7 or the definition of “Rating Agency Confirmation”, (xi) if a TIA Applicability Determination is made, to modify, eliminate or add to the provisions of this Agreement (and, if necessary, the Certificates) to the extent necessary to (A) effect the qualification of this Agreement under the TIA or under any similar federal statute hereafter enacted and to add to this Agreement (and, if necessary, the Certificates) such other provisions as may be expressly required by the TIA, and (B) modify such other provisions of this Agreement (and, if necessary, the Certificates) to the extent necessary to make those provisions consistent with, and conform to, the modifications made pursuant to clause (A); provided that any amendment pursuant to this clause (xi) shall be at the sole cost and expense of
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the Depositor, or (xii) to make any other amendment which does not adversely affect in any material respect the interests of any Certificateholder (unless such Certificateholder consents). No such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in any material respect the interests of any Certificateholder not consenting thereto without the consent of 100% of the Certificateholders (if adversely affected) or (B) adversely affect the status of any REMIC Pool as a REMIC (or of the Grantor Trust as a grantor trust) for purposes of federal income tax law (or comparable provisions of state income tax law). Prior to entering into any amendment without the consent of Holders pursuant to this paragraph, the Trustee may require an Opinion of Counsel, addressed to the parties to this Agreement, to the effect that such amendment is permitted under this paragraph and a Nondisqualification Opinion.
(b) Reserved.
(c) This Agreement may also be amended from time to time by the parties with the consent of the Holders of Certificates representing not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders; provided that no such amendment may (i) directly or indirectly reduce in any manner the amount of, or delay the timing of, the distributions required to be made on any Certificate without the consent of the Holder of such Certificate, (ii) modify this Section 14.3 without the consent of 100% of the Certificateholders, (iii) eliminate or reduce the Master Servicer’s or the Trustee’s obligation to make an Advance, including without limitation, in the case of the Master Servicer, the obligation to advance on a Serviced B Note or Serviced Companion Loan, or alter the Servicing Standard except as may be necessary or desirable to comply with the REMIC Provisions, (iv) adversely affect the status of any REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a Nondisqualification Opinion) without the consent of 100% of the Certificateholders (including the Class R Certificateholders), or the status of the Grantor Trust as a grantor trust without the consent of 100% of the holders of the Class V Certificates, (v) adversely affect the interests of any Class of Certificateholders (other than as contemplated by clause (i), (ii) or clause (vi) of this sentence) without the consent of Certificateholders entitled to 66-2/3% of the Voting Rights allocated to such Class, and (vi) adversely affect the Voting Rights of any Class of Certificateholders without the consent of Certificateholders entitled to 100% of the Voting Rights allocated to such Class. The Trustee may request, at its option, to receive a Nondisqualification Opinion and an Opinion of Counsel that any amendment pursuant to this Section 14.3(c) is permitted by this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment, including those related to Opinions of Counsel, shall be borne by the Depositor if the Trustee is the party requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of Section 14.3(a). In all other cases, the costs and expenses shall be borne by the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the Certificate Administrator shall furnish written notification of the substance of such amendment to each Holder, the other parties hereto and the 17g-5 Information Provider.
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(f) It shall not be necessary for the consent of Holders under this Section 14.3 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Holders shall be in writing and shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section 14.3, the parties hereto agree that this Agreement may not be amended in any manner materially adverse to any Underwriter or any Initial Purchaser, the holder of any Serviced B Note or the holder of any Serviced Companion Loan without the prior written consent of such Underwriter or Initial Purchaser, the holder of such Serviced B Note or the holder of such Serviced Companion Loan, respectively.
(h) Notwithstanding any contrary provisions of this Agreement, this Agreement may not be amended in a manner that would increase the obligations or impair the rights of any Seller under the related Mortgage Loan Purchase Agreement without the prior written consent of such Seller.
(i) In addition, if one but not all of the Mortgage Notes evidencing a Joint Mortgage Loan is repurchased by the applicable Sellers, this Agreement may be amended by the parties hereto (at the expense of the party requesting such amendment), without the consent of any Certificateholder, to add or modify provisions relating to the applicable Repurchased Note for purposes of the servicing and administration of such Repurchased Note, provided that the amendment shall not adversely affect in any material respect the interests of the Certificateholders, as evidenced by a Rating Agency Confirmation from each Rating Agency (obtained at the expense of the Repurchasing Seller) with respect to such amendment (or, if no such Rating Agency Confirmation is actually received, by an Opinion of Counsel to such effect). Prior to the effectiveness of such amendment, if one but not all of the Mortgage Notes with respect to a Joint Mortgage Loan is repurchased, the terms of Section 8.30 shall govern the servicing and administration of such Joint Mortgage Loan.
(j) If neither the Depositor nor any successor thereto, if any, is in existence, any amendment under this Section 14.3 shall be effective with the consent of the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer and the Special Servicer, in writing, and to the extent required by this Section 14.3, the Certificateholders and the holder of any Serviced B Note or Serviced Companion Loan.
Section 14.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 14.5 Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given when received by:
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(a) | in the case of the Depositor, Banc of America Merrill Lynch Commercial Mortgage Inc., One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, III, facsimile: (646) 855-5044 (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel and Director, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, facsimile: (404) 736-2127 and with a copy to Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Charlotte, North Carolina 28202, facsimile: (704) 348-5200); |
(b) | in the case of the Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, 10851 Mastin Street, Suite 700, Overland Park, Kansas 66210, Attention: Executive Vice President – Division Head, facsimile: (913) 253-9001 (with a copy to Stinson Leonard Street LLP, 1201 Walnut Street, Suite 2900, Kansas City, Missouri 64106-2150, Attention: Kenda K. Tomes, facsimile: (816) 412-9338); |
(c) | in the case of BANA, Bank of America, National Association, One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, III, facsimile: (646) 855-5044 (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel and Director, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, facsimile: (404) 736-2127 and with a copy to Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Charlotte, North Carolina 28202, facsimile: (704) 348-5200); |
(d) | in the case of UBSRES, UBS Real Estate Securities Inc., 1285 Avenue of the Americas, New York, New York 10019, Attention: David Schell, with a copy to: UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Henry Chung and Office of General Counsel, with a copy to: UBS AG, 153 West 51st Street, New York, New York 10019, Attention: Chad Eisenberger, Executive Director & Counsel; |
(e) | in the case of the Special Servicer, LNR Partners, LLC, 1601 Washington Avenue, Suite 700, Miami Beach, Florida 33139, Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw, facsimile: (305) 695-5601 (with a copy to tnealon@lnrproperty.com, srivers@lnrproperty.com, jwarshaw@lnrproperty.com and, for all matters relating to notices under Section 5.7, inquiries@lnrproperty.com; |
(f) | in the case of the Trust Advisor, Pentalpha Surveillance LLC, 375 N. French Road, Suite 100, Amherst, New York 14228, Attention: Don Simon, Chief Operating Officer, e-mail: don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com (with a copy to Bass, Berry & Sims PLC, 150 Third Avenue South, Suite 2800, Nashville, Tennessee 37201, Attention: Jay Knight, e-mail: jknight@bassberry.com); |
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(g) | in the case of the initial Controlling Class Representative, Ellington Management Group, LLC, 53 Forest Avenue, Old Greenwich, Connecticut 06870, Attention: Leo Huang, with a copy to Ellington Management Group, LLC, 53 Forest Avenue, Old Greenwich, Connecticut 06870, Attention: General Counsel; and |
(h) | in the case of the Trustee, the Certificate Administrator, the Custodian or the 17g-5 Information Provider, U.S. Bank National Association, the Corporate Trust Office thereof, Attention: Mortgage Document Custody Services, Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, facsimile: (866) 807-8670; |
or as to each party such other address as may hereafter be furnished by such party to the other parties in writing. Any notice required or permitted to be mailed to a Holder shall be given by first class mail, postage prepaid, at the address of such Holder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Solely to the extent the provisions herein contemplate electronic delivery of information, such information shall be transmitted via electronic mail with a subject reference of “BACM 2015-UBS7” and an identification of the type of information being provided in the body of such electronic mail:
(a) | in the case of the Depositor, to leland.f.bunch@baml.com; |
(b) | in the case of the Master Servicer and solely with respect to notices under Section 5.7 of this Agreement, to noticeadmin@midlandls.com (with a copy to AskMidland@Midlandls.com) and for all other notices, to noticeadmin@midlandls.com; |
(c) | in the case of BANA, to leland.f.bunch@baml.com, paul.kurzeja@bankofamerica.com, william.stillerman@bankofamerica.com and henry.labrun@cwt.com; |
(d) | in the case of UBSRES, to david.schell@ubs.com, nicholas.galeone@ubs.com, henry.chung@ubs.com and chad.eisenberger@ubs.com; |
(e) | in the case of the Special Servicer, to tnealon@lnrproperty.com, srivers@lnrproperty.com, jwarshaw@lnrproperty.com and, for all matters relating to notices under Section 5.7, inquiries@lnrproperty.com; |
(f) | in the case of the Trust Advisor, to don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com; |
(g) | in the case of the initial Controlling Class Representative, to lhuang@ellington.com; |
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(h) | in the case of information provided by a Certificateholder to the Trustee, to cmbs.transactions@usbank.com; |
(i) | in the case of Certificate Administrator, to cmbs.transactions@usbank.com; and |
(j) | in the case of the 17g-5 Information Provider, to the extent not described in Section 5.7, to 17g5informationprovider@usbank.com. |
Section 14.6 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 14.7 Indulgences; No Waivers. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
Section 14.8 Headings Not to Affect Interpretation. The headings contained in this Agreement are for convenience of reference only, and shall not be used in the interpretation hereof.
Section 14.9 Benefits of Agreement. Nothing in this Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder and the Holders of the Certificates, any benefit or any legal or equitable right, power, remedy or claim under this Agreement; provided, that: (i) the Underwriters and Initial Purchasers are intended third-party beneficiaries of Section 5.7, of Section 14.3(g) and of any other provision hereunder that expressly grants them any rights, including the right to indemnity and the right to receive notices, reports and access to information; (ii) each Seller is an intended third-party beneficiary of Section 2.3(e), Section 5.7, Section 8.3(h) and any other Section of this Agreement that affords such Seller; (iii) the holder of any Serviced Companion Loan and any Serviced B Note, if any, is an intended third-party beneficiary in respect of the rights afforded it hereunder; (iv) the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer are intended third-party beneficiaries of Section 4.4(c), Section 5.2(a)(I)(ii)(B), Section 8.1(f) and Article XIII; (v) each Other Indemnified Party is an intended third-party beneficiary of Section 1.6(j) and Section 5.2(a)(I)(vi); (vi) the Mortgagor(s) set forth in Schedule III hereto are intended third-party beneficiaries of the fifth and sixth paragraphs of Section 2.3(a); and (vii) if one, but not all, of the Mortgage Notes with respect to any Joint Mortgage Loan is repurchased, the applicable Repurchasing Seller shall be a third party
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beneficiary of this Agreement to the same extent as if it was a holder of a Serviced Companion Loan, as contemplated by Section 8.30 hereof.
Section 14.10 Reserved.
Section 14.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.
Section 14.12 Intention of Parties. It is the express intent of the parties hereto that the conveyance of the Mortgage Loans and related rights and property to the Trustee, for the benefit of the Certificateholders, by the Depositor as provided in Section 2.1 be, and be construed as, an absolute sale of the Mortgage Loans and related property. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans and related property by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, if, notwithstanding the intent of the parties, the Mortgage Loans or any related property is held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans or any related property, then this Agreement shall be deemed to be a security agreement; and the conveyance provided for in Section 2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the benefit of the Certificateholders, of, and the Depositor hereby grants to the Trustee, for the benefit of the Certificateholders, a security interest in all of the Depositor’s right, title, and interest, whether now owned or existing or hereafter acquired or arising, in, to and under:
(i) the property described in clauses (1)-(4) below (regardless of whether subject to the UCC or how classified thereunder) and all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the property described in clauses (1)-(4) below: (1) the Mortgage Loans identified on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, all distributions with respect thereto payable on and after the Cut-off Date, and the Mortgage Files; (2) the Distribution Account, all REO Accounts, the Collection Account, and the Reserve Accounts, including all property therein and all income from the investment of funds therein (including any accrued discount realized on liquidation of any investment purchased at a discount); (3) the REMIC I Regular Interests and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase Agreements that are permitted to be assigned to the Trustee pursuant to Section 14 thereof;
(ii) all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property, and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in
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clause (i) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash Proceeds (as defined in the Uniform Commercial Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Custodian (on the Trustee’s behalf) of the Mortgage Notes, the Mortgages and such other goods, advices of credit, instruments, money, documents, chattel paper or certificated securities and the possession by the Master Servicer (on the Trustee’s behalf) of the letters of credit shall be deemed to be possession by the secured party or possession by a purchaser for purposes of perfecting the security interest pursuant to the Uniform Commercial Code (including, without limitation, Sections 8-301 and 9-315 thereof) as in force in the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or persons holding for, the Trustee, as applicable, for the purpose of perfecting such security interest under applicable law.
The Depositor and, at the Depositor’s direction, the Master Servicer and the Trustee, shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. The Master Servicer shall prepare and make all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee’s security interest in such property, including without limitation (i) continuation statements, and (ii) such other statements as may be occasioned by any transfer of any interest of the Master Servicer or the Depositor in such property. In connection herewith, the Trustee shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction.
Section 14.13 Recordation of Agreement. This Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere. Such recordation, if any, shall be effected by the Master Servicer at the expense of the Trust as an Additional Trust Expense, but only upon direction of the Depositor accompanied by an opinion of counsel to the effect that such recordation materially and beneficially affects the interests of the Certificateholders of the Trust.
Section 14.14 Rating Agency Surveillance Fees. The parties hereto acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring fees of the Rating Agencies relating to the rating of the Certificates and that no surveillance fees are payable subsequent to the Closing Date in respect of the rating of the Certificates.
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Section 14.15 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.
Section 14.16 Submission to Jurisdiction. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
Section 14.17 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right to vote or in any manner otherwise control the Master Servicer or operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association, nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.
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(c) No Certificateholder, solely by virtue of its status as Certificateholder, shall have any right by virtue or by availing of any provision of this Agreement or any Certificate to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement or any Certificate unless the Holders of Certificates evidencing greater than 50% of the Aggregate Certificate Balance of the Certificates then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the cost, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty (60) days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request has been given the Trustee during such sixty-day period by such Certificateholders; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue or by availing of any provision of this Agreement or any Certificate to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement or any Certificate, except in the manner herein provided and for the benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
(d) No Certificateholder shall be “Party in Interest” as described under 11 U.S.C. Section 1109(b) solely by virtue of its ownership of a Certificate.
Section 14.18 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee or the Custodian, as applicable, and, where it is hereby expressly required, to the Depositor and the Certificate Administrator. Such instrument or instruments (as the action embodies therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agents shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Custodian, the Depositor and the Certificate Administrator, if made in the manner provided in this Section. Each of the Trustee and the Custodian agrees to promptly notify the Depositor of any such instrument or instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments or deeds, certifying that the individual signing such instrument or writing acknowledged to such notary public or other officer the execution thereof. Whenever such execution is by an officer of a corporation or
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a member of a partnership on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the individual executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Trustee or the Custodian) shall be proved by the Certificate Register, and none of the Trustee, the Custodian, the Depositor or the Certificate Administrator shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Trustee, the Custodian, the Certificate Administrator or the Depositor in reliance thereon, whether or not notation of such action is made upon such Certificate.
Section 14.19 Compliance with Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the parties hereto may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with such party. Accordingly, each of the parties to this Agreement agrees to provide to any other party to this Agreement, upon request from time to time, such identifying information and documentation as may be available in order to enable the requesting party to comply with Applicable Laws.
Section 14.20 Precautionary Trust Indenture Act Provisions. If the Depositor notifies the parties to this Agreement that it has determined, in consultation with the Trustee, that the TIA applies to this Agreement or that qualification under the TIA or any similar federal statute hereafter enacted is required (any such determination by the Depositor, a “TIA Applicability Determination”), then, (i) in the case of the TIA, pursuant to Section 318 of the TIA (assuming such section is then in effect), the provisions of Sections 310 to and including Section 317 of the TIA that impose duties on any person are part of and govern this Agreement, whether or not physically contained herein, as and to the extent provided in Section 318 of the TIA; provided, that it shall be deemed that the parties to this Agreement have agreed that, to the extent permitted under the TIA, this Agreement shall expressly exclude any non-mandatory provisions that (x) conflict with the provisions of this Agreement or would otherwise alter the provisions of this Agreement or (y) increase the obligations, liabilities or scope of responsibility of any party hereto; (ii) the parties agree to cooperate in good faith with the Depositor to make such amendments to modify, eliminate or add to the provisions of this Agreement to the extent necessary to effect the qualification of this Agreement under the TIA or such similar statute and to add to this Agreement such other provisions as may be expressly required by the TIA or as may be determined by the parties to be beneficial for compliance with the TIA; and (iii) upon the direction of the Depositor, the Trustee shall file a Form T-1 or such other form as the Depositor informs the Trustee is required, with the Commission or other appropriate institution.
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Section 14.21 Limitation on Liability of the Depositor and Others. Neither the Depositor nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Depositor shall be under any liability to the Certificateholders, the Trust, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan, and the Depositor (and any of its Affiliates, directors, officers, employees, members, managers or agents) shall be entitled to indemnification from the Trust for any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action incurred by it, arising out of or for any action taken, or for refraining from the taking of any action, in good faith and using reasonable business judgment; provided, that this provision shall not protect the Depositor or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Depositor and any Affiliate, director, officer, employee, member, manager or agent of the Depositor may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. In addition, in no event shall the Depositor be obligated to cause any party to perform or comply with the obligations to remit the CREFC® License Fee to CREFC® (as described in Section 5.2(a)), to report any such CREFC® License Fee so paid (as described in Section 8.11(a)) or to make available any Distribution Date Statement to the general public (as described in Section 5.4(a) (or, in particular, CREFC®, as described in Section 5.4(k))).
Section 14.22 PNC Bank, National Association. PNC Bank, National Association, by execution hereof by its division, Midland Loan Services, a Division of PNC Bank, National Association, acknowledges and agrees that this Agreement is binding upon and enforceable against PNC Bank, National Association to the full extent of the obligations set forth herein with respect to Midland Loan Services, a Division of PNC Bank, National Association.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator, the 17g-5 Information Provider, the Certificate Registrar, the Authenticating Agent and the Trust Advisor have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC., as Depositor | ||
By: | /s/ Leland F. Bunch, III | |
Name: Leland F. Bunch, III | ||
Title: Senior Vice President | ||
MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, as Master Servicer | ||
By: | /s/ David A. Eckels | |
Name: David A. Eckels | ||
Title: Senior Vice President | ||
LNR PARTNERS, LLC, as Special Servicer | ||
By: | /s/ Jerry Hirschkorn | |
Name: Jerry Hirschkorn | ||
Title: Vice President | ||
PENTALPHA SURVEILLANCE LLC, as Trust Advisor | ||
By: | /s/ James Callahan | |
Name: James Callahan | ||
Title: Executive Director and Solely as an Authorized Signatory for Pentalpha Surveillance LLC |
BACM 2015-UBS7 – Pooling and Servicing Agreement
U.S. BANK NATIONAL ASSOCIATION, as Trustee, Certificate Administrator, 17g-5 Information Provider, Authenticating Agent and Certificate Registrar | ||
By: | /s/ Christopher J. Nuxoll | |
Name: Christopher J. Nuxoll | ||
Title: Vice President | ||
U.S. BANK NATIONAL ASSOCIATION, as Custodian | ||
By: | /s/ Kevin E. Brown | |
Name: Kevin E. Brown | ||
Title: Assistant Vice President |
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF NEW YORK | ) | |
) | ss.: | |
COUNTY OF NEW YORK | ) |
On this 23rd day of September 2015, before me, a notary public in and for said State, personally appeared Leland Bunch, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as S.V.P on behalf of Banc of America Merrill Lynch Commercial Mortgage Inc., and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Danielle Caldwell | ||
Notary Public | ||
[SEAL] | ||
K DANIELLE CALDWELL DIRECTOR Notary Public - State of New York No. 01CA6081843 Qualified in New York County Commission Expires Dec. 04, 2018 | ||
My commission expires: | ||
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF KANSAS | ) | |
) | ss.: | |
COUNTY OF JOHNSON | ) |
On this 18th day of September 2015, before me, a notary public in and for said State, personally appeared David Eckels, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as a Senior Vice President of Midland Loan Services, a Division of PNC Bank, National Association, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Brent Kinder | ||
Notary Public | ||
[SEAL] | ||
BRENT KINDER NOTARY PUBLIC - State of Kansas My Appt. Exp. January 30, 2018 | ||
My commission expires: | ||
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF _______________ | ) | |
) | ss.: | |
COUNTY OF _______________ | ) |
On this 17th day of September 2015, before me, a notary public in and for said State, personally appeared Jerry Hirschkorn, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President of LNR Partners, LLC, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Samantha Rae Gentile | ||
Notary Public | ||
[SEAL] | ||
SAMANTHA RAE GENTILE Notary Public, State of New York Registration # 01GE6293616 Qualified In Nassau County Commission Expires December 16, 2017 | ||
My commission expires: | ||
12/16/17 |
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF CONNECTICUT | ) | |
) | ss.: | |
COUNTY OF Fairfield | ) |
On this 21st day of September 2015, before me, a notary public in and for said State, personally appeared James Callahan, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Executive Director of Pentalpha Surveillance LLC, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
/s/ Melonie S. Williams | ||
Notary Public | ||
[SEAL] | ||
MELONIE S. WILLIAMS Notary Public Connecticut My Commission Expires July 31, 2019 | ||
My commission expires: | ||
7/31/2019 |
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF ILLINOIS | ) | |
) | ss.: | |
COUNTY OF COOK | ) |
On this 17th day of September 2015, before me, a notary public in and for said State, personally appeared Christopher J. Nuxoll, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President of U.S. Bank National Association, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Vicky Eaton | ||
Notary Public | ||
[SEAL] | ||
My commission expires: | OFFICIAL SEAL VICKY EATON Notary Public – State of Illinois My Commission Expires Apr 17, 2019 | |
4/17/19 |
BACM 2015-UBS7 – Pooling and Servicing Agreement
STATE OF MINNESOTA | ) | |
) | ss.: | |
COUNTY OF RAMSEY | ) |
On this 22nd day of September 2015, before me, a notary public in and for said State, personally appeared Kevin E. Brown, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Assistant Vice President of U.S. Bank, N.A., and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ C So Channara | ||
Notary Public | ||
[SEAL] | ||
C SO CHANNARA NOTARY PUBLIC - MINNESOTA MY COMMISSION EXPIRES 1/31/2017 | ||
My commission expires: | ||
BACM 2015-UBS7 – Pooling and Servicing Agreement
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.,
AS DEPOSITOR,
MIDLAND LOAN SERVICES, A DIVISION OF PNC
BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
LNR PARTNERS, LLC,
AS SPECIAL SERVICER,
PENTALPHA SURVEILLANCE LLC,
AS TRUST ADVISOR,
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE, CERTIFICATE ADMINISTRATOR, CERTIFICATE REGISTRAR,
AUTHENTICATING AGENT AND CUSTODIAN
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF September 1, 2015
BANK OF AMERICA
MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-UBS7
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-1-1 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: 1.608% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING DATE: $38,700,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE: $38,700,000
NO. A-1-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-1-2 |
represents an interest in the Class A-1 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-1 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-1 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-1-3 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-1-4 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-1-5 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-1-6 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-1-7 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-1-8 |
EXHIBIT A-2
[FORM OF CLASS A-SB CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-2-1 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: 3.429% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-SB CERTIFICATES AS OF THE CLOSING DATE: $62,400,000
CERTIFICATE BALANCE OF THIS CLASS A-SB CERTIFICATE AS OF THE CLOSING DATE: $62,400,000
NO. A-SB-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-2-2 |
represents an interest in the Class A-SB Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-SB Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-SB Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-2-3 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-2-4 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-2-5 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-2-6 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-2-7 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-2-8 |
EXHIBIT A-3
[FORM OF CLASS A-3 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-3-1 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: 3.441% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3 CERTIFICATES AS OF THE CLOSING DATE: $200,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE AS OF THE CLOSING DATE: $200,000,000
NO. A-3-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-3 Certificates equal to the quotient expressed as a
A-3-2 |
percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-3 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-3 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-3-3 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-3-4 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-3-5 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-3-6 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-3-7 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-3-8 |
EXHIBIT A-4
[FORM OF CLASS A-4 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-4-1 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: 3.705% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4 CERTIFICATES AS OF THE CLOSING DATE: $228,996,000
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE AS OF THE CLOSING DATE: $228,996,000
NO. A-4-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-4-2 |
represents an interest in the Class A-4 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-4 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-4 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-4-3 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-4-4 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-4-5 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-4-6 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-4-7 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-4-8 |
EXHIBIT A-5
[FORM OF CLASS X-A CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS MULTIPLE “REGULAR INTERESTS” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
A-5-1 |
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-5-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-A CERTIFICATES AS OF THE CLOSING DATE: $530,096,000
NOTIONAL AMOUNT OF THIS CLASS X-A CERTIFICATE AS OF THE CLOSING DATE: $[_]
NO. X-A-[_] |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS X-A CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-5-3 |
represents an interest in the Class X-A Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-A Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-A Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to
A-5-4 |
the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-A Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the
A-5-5 |
Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-5-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-A CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-5-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-5-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-5-9 |
EXHIBIT A-6
[FORM OF CLASS X-B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
A-6-1 |
RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-6-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-B CERTIFICATES AS OF THE CLOSING DATE: $50,170,000
NOTIONAL AMOUNT OF THIS CLASS X-B CERTIFICATE AS OF THE CLOSING DATE: $50,170,000
NO. X-B-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS X-B CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-6-3 |
represents an interest in the Class X-B Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-B Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-B Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to
A-6-4 |
the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-B Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the
A-6-5 |
Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-6-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-6-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-6-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution: Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-6-9 |
EXHIBIT A-7
[FORM OF CLASS X-D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
A-7-1 |
RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-7-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-D CERTIFICATES AS OF THE CLOSING DATE: $39,879,000
NOTIONAL AMOUNT OF THIS CLASS X-D CERTIFICATE AS OF THE CLOSING DATE: $39,879,000
NO. X-D-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS X-D CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-7-3 |
represents an interest in the Class X-D Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-D Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-D Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to
A-7-4 |
the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-D Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the
A-7-5 |
Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-7-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-7-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-7-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution: Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-7-9 |
EXHIBIT A-8
[FORM OF CLASS A-S CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-8-1 |
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-8-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: LESSER OF 3.989% PER ANNUM AND THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-S CERTIFICATES AS OF THE CLOSING DATE: $50,170,000
CERTIFICATE BALANCE OF THIS CLASS A-S CERTIFICATE AS OF THE CLOSING DATE: $50,170,000
NO. A-S-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS A-S CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-8-3 |
represents an interest in the Class A-S Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-S Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-S Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-8-4 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-8-5 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-8-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-S CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-8-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-8-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution: Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-8-9 |
EXHIBIT A-9
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
A-9-1 |
RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-9-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING DATE: $50,169,000
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE: $50,169,000
NO. B-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-9-3 |
represents an interest in the Class B Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class B Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class B Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-9-4 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-9-5 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-9-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-9-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-9-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-9-9 |
EXHIBIT A-10
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
A-10-1 |
RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-10-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING DATE: $33,010,000
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE: $33,010,000
NO. C-1 |
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______] |
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-10-3 |
represents an interest in the Class C Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class C Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class C Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-10-4 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-10-5 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-10-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-10-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-10-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-10-9 |
EXHIBIT A-11
[FORM OF CLASS D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
A-11-1 |
RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-11-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING DATE: $39,879,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE: $39,879,000
NO. D-1
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_______]
|
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-11-3 |
represents an interest in the Class D Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class D Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class D Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
Excess Trust Advisor Expenses shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates (other than the Control Eligible Certificates) in the manner set forth in the Pooling and Servicing Agreement. Any Excess Trust Advisor Expenses allocated to any such Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.
A-11-4 |
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service
A-11-5 |
charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-11-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-11-7 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-11-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-11-9 |
EXHIBIT A-12
[FORM OF CLASS X-E CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE
A-12-1 |
TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-12-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-E CERTIFICATES AS OF THE CLOSING DATE: $17,038,000
NOTIONAL AMOUNT OF THIS CLASS X-E CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-E-[_]
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MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP NO. [_______]1 [_______]2 [_______]3
ISIN NO. [_______]4 [_______]5 [_______]6
COMMON CODE NO. [_______]
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CLASS X-E CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
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Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-E Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-E Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-E Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
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Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of
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this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-E Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
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As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the
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Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
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- - -
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as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
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UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT A-13
[FORM OF CLASS X-FG CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR
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RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS MULTIPLE “REGULAR INTERESTS” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-FG CERTIFICATES AS OF THE CLOSING DATE: $15,146,000
NOTIONAL AMOUNT OF THIS CLASS X-FG CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-FG-[_]
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MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]1 [_______]2 [_______]3
ISIN NO. [_______]4 [_______]5 [_______]6
COMMON CODE NO. [_______]
|
CLASS X-FG CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
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Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-FG Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-FG Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-FG Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
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Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of
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this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-FG Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
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As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.].
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the
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Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-FG CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT A-14
[FORM OF CLASS X-NR CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR
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RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF ANY PRINCIPAL DISTRIBUTIONS, COLLATERAL SUPPORT DEFICITS AND/OR EXCESS TRUST ADVISOR EXPENSES ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-14-2 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-NR CERTIFICATES AS OF THE CLOSING DATE: $21,772,331
NOTIONAL AMOUNT OF THIS CLASS X-NR CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-NR-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]1 [_______]2 [_______]3
ISIN NO. [_______]4 [_______]5 [_______]6
COMMON CODE NO. [_______]
|
CLASS X-NR CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
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Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-NR Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-NR Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-NR Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
A-14-4 |
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of
A-14-5 |
this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-NR Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
A-14-6 |
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the
A-14-7 |
Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-14-8 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-NR CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-14-9 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-14-10 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-14-11 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-14-12 |
EXHIBIT A-15
[FORM OF CLASS E CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL
A-15-1 |
SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
A-15-2 |
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-15-3 |
BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE LESS 1.250%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING DATE: $17,038,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. E-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING
CUSIP NO. [_______]1 [_______]2 [_______]3
ISIN NO. [_______]4 [_______]5 [_______]6
COMMON CODE NO. [_______]
|
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
A-15-4 |
Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class E Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class E Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class E Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
A-15-5 |
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
A-15-6 |
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
A-15-7 |
Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described
A-15-8 |
above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-15-9 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-15-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-15-11 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-15-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-15-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-15-14 |
EXHIBIT A-16
[FORM OF CLASS F CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL
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SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN OR OTHER PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN OR OTHER PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
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ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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BANK OF AMERICA MERRILL LYNCH COMMERCIAL
MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE LESS 1.250%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING DATE: $7,573,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. F-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP NO. [_______]1 [_______]2 [_______]3
ISIN NO. [_______]4 [_______]5 [_______]6
COMMON CODE NO. [_______]
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CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
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Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class F Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class F Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class F Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
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Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
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[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
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Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described
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above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
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AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the
Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of
this Global Certificate have been made:
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EXHIBIT A-17
[FORM OF CLASS G CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL
A-17-1 |
SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN OR OTHER PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN OR OTHER PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS
ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
A-17-2 |
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-17-3 |
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE LESS 1.250%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING DATE: $7,573,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. G-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP
NO. [_______]1
ISIN
NO. [_______]4
COMMON CODE NO. [_______] |
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
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Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class G Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class G Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class G Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
A-17-5 |
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
A-17-6 |
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
A-17-7 |
Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described
A-17-8 |
above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-17-9 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-17-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-17-11 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants
with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to
transfer the said Certificate in the Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-17-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-17-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-17-14 |
EXHIBIT A-18
[FORM OF CLASS H CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL
A-18-1 |
SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN OR OTHER PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN OR OTHER PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
A-18-2 |
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-18-3 |
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE LESS 1.250%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING DATE: $21,772,331
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. H-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP
NO. [_______]1 [_______]3
ISIN
NO. [_______]4 [_______]6
COMMON CODE NO. [_______] |
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special
1 [For Rule 144A Global Certificates]
2 [For Regulation S Global Certificates]
3 [For Definitive Certificates]
4 [For Rule 144A Global Certificates]
5 [For Regulation S Global Certificates]
6 [For Definitive Certificates]
A-18-4 |
Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class H Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class H Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class H Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
A-18-5 |
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
A-18-6 |
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
A-18-7 |
Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described
A-18-8 |
above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-18-9 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-18-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-18-11 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants
with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to
transfer the said Certificate in the Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-18-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-18-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-18-14 |
EXHIBIT A-19
[FORM OF CLASS V CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, OR (2) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW
A-19-1 |
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN CERTAIN EXCESS INTEREST AS FURTHER DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
A-19-2 |
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PERCENTAGE INTEREST OF THIS CLASS V CERTIFICATE: [_]%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
NO. V-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_____] |
CLASS V CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [_____] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-19-3 |
represents an interest in the Class V Certificates equal to the percentage interest specified on the face hereof.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement in respect of Excess Interest. Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement will be made by or on behalf of the Certificate Administrator by check mailed to the Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
A-19-4 |
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
The Class V Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 1% in excess thereof.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No transfer of a Class V Certificate may be made to a Person that is not a Qualified Institutional Buyer or an Institutional Accredited Investor. No transfer of a Class V Certificate may be made in book-entry form. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and
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Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan. Each Person who acquires any Class V Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and
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Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS V CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-19-8 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants
with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to
transfer the said Certificate in the Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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EXHIBIT A-20
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
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THIS CERTIFICATE REPRESENTS “RESIDUAL INTERESTS” IN MULTIPLE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS MULTIPLE “NONECONOMIC RESIDUAL INTERESTS,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.
A-20-2 |
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7
PERCENTAGE INTEREST OF THIS CLASS R CERTIFICATE: [_]%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SEPTEMBER 1, 2015
CUT-OFF DATE: SEPTEMBER 1, 2015
CLOSING DATE: SEPTEMBER 24, 2015
FIRST DISTRIBUTION DATE: OCTOBER 19, 2015
NO. R-[_]
|
MASTER SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: LNR PARTNERS, LLC
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
CUSIP NO. [_______]
ISIN NO. [_______]
COMMON CODE NO. [_____] |
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
THIS CERTIFIES THAT [_____] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate
A-20-3 |
represents an interest in the Class R Certificates equal to the percentage interest specified on the face hereof.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement, including a distribution upon termination of the Pooling and Servicing Agreement and the respective REMICs created thereby of the amounts which remain on deposit in the Distribution Account after payment to the holders of all other Certificates of all amounts set forth in the Pooling and Servicing Agreement. Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on October 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement will be made by or on behalf of the Certificate Administrator by check mailed to the Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.
A-20-4 |
Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
The Class R Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 1% in excess thereof.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached as Exhibit D-2A to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No transfer of a Class R Certificate may be made in book-entry form or
A-20-5 |
otherwise to a Person that is not a Qualified Institutional Buyer, and any certificate and/or opinion of counsel delivered pursuant to the preceding sentence must reflect that the Transferee of a Class R Certificate is a Qualified Institutional Buyer. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of a Class R Certificate or any interest therein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan. Each Person who acquires any Class R Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A to the Pooling and Servicing Agreement that includes a certification to the effect that it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Administrator under clause (F) of Section 3.3(e) of the Pooling and Servicing Agreement to deliver payments to a Person other than such Person and to have irrevocably authorized the Certificate Registrar under clause (G) of Section 3.3(e) of the Pooling and Servicing Agreement to negotiate the terms of any mandatory sale and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of such person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Permitted Transferee and (2) each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Qualified Institutional Buyer and shall promptly notify the
A-20-6 |
Certificate Registrar of any change or impending change in its status as a Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Class R Certificate shall be registered until the Certificate Registrar receives, an affidavit and agreement substantially in the form attached to the Pooling and Servicing Agreement as Exhibit E-1 (a “Transfer Affidavit and Agreement”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee or is not a United States Tax Person, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a Class R Certificate shall agree (1) to require a Transfer Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Class R Certificate and (2) not to transfer its Ownership Interest in such Class R Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached to the Pooling and Servicing Agreement as Exhibit E-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate that is a “pass-through interest holder” within the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Class R Certificate on behalf of a “pass-through interest holder”, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice of its status as such immediately upon holding or acquiring such Ownership Interest in a Class R Certificate.
(F) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the provisions of Section 3.3(e) of the Pooling and Servicing Agreement or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, then the last preceding Holder of such Class R Certificate that was in compliance with the provisions of Section 3.3(e) of the Pooling and Servicing Agreement shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. None of the Trustee, the Custodian, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar or the Certificate Administrator shall be under any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by Section 3.3(e) of the Pooling and Servicing Agreement or for making any payments due on such Certificate to the Holder thereof or for taking any other action with respect to such Holder under the provisions of the Pooling and Servicing Agreement.
A-20-7 |
(G) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in Section 3.3(e) of the Pooling and Servicing Agreement, or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, and to the extent that the retroactive restoration of the rights and obligations of the prior Holder of such Class R Certificate as set forth in clause (F) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Class R Certificate, but not the obligation, to sell or cause to be sold such Class R Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such noncomplying Holder shall promptly endorse and deliver such Class R Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by the Certificate Registrar to such noncomplying Holder. The terms and conditions of any sale under this clause (G) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
“Permitted Transferee” means any Transferee other than: (a) a Disqualified Organization; (b) any other Person identified in an Opinion of Counsel delivered to the Certificate Administrator and the Trustee to the effect that the transfer of an ownership interest in any Class R Certificate to such Person may cause any REMIC Pool to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a non-United States Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a non-United States Tax Person or (e) a United States Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other United States Tax Person.
“United States Tax Person” means a citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, an estate whose income is subject to United States federal income tax regardless of the source of its income, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as United States Tax Persons). A person not described in the immediately preceding sentence shall nevertheless be treated as a United States Tax Person if (i) in the hands of such person the income from a Class R Certificate is effectively connected with the conduct of a trade or business within the United States and such person has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or other prescribed form or (ii) if in connection with the proposed transfer of a Class R Certificate, the transferor provides an opinion of counsel to the Certificate Registrar to the effect that such
A-20-8 |
transfer will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.
“Disqualified Organization” means any of (i) the United States, any State or any political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization or any agency or instrumentality of either of the foregoing, (iii) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code, and (v) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel that the holding of an ownership interest in a Class R Certificate by such Person may cause (A) any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that the Certificates are outstanding, or (B) any of REMIC I, REMIC II or REMIC III or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.
The provisions of Section 3.3(e) of the Pooling and Servicing Agreement may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Master Servicer, the Depositor, an Opinion of Counsel (subject to Section 5.7 of the Pooling and Servicing Agreement, a copy of which shall be provided to each Rating Agency), in form and substance satisfactory to the Trustee, the Certificate Registrar and the Depositor, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC Pool to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused by the Transfer of any Class R Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the prospective Transferee to be subject to a tax caused by the Transfer of a Class R Certificate to a Person which is not a Permitted Transferee.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator,
A-20-9 |
the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-20-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
U.S. BANK NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: September 24, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. BANK NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
A-20-11 |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants
with rights of survivorship
|
UNIF GIFT MIN ACT ..................................... Custodian (Cust) Under Uniform Gifts to Minors
Act ............................................................................ (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to
transfer the said Certificate in the Certificate Register of the |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. | ||||
SIGNATURE GUARANTEED | ||||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-20-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _________________ ______________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-20-13 |
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
September 24, 2015
To The parties listed on Schedule 1 hereto
Re: Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) relating to Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that: (a) all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan and (c) each Mortgage Note has been endorsed as provided in clause (i) of the definition of “Mortgage File” of the Pooling and Servicing Agreement. The Custodian on behalf of the Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any such documents contained in each Mortgage File of any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness or suitability of any such Mortgage Loan. The Custodian’s review of the Mortgage Files and its certification with respect thereto shall not be deemed to constitute “due diligence services” or a “third party due diligence report” as such terms are defined in Rule 17g-10 and 15Ga-2, respectively, promulgated by the Securities and Exchange Commission pursuant to the Securities and Exchange Act of 1934, as amended.
The Custodian on behalf of the Trustee acknowledges receipt of notice that the Depositor has granted to the Trustee for the benefit of the Certificateholders a security interest in all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein and not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement. This Certificate is subject in all respects to the terms of the Pooling and Servicing Agreement.
U.S. Bank National Association, not in its individual capacity but solely as Custodian | ||
By: | ||
Name: | ||
Title: |
B-1-1 |
Schedule 1
Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch, III
Facsimile number: (646) 855-5044
With a copy to:
W. Todd Stillerman, Esq.
Assistant General Counsel and Director
Bank of America Corporation
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Facsimile number: (404) 736-2127
And with a copy to:
Henry A. LaBrun, Esq.
Cadwalader, Wickersham & Taft LLP
227 West Trade Street
Charlotte, North Carolina 28202
Facsimile number: (704) 348-5200
UBS Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: David Schell
Facsimile: (212) 821-2943
With a copy to:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Henry Chung
Facsimile: (212) 821-2943
And with a copy to:
UBS AG
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
B-1-2 |
Bank of America, National Association
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Facsimile number: (646) 855-5044
With a copy to:
W. Todd Stillerman, Esq., Assistant General Counsel
Bank of America Corporation
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Facsimile number: (404) 736-2127
And with a copy to:
Henry A. LaBrun, Esq.
Cadwalader, Wickersham & Taft LLP
227 West Trade Street, 24th Floor
Charlotte, North Carolina 28202
Facsimile number: (704) 348-5200
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President-Division Head
Facsimile: (913) 253-9001
With a copy to:
Stinson Leonard Street LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106-2150
Attention: Kenda K. Tomes
Facsimile: (816) 412-9338
LNR Partners, LLC
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw
Facsimile: (305) 695-5601
Email: tnealon@lnrproperty.com, srivers@lnrproperty.com and jwarshaw@lnrproperty.com
B-1-3 |
Pentalpha Surveillance LLC
375 N. French Road, Suite 100
Amherst, New York 14228
Attention: Don Simon, Chief Operating Officer
E-mail: don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com
With a copy to:
Bass, Berry & Sims PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Attention: Jay Knight
E-mail: jknight@bassberry.com
Ellington Management Group, LLC
53 Forest Avenue
Old Greenwich, Connecticut 06870
Attention: Leo Huang
With a copy to:
Ellington Management Group, LLC
53 Forest Avenue
Old Greenwich, Connecticut 06870
Attention: General Counsel
U.S. Bank National Association
190 South LaSalle Street, 7th Floor
MK-IL-SL7C
Chicago, Illinois 60603
Attention: BACM 2015-UBS7
Facsimile: (866) 807-8670
B-1-4 |
SCHEDULE OF EXCEPTIONS
[_____]
B-1-5 |
EXHIBIT B-2
FORM OF FINAL CERTIFICATION
__________, 2015
To: The parties on Schedule 1 attached hereto
Re: Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) relating to Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that: (a) all documents specified in clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” required to be included in the Mortgage File (to the extent required to be delivered pursuant to the Pooling and Servicing Agreement), and with respect to all documents specified in the other clauses of the definition of “Mortgage File” (to the extent known by a Responsible Officer of the Custodian on behalf of the Trustee to be required pursuant to the Pooling and Servicing Agreement), are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (c) based on its examination and only as to the Mortgage Note and the Mortgage, the street address (excluding zip code) of the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File, and (d) each Mortgage Note has been endorsed. The Custodian on behalf of the Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any of the documents contained in each Mortgage File of any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness or suitability of any such Mortgage Loan. The Custodian’s review of the Mortgage Files and its certification with respect thereto shall not be deemed to constitute “due diligence services” or a “third party due diligence report” as such terms are defined in Rule 17g-10 and 15Ga-2, respectively, promulgated by the Securities and Exchange Commission pursuant to the Securities and Exchange Act of 1934, as amended.
The Custodian on behalf of the Trustee acknowledges receipt of notice that the Depositor has granted to the Trustee for the benefit of the Certificateholders a security interest in all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement. This Certificate is qualified in all
respects by the terms of the Pooling and Servicing Agreement including but not limited to Section 2.2 thereof.
U.S. Bank National Association, not in its individual capacity but solely as Custodian | ||
By: | ||
Name: | ||
Title: |
B-2-2 |
Schedule 1
Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Facsimile number: (646) 855-5044
With a copy to:
W. Todd Stillerman, Esq.
Assistant General Counsel and Director
Bank of America Corporation
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Facsimile number: (404) 736-2127
And with a copy to:
Henry A. LaBrun, Esq.
Cadwalader, Wickersham & Taft LLP
227 West Trade Street
Charlotte, North Carolina 28202
Facsimile number: (704) 348-5200
UBS Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: David Schell
Facsimile: (212) 821-2943
With a copy to:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Henry Chung
Facsimile: (212) 821-2943
And with a copy to:
UBS AG
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
B-2-3 |
Bank of America, National Association
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Facsimile number: (646) 855-5044
With a copy to:
W. Todd Stillerman, Esq., Assistant General Counsel
Bank of America Corporation
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Facsimile number: (404) 736-2127
And with a copy to:
Henry A. LaBrun, Esq.
Cadwalader, Wickersham & Taft LLP
227 West Trade Street, 24th Floor
Charlotte, North Carolina 28202
Facsimile number: (704) 348-5200
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President-Division Head
Facsimile: (913) 253-9001
With a copy to:
Stinson Leonard Street LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106-2150
Attention: Kenda K. Tomes
Facsimile: (816) 412-9338
LNR Partners, LLC
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw
Facsimile: (305) 695-5601
Email: tnealon@lnrproperty.com, srivers@lnrproperty.com and jwarshaw@lnrproperty.com
B-2-4 |
Pentalpha Surveillance LLC
375 N. French Road, Suite 100
Amherst, New York 14228
Attention: Don Simon, Chief Operating Officer
E-mail: don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com
With a copy to:
Bass, Berry & Sims PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Attention: Jay Knight
E-mail: jknight@bassberry.com
Ellington Management Group, LLC
53 Forest Avenue
Old Greenwich, Connecticut 06870
Attention: Leo Huang
With a copy to:
Ellington Management Group, LLC
53 Forest Avenue
Old Greenwich, Connecticut 06870
Attention: General Counsel
U.S. Bank National Association
190 South LaSalle Street, 7th Floor
MK-IL-SL7C
Chicago, Illinois 60603
Attention: BACM 2015-UBS7
Facsimile: (866) 807-8670
B-2-5 |
SCHEDULE OF EXCEPTIONS
[_____]
B-2-6 |
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: U.S.
Bank National Association, as Custodian
1133 Rankin Street, Suite 100
St. Paul, Minnesota 55116
Attn: Document Custody Services – BACM 2015-UBS7
cc: U.S.
Bank National Association, as Trustee
190 S. LaSalle Street, 7th Floor, Mail Code MK-IL-SL7C
Chicago, Illinois 60603
Attn: BACM 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
DATE: _________________
In connection with the administration of the Mortgage Loans held by you as Custodian on behalf of the Trustee under the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction, the undersigned hereby requests a release of the Trust Mortgage File held by you as Custodian on behalf of the Trustee with respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor’s Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage
Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts received in connection with the Mortgage Loan have been or will
be, following the [Master] [Special] Servicer’s release of the Trust Mortgage File, credited to the Collection Account or
the Distribution Account, as applicable, pursuant to the Pooling and Servicing Agreement.)
_____ 2. Mortgage
Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase Price has been credited to the Collection Account or the Distribution
Account, as applicable, pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
C-1-1 |
_____ 4. Mortgage
Loan replaced.
(The [Master] [Special] Servicer hereby certifies that a Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Trust Mortgage File pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ | 6. | Other. (Describe) | |
The undersigned acknowledges that once received, the above Trust Mortgage File will be held by the undersigned in accordance with the provisions of the Pooling and Servicing Agreement and will be returned to you, except if the Mortgage Loan has been paid in full, repurchased or replaced by a Qualifying Substitute Mortgage Loan (in which case the Trust Mortgage File will be retained by us permanently), when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer] | ||
By: | ||
Name: | ||
Title: |
C-1-2 |
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association,
as Certificate Registrar
111 Fillmore Avenue
St. Paul, Minnesota 55107
Attention: Bondholder Services – Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of a Class ___ Certificate having an initial Certificate Balance or Notional Amount as of ________ (the “Settlement Date”) of $__________ (the “Transferred Certificate”). The Certificates were issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of September 1, 2015 and executed in connection with the above-referenced transaction. All terms used herein and not otherwise defined shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate with the full right to transfer such Certificate free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of any Certificate under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of any Certificate a violation of Section 5 of the Securities Act or any state securities laws, or
D-1-1 |
would require registration or qualification of any Certificate, or any offer or sale thereof, pursuant to the Securities Act or any state securities laws.
Very truly yours, | ||
(Transferor) | ||
By: | ||
Name: | ||
Title: |
D-1-2 |
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association,
as Certificate Registrar
111 Fillmore Avenue
St. Paul, Minnesota 55107
Attention: Bondholder Services – Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class ______ Certificates having an initial Certificate Balance or Notional Amount as of _________ (the “Settlement Date”) of $__________ (the “Transferred Certificates”). The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a “qualified institutional buyer” (a “Qualified Institutional Buyer”) as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), and has completed one of the forms of certification to that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the Transferred Certificates is being made in reliance on Rule 144A. The Transferee is acquiring the Transferred Certificates for its own account or for the account of a Qualified Institutional Buyer, and understands that such Transferred Certificates may be resold, pledged or transferred only (i) to a person reasonably believed to be a Qualified Institutional Buyer that purchases for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Transferred Certificates and distributions thereon, (c) the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing
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Agreement, (e) any credit enhancement mechanism associated with the Transferred Certificates and (f) all related matters that it has requested.
3. Check one of the following:
___ The Transferee is a “U.S. Person” and has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).
___ The Transferee is an institution that is not a “U.S. Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Administrator (or its agent) with respect to distributions to be made on the Transferred Certificates. The Transferee has attached hereto either (i) a duly executed IRS Form W-8BEN, IRS Form W-8BEN-E (or successor forms), which identifies the Transferee as the beneficial owner of the Transferred Certificates and states that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which identify the Transferee as the beneficial owner of the Transferred Certificates and states that interest and original issue discount on the Transferred Certificates is, or is expected to be, effectively connected with a U.S. trade or business. The Transferee agrees to provide to the Certificate Administrator (or its agent) updated IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable successor IRS forms, or such other certifications as the Certificate Administrator (or its agent) may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Administrator (or its agent).
For this purpose, “U.S. Person” means a citizen or resident of the United States for U.S. federal income tax purposes, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more United States fiduciaries have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on October 20, 1996 that have elected to be treated as U.S. Persons).
The Depositor, the Trustee and the Certificate Administrator are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
4. If the Transferred Certificates are Class V or Class R Certificates, then the Transferee (A) is not an employee benefit plan or other retirement arrangement, including an individual retirement account or annuity, a Keogh plan or a collective investment fund
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or separate account, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, an insurance company general account, that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
5. If the Transferred Certificates are Non-Investment Grade Certificates (other than Class V or Class R Certificates), then check the following paragraph that is applicable:
___ The Transferee (A) is not a Plan (as defined in paragraph 4 above), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
___ The Transferee has provided the Certificate Registrar with a certification of facts and an Opinion of Counsel (copies of which are attached hereto) to the effect that the transfer of the Transferred Certificates from the Transferor to the Transferee will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Registrar to any obligation in addition to those undertaken in the Pooling and Servicing Agreement.
___ The purchase and holding of such Certificate or interest therein by such person qualifies for the exemptive relief available under Sections I and III of Prohibited Transaction Class Exemption 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Very truly yours, | ||
(Transferee) | ||
By: | ||
Name: | ||
Title: |
D-2A-3 |
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and U.S. Bank National Association, as Certificate Registrar, with respect to the commercial mortgage pass-through certificate being transferred (the “Transferred Certificates”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificate (the “Transferee”).
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”) because (i) the Transferee owned and/or invested on a discretionary basis $_____________________1 in securities (other than the excluded securities referred to below) as of [specific date since the close of the Transferee’s most recent fiscal year][the end of the Transferee’s most recent fiscal year] (such amount being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking institution organized under the laws of any State, U.S. territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Transferred Certificate in the case of a U.S. bank, and not more than 18 months preceding such date of sale for a foreign bank or equivalent institution.
1 Transferee must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Transferee is a dealer, and, in that case, Transferee must own and/or invest on a discretionary basis at least $10,000,000 in securities.
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___ Savings and Loan. The Transferee (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Transferred Certificate in the case of a U.S. savings and loan association, and not more than 18 months preceding such date of sale for a foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a cross-reference to the paragraph and subparagraph under subsection (a) (1) of Rule 144A pursuant to which it qualifies. Note that registered investment companies should complete Annex 2 rather than this Annex 1.)
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3. The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee, (ii) securities that are part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of such securities to the Transferee, unless the Transferee reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities were valued at market. Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction. However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ | |
Yes No | Will the Transferee be purchasing the Transferred Certificate only for the Transferee’s own account |
6. If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Transferee’s purchase of the Transferred Certificates will constitute a reaffirmation of this certification as of the date of such purchase. In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties any updated annual financial statements that become available on or before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to which the Transferred Certificates were issued.
D-2A-6 |
Print Name of Transferee | ||
By: | ||
Name: | ||
Title: | ||
Date: |
D-2A-7 |
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and U.S. Bank National Association, as Certificate Registrar, with respect to the mortgage pass-through certificate being transferred (the “Transferred Certificates”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificates (the “Transferee”) or, if the Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”) because the Transferee is part of a Family of Investment Companies (as defined below), is an executive officer of the investment adviser (the “Adviser”).
2. The Transferee is a “qualified institutional buyer” as defined in Rule 144A because (i) the Transferee is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Transferee alone owned and/or invested on a discretionary basis, or the Transferee’s Family of Investment Companies owned, at least $100,000,000 in securities (other than the excluded securities referred to below) as of [specific date since the close of the Transferee’s most recent fiscal year][the end of the Transferee’s most recent fiscal year]. For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities was used, unless the Transferee or any member of the Transferee’s Family of Investment Companies, as the case may be, reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis $___________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in the aggregate $______________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term “Family of Investment Companies” as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other).
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4. The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, or owned by the Transferee’s Family of Investment Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A.
___ ___ | |
Yes No | Will the Transferee be purchasing the Transferred Certificates only for the Transferee’s own account |
6. If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice, the Transferee’s purchase of the Transferred Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or Adviser | ||
By: | ||
Name: | ||
Title: | ||
IF AN ADVISER: | ||
Print Name of Transferee | ||
Date: |
D-2A-9 |
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association,
as Certificate Registrar
111 Fillmore Avenue
St. Paul, Minnesota 55107
Attention: Bondholder Services – Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _______________________ (the “Transferor”) to _______________________________ (the “Transferee”) of Class ___ Certificates having an initial Certificate Balance or Notional Amount as of ________ (the “Settlement Date”) of $__________ (the “Transferred Certificates”). The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to which the Transferred Certificates belong has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee or the Certificate Registrar is obligated so to register or qualify the Class of Certificates to which the Transferred Certificates belong, and (c) no Transferred Certificate may be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and the Certificate Registrar has received either: (A) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective transferee substantially in the form attached
D-2B-1 |
either as Exhibit D-2A or, except in the case of Class R Certificates, as Exhibit D-2B to the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory to the Certificate Registrar with respect to the availability of such exemption from registration under the Securities Act, together with copies of the written certification(s) from the transferor and/or transferee setting forth the facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer any Transferred Certificate except in compliance with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) (EXCEPT WITH RESPECT TO THE CLASS V AND CLASS R CERTIFICATES) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) (EXCEPT WITH RESPECT TO THE CLASS R CERTIFICATES) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
5. The Transferee understands that each Transferred Certificate (if it is a Non-Investment Grade Certificate (other than a Class V or Class R Certificate)) will bear the following legend:
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE
D-2B-2 |
INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
6. The Transferee understands that each Transferred Certificate (if it is a Class V or Class R Certificate) will bear the following legends:
FOR THE CLASS V AND CLASS R CERTIFICATES: THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE, LOCAL OR NON-U.S. LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
FOR THE CLASS R CERTIFICATES: THIS CERTIFICATE REPRESENTS “RESIDUAL INTERESTS” IN MULTIPLE “REAL ESTATE MORTGAGE INVESTMENT
D-2B-3 |
CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS MULTIPLE “NONECONOMIC RESIDUAL INTERESTS,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.
7. Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action with respect to any Certificate, any interest in any Certificate or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Transferred Certificates under the Securities Act, would render the disposition of the Transferred Certificates a violation
D-2B-4 |
of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Transferred Certificates pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to any Certificate, any interest in any Certificate or any other similar security.
8. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Transferred Certificates and distributions thereon, (c) the Pooling and Servicing Agreement and the Trust created pursuant thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e) any credit enhancement mechanism associated with the Transferred Certificates, and (f) all related matters, that it has requested.
9. The Transferee is an “accredited investor” as defined in any of paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Transferred Certificate; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.
10. Check one of the following:
___ The Transferee is a “U.S. Person” and has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).
___ The Transferee is an institution that is not a “U.S. Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Administrator (or its agent) with respect to distributions to be made on the Transferred Certificates. The Transferee has attached hereto either (i) a duly executed IRS Form W-8BEN, IRS Form W-8BEN-E (or successor forms), which identifies the Transferee as the beneficial owner of the Transferred Certificates and states that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which identify the Transferee as the beneficial owner of the Transferred Certificates and states that interest and original issue discount on the Transferred Certificates is, or is expected to be, effectively connected with a U.S. trade or business. The Transferee agrees to provide to the Certificate Administrator (or its agent) updated IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable successor IRS forms, or such other certifications as the Certificate Administrator (or its agent) may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Administrator (or its agent).
For this purpose, “U.S. Person” means a citizen or resident of the United States for U.S. federal income tax purposes, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United
D-2B-5 |
States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more United States fiduciaries have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on October 20, 1996 that have elected to be treated as U.S. Persons).
11. If the Transferred Certificates are Class V or Class R Certificates, then the Transferee (A) is not an employee benefit plan or other retirement arrangement, including an individual retirement account or annuity, a Keogh plan or a collective investment fund or separate account, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, an insurance company general account, that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable federal, state, local or non-U.S. law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
12. If the Transferred Certificates are Non-Investment Grade Certificates (other than Class V or Class R Certificates), then check the following paragraph that is applicable:
___ The Transferee (A) is not a Plan (as defined in paragraph 11 above), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
___ The Transferee has provided the Certificate Registrar with a certification of facts and an Opinion of Counsel (copies of which are attached hereto) to the effect that the transfer of the Transferred Certificates from the Transferor to the Transferee will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Registrar to any obligation in addition to those undertaken in the Pooling and Servicing Agreement.
___ The purchase and holding of such Certificate or interest therein by such person qualifies for the exemptive relief available under Sections I and III of Prohibited Transaction Class Exemption 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
The Depositor, the Trustee and the Certificate Administrator are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
D-2B-6 |
Very truly yours, | ||
(Transferee) | ||
By: | ||
Name: | ||
Title: |
D-2B-7 |
EXHIBIT D-3
FORM OF TRANSFER CERTIFICATE
TO AN INTEREST IN A RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 3.7(g) of the Pooling and Servicing Agreement)
U.S. Bank National Association,
as Certificate Registrar
111 Fillmore Avenue
St. Paul, Minnesota 55107
Attention: Bondholder Services – Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Class [___] |
Reference is hereby made to the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate initial [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Definitive Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Current Holder”). The Current Holder has requested an exchange or transfer of such Definitive Certificates for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) (the “Rule 144A Beneficial Interest”).
In connection with such request, and in respect of such Certificates, the Current Holder does hereby certify that [it is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and intends to hold the Rule 144A Beneficial Interest for its own account] [such Certificates are being transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Current Holder reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction].
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding.
D-3-1 |
This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Trust Advisor and the Initial Purchasers.
[Insert Name of Current Holder] | ||
By: | ||
Name: | ||
Title: |
Dated: _______
D-3-2 |
EXHIBIT E-1
FORM OF TRANSFEREE AFFIDAVIT AND AGREEMENT (CLASS R)
STATE OF | ) |
) ss.: | |
COUNTY OF | ) |
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the prospective transferee (the “Transferee”) of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015- UBS7, Class R, evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”)), a ________________ duly organized and validly existing under the laws of ____________________, on behalf of which he/she makes this affidavit. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the pooling and servicing agreement pursuant to which the Residual Certificates were issued (the “Pooling and Servicing Agreement”).
2. The Transferee (i) is, and as of the date of transfer will be, a “Permitted Transferee” and will endeavor to remain a “Permitted Transferee” for so long as it holds the Residual Certificates, and (ii) is acquiring the Residual Certificates for its own account or for the account of another prospective transferee from which it has received an affidavit in substantially the same form as this affidavit.
3. The Transferee (i) is, and as of the date of transfer will be, a “Qualified Institutional Buyer” and will endeavor to remain a “Qualified Institutional Buyer” for so long as it holds the Residual Certificates, and (ii) is acquiring the Residual Certificates for its own account or for the account of another prospective transferee from which it has received an affidavit in substantially the same form as this affidavit. A “Qualified Institutional Buyer” is a qualified institutional buyer qualifying pursuant to Rule 144A under the Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on transfers of the Residual Certificates to “disqualified organizations” under the Code that applies to all transfers of the Residual Certificates; (ii) that such tax would be on the transferor or, if such transfer is through an agent (which Person includes a broker, nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable for the tax shall be relieved of liability for the tax if the transferee furnishes to such Person an affidavit that the transferee is a Permitted Transferee and, at the time of transfer, such Person does not have actual knowledge that the affidavit is false; and (iv) that the Residual Certificates may be a “noneconomic residual interest” within the meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a “noneconomic residual interest” will remain liable for any taxes due
E-1-1 |
with respect to the income on such residual interest, unless no significant purpose of the transfer is to enable the transferor to impede the assessment or collection of tax.
5. The Transferee is aware of the tax imposed on a “pass-through entity” holding the Residual Certificates if at any time during the taxable year of the pass-through entity a non-Permitted Transferee is the record holder of an interest in such entity. (For this purpose, a “pass-through entity” includes a regulated investment company, a real estate investment trust or common trust fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not register any transfer of the Residual Certificates by the Transferee unless the Transferee’s transferee, or such transferee’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Transferee expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Residual Certificate will only be owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee’s taxpayer identification number is _________________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Residual Certificates (in particular, clause (F) of the first paragraph of Section 3.3(e) which authorizes the Certificate Administrator or the Trustee to deliver payments on the Residual Certificate to a Person other than the Transferee and clause (G) of the first paragraph of Section 3.3(e) which authorizes the Certificate Registrar to negotiate a mandatory sale of the Residual Certificates, in either case, in the event that the Transferee holds such Residual Certificates in violation of Section 3.3(e)); and the Transferee expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale of the Residual Certificates is or will be to impede the assessment or collection of any tax.
11. The Transferee hereby represents to and for the benefit of the transferor that the Transferee intends to pay any taxes associated with holding the Residual Certificates as they become due, fully understanding that it may incur tax liabilities in excess of any cash flows generated by the Residual Certificates.
12. The Transferee will not cause income with respect to the Residual Certificates to be attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of such proposed Transferee or any other United States Tax Person.
13. The Transferee will, in connection with any transfer that it makes of the Residual Certificates, deliver to the Certificate Registrar a representation letter substantially in
E-1-2 |
the form of Exhibit E-2 to the Pooling and Servicing Agreement in which it will represent and warrant, among other things, that it is not transferring the Residual Certificates to impede the assessment or collection of any tax and that it has at the time of such transfer conducted a reasonable investigation of the financial condition of the proposed transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a corporation, a partnership or other entity created or organized in, or under the laws of, the United States or any political subdivision thereof, or an estate or trust whose income from sources without the United States is includible in gross income for United States federal income tax purposes regardless of its connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any consideration paid to it to acquire the Class R Certificate in accordance with U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by computing present values using a discount rate equal to the Federal short-term rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Transferee.
[b] The transfer of the Class R Certificate complies with Treasury Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an “eligible corporation,” as defined in Treasury Regulation Section 1.860E-1(c)(6), as to which income from the Class R Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee’s two fiscal years preceding the Transferee’s fiscal year of the transfer, the Transferee had gross assets for financial reporting purposes (excluding any obligation of a person related to the Transferee within the meaning of Treasury Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a principal purpose for holding or acquiring that asset is to permit the Transferee to satisfy this Section 15(ii)) in excess of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to another “eligible corporation,” as defined in Treasury Regulation Section 1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury Regulation Section 1.860E-1(c)(5)(i), (ii) and (iii) and this Section 15 and the transfer is not to a foreign permanent establishment (within the meaning of an applicable income tax treaty) of such eligible corporation or any other arrangement by which the Class R Certificate will be at any time subject to net tax by a foreign country or possession of the United States; and
(iv) the Transferee determined the consideration paid to it to acquire the Class R Certificate, based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Transferee) that it has determined in good faith, is a reasonable amount.
E-1-3 |
16. The Transferee (i) is, and at the time of transfer will be, a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, and (ii) is not, and at the time of the transfer will not be, a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person. If the Transferee is a partnership, trust or disregarded entity for U.S. federal income tax purposes, then each person that may be allocated income from the Class R Certificate is, and at the time of transfer will be, a United States Tax Person.
17. The Transferee has historically paid its debts as they have come due and will continue to do so in the future.
E-1-4 |
IN WITNESS WHEREOF, the Transferee has caused this instrument to be executed on its behalf, pursuant to the authority of its Board of Directors, by its ____________________ and its corporate seal to be hereunto attached this ___ day of ___________, ____.
[NAME OF TRANSFEREE] | ||
By: | ||
[Name of Officer] | ||
[Title of Officer] |
E-1-5 |
Personally appeared before me the above named _________________, known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this ____ day of _______________ , 20 ___.
NOTARY PUBLIC |
COUNTY OF |
STATE OF |
My commission expires the ____ day of _______________ , 20 ___.
E-1-6 |
EXHIBIT E-2
FORM OF TRANSFEROR AFFIDAVIT AND AGREEMENT (CLASS R)
_______________, 20__
U.S. Bank National Association,
as Certificate Registrar
111 Fillmore Avenue
St. Paul, Minnesota 55107
Attention: Bondholder Services – Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class R Certificates evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a Transfer Affidavit and Agreement in the form attached to the Pooling and Servicing Agreement. The Transferor has no knowledge or reason to know that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.
E-2-1 |
4. The Transferor does not know and has no reason to know that the Transferee is not a Permitted Transferee, is not a United States Tax Person or a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, is a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person, or is a Person with respect to which income on the Residual Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty.
5. The Transferor does not know and has no reason to know that the Transferee will not honor the restrictions on subsequent transfers by the Transferee under the Transfer Affidavit and Agreement, delivered in connection with this transfer.
Very truly yours, | ||
(Transferor) | ||
By: | ||
Name: | ||
Title: |
E-2-2 |
Personally appeared before me the above named _________________, known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this ____ day of _______________ , 20 ___.
NOTARY PUBLIC |
COUNTY OF |
STATE OF |
My commission expires the ____ day of _______________ , 20 ___.
E-2-3 |
EXHIBIT
F
FORM OF REGULATION S CERTIFICATE
BANK
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-UBS7, CLASS ___ (THE “CERTIFICATES”)
TO: Euroclear
Bank, SA/NV
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Certificates held by you or on your behalf for our account are beneficially owned by non-U.S. person(s). As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”). To the extent that we hold an interest in any of the Certificates on behalf of person(s) other than ourselves, we have received certifications from such person(s) substantially identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Certificates held by you or on your behalf for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $__________ of such beneficial interest in the above Certificates in respect of which we are not able to certify and as to which we understand the exercise of any rights to payments thereon and the exchange for definitive Certificates or for an interest in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: __________, 2015
By: | ||
As, or as agent for, the beneficial owner(s) of the Certificates to which this certificate relates. |
F-1 |
EXHIBIT
G
FORM OF EXCHANGE CERTIFICATION
(“Exchange Certificate”)
__________ __, 201_
TO: The Depository Trust Company
CLEARSTREAM
or
Euroclear Bank, SA/NV
U.S.
Bank National Association,
as Certificate Registrar
This is to notify you as to the transfer of the beneficial interest in $_______________ of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, Class __(the “Certificates”).
The undersigned is the owner of a beneficial interest in the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] and requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit account #__________, with respect to $__________ principal denomination of the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the below-named purchaser, account #__________, in the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] in the same principal denomination as follows:
Name:
Address:
Taxpayer I.D. No.:
The undersigned hereby represents that this transfer is being made in accordance with an exemption from the provisions of Section 5 of the United States Securities Act of 1933, as amended (the “Securities Act”), which representation is based upon the reasonable belief that the purchaser is [an institution that is not a U.S. Person as defined in Regulation S under the Securities Act] [a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act, and that such purchaser has acquired the Certificates in a transaction effected in accordance with the exemption from the registration requirements of the Securities Act provided by Rule 144A and, if the purchaser has purchased the Certificates for one or more accounts for which it is acting as fiduciary or agent, each such account is a qualified institutional buyer] and that the purchaser is acquiring beneficial interests in the applicable Certificate1 for its own account or for
1 [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
G-1 |
one or more institutional accounts for which it is acting as fiduciary or agent in a minimum amount equivalent to not less than U.S.$[FOR PRINCIPAL BALANCE CERTIFICATES: $100,000] [FOR CLASS X CERTIFICATES: $100,000] and integral multiples of U.S. $1 in excess thereof for each such account.
Very truly yours, | ||
[NAME OF HOLDER OF CERTIFICATE] | ||
By: | ||
[Name], [Chief Financial | ||
or other Executive Officer] |
G-2 |
EXHIBIT
H
FORM OF EUROCLEAR BANK OR CLEARSTREAM BANK CERTIFICATE
Bank
of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Commercial Mortgage Pass-Through Certificates,
Series 2015-UBS7, Class ___ (The “Certificates”)
TO: U.S.
Bank National Association, as Certificate Registrar
Attn: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7
Commercial Mortgage Pass-Through
Certificates, Series 2015-UBS7
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount of the Certificates set forth below (our “Member Organizations”) substantially to the effect set forth in the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction, U.S. $__________ principal amount of the above-captioned Certificates held by us or on our behalf are beneficially owned by non-U.S. person(s). As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”).
We further certify that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any interest in the Certificates identified above are no longer true and cannot be relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class __ Regulation S Temporary Global Certificate shall be exchanged for an interest in the Class __ Regulation S Permanent Global Certificate (as each such term is defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global Certificate: We hereby agree to hold (and return to the Certificate Administrator upon request) any payments received by us on the Class __ Regulation S Temporary Global Certificate (as defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
H-1 |
Dated:
[EUROCLEAR BANK, SA/NV, as operator of the Euroclear System] | ||
or [CLEARSTREAM] | ||
By: |
H-2 |
EXHIBIT I-1A
FORM
OF INVESTOR CERTIFICATION FOR NON-BORROWER PARTY
(FOR PERSONS OTHER THAN THE CONTROLLING CLASS REPRESENTATIVE AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)
[Date]
U.S.
Bank National Association,
as Certificate Administrator
Corporate Trust Office
190 S. LaSalle Street, 7th Floor
Mail Code: MK-IL-SL7C
Chicago, Illinois 60603
Attention: Bank of America Merrill Lynch Commercial Mortgage
Trust 2015-UBS7
Re: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a Certificateholder, beneficial owner or prospective purchaser of the Class ___ Certificates, and is neither the Controlling Class Representative nor a Controlling Class Certificateholder.
2. In the case of a Registered Certificate, the undersigned has received a copy of the Prospectus.
3. The undersigned is not a Borrower Party.
4. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the
I-1A-1 |
“Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
7. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
[BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.]
Re: [Certificateholder][Beneficial
Owner][Prospective Purchaser] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-1A-2 |
EXHIBIT I-1B
FORM
OF INVESTOR CERTIFICATION FOR NON-BORROWER PARTY
(FOR THE CONTROLLING CLASS REPRESENTATIVE AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)
[Date]
Midland
Loan Services, a Division of PNC Bank, National Association
|
Pentalpha
Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: Don Simon, Chief Operating Officer |
LNR
Partners, LLC 1601 Washington Avenue, Suite 700 Miami Beach, Florida 33139 Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
U.S.
Bank National Association Mail
Code MK-IL-SL7C
|
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is [the Controlling Class Representative][a Controlling Class Certificateholder].
3. The undersigned is not a Borrower Party.
4. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
I-1B-1 |
The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. At any time the undersigned becomes a Borrower Party with respect to any Mortgage Loan, the undersigned shall deliver the certification attached as Exhibit I-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit I-1E and Exhibit I-1F to the Pooling and Servicing Agreement.
7. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
8. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.
9. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
[BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.]
Re: [The
Controlling Class Representative][a Controlling Class Certificateholder] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-1B-2 |
EXHIBIT I-1C
FORM
OF INVESTOR CERTIFICATION FOR BORROWER PARTY
(FOR PERSONS OTHER THAN THE CONTROLLING CLASS REPRESENTATIVE AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)
[Date]
U.S.
Bank National Association
190 S. LaSalle Street, 7th Floor
Mail
Code MK-IL-SL7C
Chicago, Illinois 60603
Attn: BACM 2015-UBS7
Midland
Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President-Division Head
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a Certificateholder, beneficial owner or prospective purchaser of the Class ___ Certificates, and is neither the Controlling Class Representative nor a Controlling Class Certificateholder.
2. The undersigned is a Borrower Party.
3. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the
I-1C-1 |
“Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
4. The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
5. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
6. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
[BY ITS CERTIFICATION HEREOF, the undersigned shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.]
Re: [Certificateholder][Beneficial
Owner][Prospective Purchaser] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-1C-2 |
EXHIBIT I-1D
FORM
OF INVESTOR CERTIFICATION FOR BORROWER PARTY
(FOR THE CONTROLLING CLASS REPRESENTATIVE AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)
[Date]
Midland
Loan Services, a Division of PNC Bank, National Association
|
Pentalpha
Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: Don Simon, Chief Operating Officer |
LNR
Partners, LLC 1601 Washington Avenue, Suite 700 Miami Beach, Florida 33139 Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
U.S.
Bank National Association Mail
Code MK-IL-SL7C
|
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is [the Controlling Class Representative][a Controlling Class Certificateholder].
2. The undersigned is a Borrower Party with respect to the following Excluded Controlling Class Mortgage Loans:
[IDENTIFY EXCLUDED CONTROLLING CLASS MORTGAGE LOANS] (the “Excluded Controlling Class Mortgage Loans”)
3. Except with respect to the Excluded Controlling Class Mortgage Loans, the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the
I-1D-1 |
undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
4. The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the Excluded Controlling Class Mortgage Loans to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.
5. The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representative and shall indemnify each party to the Pooling and Servicing Agreement, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide such Excluded Information to the related Borrower or (A) any employees or personnel of the undersigned or any Affiliate involved in the management of any investment in the related Borrower or the related Mortgaged Property or (B) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.
7. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
8. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.
9. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
[BY ITS CERTIFICATION HEREOF, the undersigned shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.]
I-1D-2 |
Re: [The
Controlling Class Representative][a Controlling Class Certificateholder] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-1D-3 |
EXHIBIT I-1E
FORM OF NOTICE OF EXCLUDED CONTROLLING CLASS HOLDER
[Date]
Midland
Loan Services, a Division of PNC Bank, National Association
|
Pentalpha
Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: Don Simon, Chief Operating Officer |
LNR
Partners, LLC 1601 Washington Avenue, Suite 700 Miami Beach, Florida 33139 Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
U.S.
Bank National Association Mail
Code MK-IL-SL7C
|
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
THIS NOTICE IDENTIFIES AN “EXCLUDED CONTROLLING CLASS MORTGAGE LOAN” RELATING TO THE BACM 2015-UBS7 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES REQUIRING ACTION BY YOU AS THE RECIPIENT PURSUANT TO SECTION 8.31 OF THE POOLING AND SERVICING AGREEMENT.
In accordance with Section 5.4(a) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby certifies and agrees as follows:
1. The undersigned is [the Controlling Class Representative] [a Controlling Class Certificateholder] as of the date hereof.
2. The undersigned has become an Excluded Controlling Class Holder with respect to the following Mortgage Loan(s) (“Excluded Controlling Class Mortgage Loans”):
Mortgage Loan Number | ODCR | Loan Name | Borrower Name |
3. The undersigned is simultaneously providing notice to the Certificate Administrator in the form of Exhibit I-1F to the Pooling and Servicing Agreement, requesting
I-1E-1 |
termination of access to any Excluded Information. The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information relating to the Excluded Controlling Class Mortgage Loans on the Certificate Administrator’s website unless and until it has (i) delivered notice of the termination of the related Excluded Controlling Class Holder status and (ii) submitted a new investor certification in accordance with Section 5.4(a) of the Pooling and Servicing Agreement.
4. The undersigned agrees to indemnify and hold harmless each party to the Pooling and Servicing Agreement, the Underwriters, the Initial Purchasers and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any Excluded Information relating to the Excluded Controlling Class Mortgage Loans listed in Paragraph 2 above.
Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.
Re: [The
Controlling Class Representative][a Controlling Class Certificateholder] | ||
By: | ||
Name: Title: | ||
Company: | ||
Phone: Email: Address: |
I-1E-2 |
EXHIBIT I-1F
FORM OF NOTICE OF EXCLUDED CONTROLLING CLASS HOLDER TO CERTIFICATE ADMINISTRATOR
[Date]
Via:
Email
U.S. Bank National Association
190 S. LaSalle Street, 7th Floor
Mail Code: MK-IL-SL7C
Chicago, Illinois 60603
Attn: [Corporate Trust Services – BACM 2015-UBS7]
Email: [cmbs.transactions@usbank.com]
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with Section 5.4(a) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby directs you as follows:
1. The undersigned is the [Controlling Class Representative] [a Controlling Class Certificateholder] as of the date hereof.
2. The undersigned has become an Excluded Controlling Class Holder with respect to the following Mortgage Loan(s) (“Excluded Controlling Class Mortgage Loans”):
Mortgage Loan Number | ODCR | Loan Name | Borrower Name |
3. [The following USER IDs for [www.usbank.com/abs] are affiliated with the undersigned and access to any information on the Certificate Administrator’s Website with respect to the BACM 2015-UBS7 securitization should be revoked as to such users]:
I-1F-1 |
4. [The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information with respect to such Excluded Controlling Class Mortgage Loans on the Certificate Administrator’s website unless and until it (i) is no longer an Excluded Controlling Class Holder with respect to such Excluded Controlling Class Mortgage Loans, (ii) has delivered notice of the related Excluded Controlling Class Holder status and (iii) has submitted an investor certification in the form of Exhibit I-1E to the Pooling and Servicing Agreement.]
Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.
Re: [The
Controlling Class Representative][a Controlling Class Certificateholder] | ||
By: | ||
Name: Title: | ||
Phone: Email: Address: |
[The
undersigned hereby acknowledges that
access to www.usbank.com/abs has been revoked for
the users listed in Paragraph 3.]
U.S. BANK NATIONAL ASSOCIATION,
Certificate Administrator
Name: Title: |
I-1F-2 |
EXHIBIT I-1G
FORM OF CERTIFICATION OF THE CONTROLLING CLASS REPRESENTATIVE
[Date]
Midland
Loan Services, a Division of PNC Bank, National Association
|
Pentalpha
Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: Don Simon, Chief Operating Officer |
LNR Partners,
LLC 1601 Washington Avenue, Suite 700 Miami Beach, Florida 33139 Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
U.S.
Bank National Association Mail
Code MK-IL-SL7C
|
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with Section 10.1(f) of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:
1. The undersigned has been appointed to act as the Controlling Class Representative.
2. The undersigned is not a Borrower Party.
3. If the undersigned becomes a Borrower Party with respect to any Mortgage Loan, the undersigned agrees to and shall deliver the certification attached as Exhibit I-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit I-1E and Exhibit I-1F to the Pooling and Servicing Agreement.
4. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.
5. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
[BY ITS CERTIFICATION HEREOF, the undersigned shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.]
I-1G-1 |
Re: [The
Controlling Class Representative][a Controlling Class Certificateholder] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-1G-2 |
EXHIBIT
J
FORM OF NRSRO CERTIFICATION (“NRSRO Certification”)
U.S.
Bank National Association,
as Certificate Administrator
Corporate Trust Office
190 S. LaSalle Street, 7th Floor
Mail Code: MK-IL-SL7C
Chicago, Illinois 60603
Attention: | Bank
of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 Commercial Mortgage Pass-Through Certificates Series 2015-UBS7 |
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
Ladies and Gentlemen:
In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the above-referenced transaction with respect to Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. (a) The undersigned is a Rating Agency; or
(b) The undersigned is a nationally recognized statistical rating organization that either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the 17g-5 website pursuant to the provisions of the Pooling and Servicing Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s website), or (y) if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement provided by the 17-g5 Information Provider and executed and delivered in connection with this certification hereto which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s website, including any information that is obtained from the section of the 17g-5 Information Provider’s website that hosts the Depositor’s 17g-5 website related to the Certificates after the Closing Date.
J-1 |
2. The undersigned agrees that each time it accesses the 17g-5 Information Provider’s Website, it is deemed to have recertified that the representations herein contained remain true and correct.
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
J-2 |
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.
[NRSRO] | ||
By: | ||
Name: Title: | ||
Company: |
Dated: [_____]
J-3 |
EXHIBIT
K
FORM OF DISTRIBUTION DATE STATEMENT
[See attached]
K-1 |
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
DATES | ADMINISTRATOR | ||||||||
Payment Date: | Oct 19, 2015 | First Distribution Date: | Oct 19, 2015 | ||||||
Prior Payment: | Closing Date: | Sept 24, 2015 | Name: | ||||||
Next Payment: | Nov 18, 2015 | Rated Final Distribution Date: | Sept 18, 2048 | Title: | Account Administrator | ||||
Record Date: | Sep 30, 2015 | ||||||||
Determination Date: | Oct 13, 2015 | Address: | 190 South LaSalle Street | ||||||
Chicago, IL, 60603 | |||||||||
TABLE OF CONTENTS | |||||||||
Phone: | |||||||||
Payment Detail | Page 1 | Email: | |||||||
Factor Detail | Page 2 | Website: | www.usbank.com/abs | ||||||
Principal Detail | Page 3 | ||||||||
Interest Detail | Page 4 | PARTIES TO TRANSACTION | |||||||
Reconciliation of Funds | Page 5 | ||||||||
Miscellaneous Detail | Page 6 | Mortgage Loan Seller: | Bank of America, N.A. | ||||||
Bond Collateral Realized Loss Reconciliation | Page 7 | UBS Real Estate Securities Inc. | |||||||
Historical Delinquency & Liquidation Summary (Stated) | Page 8 | Depositor: | Banc of America Merrill Lynch Commercial Mortgage Inc. | ||||||
Historical Liquidation Loss Loan Detail | Page 9 | Trustee: | U.S. Bank National Association | ||||||
Interest Adjustment Reconciliation | Page 10 | Servicer: | Midland Loan Services, | ||||||
Appraisal Reduction Report | Page 11 | a Division of PNC Bank, National Association | |||||||
Loan Level Detail | Page 12 | Special Servicer: | LNR Partners, LLC | ||||||
Historical Loan Moadification Report | Page 13 | Rating Agency: | Morningstar Credit Ratings, LLC | ||||||
REO Status Report | Page 14 | Rating Agency: | Fitch Ratings, Inc. | ||||||
Defeased Loan Detail | Page 15 | Rating Agency: | Kroll Bond Rating Agency, Inc. | ||||||
Material Breaches and Document Defects | Page 16 | Rating Agency: | Moody’s Investors Service, Inc. | ||||||
Trust Advisor: | Pentalpha Surveillance LLC | ||||||||
* This report contains, or is based on, information furnished to U.S. Bank Global Corporate Trust Services (“U.S. Bank”) by one or more third parties (e.g. Servicers, Master Servicer, etc.), and U.S. Bank has not independently verified information received from any such third party. | ![]() |
|||||||||
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
PAYMENT DETAIL
Pass-Thru | Original | Beginning | Principal | Interest | Total | Realized | Ending | |
Class | Rate | Balance | Balance | Distribution | Distribution | Distribution | Loss | Balance |
A-1 | ||||||||
A-SB | ||||||||
A-3 | ||||||||
A-4 | ||||||||
A-S | ||||||||
B | ||||||||
C | ||||||||
D | ||||||||
E | ||||||||
F | ||||||||
G | ||||||||
H | ||||||||
X-A | ||||||||
X-B | ||||||||
X-D | ||||||||
X-E | ||||||||
X-FG | ||||||||
X-NR | ||||||||
R | ||||||||
V | ||||||||
Totals:
|
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
FACTOR DETAIL
|
|
| |||||
Beginning |
Principal |
Interest |
Total |
Collateral Support |
Ending | ||
Class | Cusip |
Balance |
Distribution |
Distribution |
Distribution |
Deficit |
Balance |
A-1 A-SB A-3 A-4 A-S B C D E F G H X-A X-B X-D X-E X-FG X-NR R
V
|
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
PRINCIPAL DETAIL
|
Excess Trust |
|
| ||||
Beginning |
Scheduled |
Unscheduled |
Advisor Expenses |
Collateral Support |
Ending |
Cumulative | |
Class | Balance |
Principal |
Principal |
Allocation |
Deficit |
Balance |
Loss |
A-1 A-SB A-3 A-4 A-S B C D E F G H
|
|||||||
Totals: | |||||||
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
INTEREST DETAIL
Accrued |
Net Prepay |
Trust Advisor |
Current |
|
Additional |
Accrued | Total Interest | Cumulative | ||
Certificate |
Interest |
Expenses |
Interest |
Extension |
Prepayment | Interest |
Unpaid Addt’l | Distribution | Unpaid Int | |
Class | Interest |
Shortfall |
Allocation |
Shortfall |
Fees |
Premium | Amount |
Interest Amt | Amount | Shortfall |
A-1 A-SB A-3 A-4 A-S B C D E F G H X-A X-B X-D X-E X-FG X-NR R
V
|
||||||||||
Totals: | ||||||||||
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
RECONCILIATION OF FUNDS
Funds Collection |
Funds Distribution | ||||||||
Interest | Fees | ||||||||
Scheduled Interest | Servicing Fee | ||||||||
Interest Adjustments | Trustee/Certificate Administrator Fee | ||||||||
Deferred Interest | Special Servicing Fee | ||||||||
Net Prepayment Shortfall | Workout Fee | ||||||||
Net Prepayment Interest Excess | Liquidation Fee | ||||||||
Interest Reserve (Deposit)/Withdrawal | Special Serv Fee plus Adj. | ||||||||
Interest Collections | CREFC Intellectual Property Royalty License Fee | ||||||||
Trust Advisor Fee | |||||||||
Extension Fee | |||||||||
Principal | Fee Distributions | ||||||||
Scheduled Principal | |||||||||
Unscheduled Principal | Other Expenses of the Trust | ||||||||
Principal Adjustments | Reimbursed for Interest on Advances | ||||||||
Principal Collections | Net ASER Amount | ||||||||
Non-Recoverable Advances | |||||||||
Other Expenses or Shortfalls | |||||||||
Other Expenses of the Trust | |||||||||
Other | |||||||||
Prepayment Premium | Payments to Certificateholders | ||||||||
Other Collections | Interest Distribution | ||||||||
Principal Distribution | |||||||||
Total Collections | Prepayment Premium | ||||||||
Available Distribution Amount | |||||||||
Start |
End | Total Distributions | |||||||
Interest Accrual Period | |||||||||
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Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 | ||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 | October 2015 |
MISCELLANEOUS DETAIL
Advances | Miscellaneous | |||||||||
P&I Advances | Beginning Stated Principal Balance | |||||||||
* Total Current | Ending Stated Principal Balance | |||||||||
Advance | Ending Unpaid Balance | |||||||||
Total | ||||||||||
Mortgage Loan Count | ||||||||||
Unreimbursed Advances | Aggregate Principal Balance | |||||||||
Current | Outstanding | Total Servicing | Weighted Average Months to Maturity (WAMM) | |||||||
Advance | Advance | Adv. Outstanding | Weighted Average Mortgage Rate | |||||||
Total | ||||||||||
Disclosable Special Servicer Fees | ||||||||||
Special Servicer/Affiliates | ||||||||||
Commission | ||||||||||
Brokerage Fee | ||||||||||
Rebate Shared | ||||||||||
Fee | ||||||||||
Total | ||||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
BOND/COLLATERAL REALIZED LOSS RECONCILIATION
Distribution |
Period |
Beginning
Bal |
Aggregate |
Prior |
Amt
Covered |
Int
(Shortage)/ |
Mod
Adj/ |
Addt’l
(Recov) |
Cur
Realized |
Recov
of |
Recoveries/ | |||||||||||
Totals: | ||||||||||||||||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
HISTORICAL DELINQUENCY & LIQUIDATION SUMMARY (Stated)
30 Days Delinq |
60 Days Delinq | 90+ Days Delinq | Bankruptcy | Foreclosure | REO | Prepayments | ||||||||||||||||||||||
Month | Count | Balance | Count | Balance | Count | Balance | Count | Balance | Count | Balance | Count | Balance | Count | Balance |
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
HISTORICAL LIQUIDATION LOSS LOAN DETAIL
Loan ID |
Liquidation |
Liquidation/ |
Current Beg. Scheduled Balalnce |
Most |
Net
Proceeds |
Liquidation |
Net
Proceeds |
Realized
Loss | ||||||||
Totals: | ||||||||||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
INTEREST ADJUSTMENT RECONCILIATION
Loan ID | Curr Ending Scheduled Balance |
Spec Serv Fee Amt plus Adj |
Liquidation Fee Amount |
Workout Fee Amount |
Most Recent Net ASER Amount |
Prepayment Int Excess (Shortfall) |
Non-Recov (Scheduled Interest) |
Reimbursed Interest |
Mod Int Rate (Reduction)/ Excess |
Reimbursement of Advances to Servicer |
Other (Shortfalls)/ Refunds | ||
Curr Month | Outstanding | ||||||||||||
Totals: | |||||||||||||
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
APPRAISAL REDUCTION REPORT
Loan ID | Property Name | Paid-Through |
ARA (Appraisal Reduction Amt) |
ARA Date | Most Recent Value |
Most Recent Valuation Date |
Most Recent Net ASER Amount |
Cumulative ASER Amount |
Totals: | ||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
October 2015 |
LOAN LEVEL DETAIL
End | Yield | ||||||||||||||||
Property | Transfer | Maturity | Neg Am | Schedule | Note | Sched | Prepay | Prepay | Paid Thru | Prepay | Loan | Interest | Maint | PFY | Operating | ||
Loan ID | Type | Date | State | Date | (Y/N) | Balance | Rate | P&I | Liquid/Adj | Date | Date | Premium | Status | Payment | Charges | DSCR | Stmnt |
Totals: | |||||||||||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2014-C16 |
October 2015 |
HISTORICAL LOAN MODIFICATION REPORT
Loan ID | Ending Scheduled |
Ending Unpaid |
Comments |
|
|
|
| |
Totals: | ||||||||
![]() |
||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2014-C16 |
October 2015 |
REO STATUS REPORT
Loan ID |
State | City | Property Type |
Book Value |
Ending Scheduled Loan |
REO Date | Total Exposure |
Appraisal Value |
Appraisal Date |
Date Expected to be Resolved or Foreclosed |
REO |
Type* | ||||||||||
Counts: | Totals: | |||||||||||||||||||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2014-C16 |
October 2015 |
DEFEASED LOAN DETAIL
Current Ending Sched |
Current | ||||
Loan ID | Balance | Maturity | Date | Note Rate |
Defeasance Status |
Totals: | |||||
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||
Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 |
||
Commercial Mortgage Pass-Through Certificates, Series 2014-C16 |
October 2015 |
MATERIAL BREACHES AND DOCUMENT DEFECTS
Ending
|
Material | Date Received | ||
Loan ID | Balance | Breach Date | Notice | Description |
EXHIBIT
L
FORM OF TRUST ADVISOR ANNUAL REPORT
Report
Date: Report will be delivered annually no later than [INSERT DATE].
Transaction: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates,
Series 2015-UBS7
Trust Advisor: Pentalpha Surveillance LLC
Special Servicer: [
]
Controlling Class Representative: [
]
I. Executive Summary
Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the above-referenced transaction, as well as the items listed below, the Trust Advisor has undertaken a limited review of the Special Servicer’s operational practices in light of the Servicing Standard and the requirements of the Pooling and Servicing Agreement and has discussed with the Special Servicer its stated policies and procedures, operational controls and protocols, risk management systems, intellectual resources, the Special Servicer’s reasoning for believing it is in compliance with the Pooling and Servicing Agreement and other pertinent information the Trust Advisor considers relevant, in each case, insofar as such information relates to the resolution or liquidation of the Specially Serviced Mortgage Loans and REO Properties and provides this Trust Advisor Annual Report.
No information or any other content included in this Trust Advisor Annual Report contravenes any provision of the Pooling and Servicing Agreement. This Trust Advisor Annual Report sets forth the Trust Advisor’s assessment of the Special Servicer’s performance of its duties under the Pooling and Servicing Agreement during the prior calendar year on a platform-level basis with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties during the prior calendar year.
Subject to the restrictions in the Pooling and Servicing Agreement, this Trust Advisor Annual Report (A) identifies any material deviations, if any (i) from the Servicing Standard and (ii) from the Special Servicer’s obligations under the Pooling and Servicing Agreement with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties and (B) complies with all of the confidentiality requirements described in the Pooling and Servicing Agreement.
In connection with the assessment set forth in this report, the Trust Advisor:
1. | Reviewed any annual compliance statement delivered to the Trust Advisor by the Special Servicer pursuant to Section 13.9 the Pooling and Servicing Agreement and the following issues were noted therein: [ ] |
Trust Advisor Actions:
L-1 |
2. | Reviewed any annual independent public accountants’ servicing report delivered to the Trust Advisor by the Special Servicer pursuant to Section 13.11 of the Pooling and Servicing Agreement and the following issues were noted therein: [ ] |
Trust Advisor Actions:
3. | Reviewed any [Final] Asset Status Report and other information or communications delivered to the Trust Advisor and the following issues were noted therein: [ ] |
Trust Advisor Actions:
Based on such review and/or consultation with, or other information provided by the Special Servicer, and on the Trust Advisor’s performance of its obligations under the Pooling and Servicing Agreement, the Trust Advisor [does] [does not] believe there are material violations of the Special Servicer’s compliance with its obligations under the Pooling and Servicing Agreement.
Qualifications related to the work product undertaken and opinions related to this report:
1. | The Trust Advisor did not participate in, or have access to, the Special Servicer’s and Controlling Class Representative’s discussion(s) regarding any Specially Serviced Mortgage Loan. |
2. | The Special Servicer has the legal authority and responsibility to service the Specially Serviced Mortgage Loans pursuant to the Pooling and Servicing Agreement. The Trust Advisor has no responsibility or authority to alter the standards set forth therein. |
3. | Confidentiality and other contractual restrictions limit the Trust Advisor’s ability to outline herein the details or substance of certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Trust Advisor is given access to by the Special Servicer. However, all such information is considered in preparing this report. |
4. | There are many tasks that the Special Servicer undertakes on an ongoing basis related to Specially Serviced Mortgage Loans. These include, but are not limited to, assumptions, ownership changes, collateral substitutions, capital reserve changes, etc. The Trust Advisor does not participate in discussions regarding such actions. As such, the Trust Advisor has not assessed the Special Servicer’s operational compliance with respect to those types of actions. |
Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement as described herein.
L-2 |
PENTALPHA SURVEILLANCE LLC | ||
By: | ||
Name: | ||
Title: |
L-3 |
EXHIBIT
M
FORM OF FINANCIAL MARKET PUBLISHERS CERTIFICATION (SECTION 5.4(h)) AND CREFC® CERTIFICATION (SECTION 5.4(k))
This
Certification has been prepared for provision of information to the market data providers
listed in the second paragraph below pursuant to the direction of the Depositor or the CRE
Finance Council®. If you represent a Financial Market Publisher not listed herein and would
like access to the information, please contact U.S. Bank National Association at (800) 934-6802,
or at cmbs.transactions@usbank.com.
In connection with the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates Series 2015-UBS7 (the “Certificates”), the undersigned hereby certifies and agrees as follows:
The undersigned is [an employee or agent of BlackRock Financial Management, Inc., Trepp, LLC, Bloomberg L.P., Thomson Reuters, CMBS.com, Inc., Intex Solutions, Inc., Markit Group Limited or a market data provider that has been given access to the Distribution Date Statements, CREFC® reports and supplemental notices on www.usbank.com/abs by request of the Depositor][an employee or agent of the CRE Finance Council® that has been given access to the Distribution Date Statements and CREFC® reports on www.usbank.com/abs].
The undersigned agrees that each time it accesses www.usbank.com/abs, the undersigned is deemed to have recertified that the representation above remains true and correct.
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the agreement pursuant to which the Certificates were issued.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and has caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.
[______________________] | ||
By: | ||
Name: Title: | ||
Phone: | ||
E-mail: |
Dated:
M-1 |
EXHIBIT
N-1
[Reserved]
N-1-1 |
EXHIBIT N-2
[Reserved]
N-2-1 |
EXHIBIT O-1
FORM OF LIMITED POWER OF ATTORNEY TO MASTER SERVICER
RECORDING
REQUESTED BY:
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President-Division Head
Facsimile: (913) 253-9001
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
U.S. Bank National Association, a national banking association organized and existing under the laws of the United States and having an office at 190 S. LaSalle Street, MK-IL-SL7C, Chicago, IL 60603, not in its individual capacity but solely as Trustee (“Trustee”), hereby constitutes and appoints Midland Loan Services, a Division of PNC Bank, National Association, (“Master Servicer”), and in its name, aforesaid Attorney-In-Fact, by and through any authorized representative appointed by the Board of Directors of Master Servicer, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate for the tasks described in the items (1) through (11) below; provided, however, that the documents described below may only be executed and delivered by such Attorney-In-Fact if such documents are required or permitted under the terms of the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Agreement”) by and among Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as the Master Servicer, LNR Partners, LLC, as the Special Servicer, U.S. Bank National Association, as the Trustee, Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian, and Pentalpha Surveillance LLC, as the Trust Advisor, on behalf of the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, and no power is granted hereunder to take any action that would be adverse to the interests of U.S. Bank National Association.
This Limited Power of Attorney is being issued in connection with Master Servicer’s responsibilities to service certain mortgage loans (the “Loans”) held by the Trustee. These Loans are secured by collateral comprised of mortgages, deeds of trust, deeds to secure debt and other forms of security instruments (collectively the “Security Instruments”) encumbering any and all real and personal property delineated therein (the “Property”) and the Notes secured thereby. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
1. Demand, sue for, recover, collect and receive each and every sum of money, debt, account and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by the Trustee, and to use or take any lawful means for recovery by legal process or
O-1-1 |
otherwise, including but not limited to the substitution of the trustee serving under a deed of trust, the preparation and issuance of statements of breach, notices of default, and/or notices of sale, accepting deeds in lieu of foreclosure, evicting (to the extent allowed by federal, state or local laws) and foreclosing on the properties under the Security Instruments by judicial or non-judicial foreclosure, actions for temporary restraining orders, injunctions, appointments of receiver, suits for waste, fraud and any and all other tort, contractual or other claims of whatever nature, including execution of any evidentiary affidavits or verifications in support thereof, as may be necessary or advisable in any bankruptcy action, state or federal suit or any other action.
2. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee in litigation and to resolve any litigation where the Master Servicer has an obligation to defend the Trustee, including but not limited to dismissal, termination, cancellation, rescission and settlement.
3. Transact business of any kind regarding the Loans.
4. Obtain an interest therein and/or building thereon, as the Trustee’s act and deed, to contract for, purchase, receive and take possession and evidence of title in and to the property and/or to secure payment of a promissory note or performance of any obligation or agreement.
5. Execute, complete, indorse or file bonds, notes, mortgages, deeds of trust and other contracts, agreements and instruments regarding the Mortgagors and/or the Property, including but not limited to the execution of estoppel certificates, financing statements, continuation statements, releases, satisfactions, assignments, loan modification agreements, payment plans, waivers, consents, amendments, forbearance agreements, loan assumption agreements, subordination agreements, property adjustment agreements, management agreements, listing agreements, purchase and sale agreements and other instruments pertaining to mortgages or deeds of trust, and execution of deeds and associated instruments, if any, conveying the Property, in the interest of the Trustee.
6. Endorse on behalf of the undersigned all checks, drafts and/or other negotiable instruments made payable to the undersigned and draw upon, replace, substitute, release or amend letters of credit as Property securing the Loans.
7. Execute any document or perform any act described in items (3), (4), and (5) in connection with the termination of the Trust as necessary to transfer ownership of the affected Loans to the entity (or its designee or assignee) possessing the right to obtain ownership of the Loans.
8. Such other actions and file such other instruments and certifications as are reasonably necessary to complete or accomplish the Master Servicer’s duties and responsibilities under the Agreement.
9. Subordinate the lien of a mortgage, deed of trust, or deed to secure debt (i) for the purpose of refinancing Loans, where applicable, or (ii) to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain, including but not limited to the execution of partial satisfactions and releases and partial reconveyances reasonably required for such purpose, and the execution or requests to the trustees to accomplish the same.
O-1-2 |
10. Convey the Property to the mortgage insurer, or close the title to the Property to be acquired as real estate owned, or convey title to real estate owned property (“REO Property”).
11. Execute and deliver the following documentation with respect to the sale of REO Property acquired through a foreclosure or deed-in-lieu of foreclosure, including, without limitation: listing agreements; purchase and sale agreements; grant / limited or special warranty / quit claim deeds or any other deed, but not general warranty deeds, causing the transfer of title of the property to a party contracted to purchase same; escrow instructions; and any and all documents necessary to effect the transfer of REO Property.
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do as of [date].
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
The Master Servicer hereby agrees to indemnify and hold U.S. Bank National Association, as Trustee, and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the misuse of this Limited Power of Attorney by the Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of U.S. Bank National Association, as Trustee under the Agreement.
The Master Servicer hereby agrees to promptly forward to the Trustee a copy of any notice of a suit, litigation or proceeding in the name of U.S. Bank National Association, either individually (with respect to the Certificates or the transactions contemplated by the Pooling and Servicing Agreement) or in its capacity as Trustee, received by the Master Servicer.
This Limited Power of Attorney may not be assigned by the Master Servicer without the consent of U.S. Bank National Association.
This Limited Power of Attorney is effective as of the date below and shall continue to remain in full force and effect until (a) revoked in writing by the Trustee, or (b) the termination, resignation or removal of the Trustee as trustee of the Trust, or (c) the termination, resignation or removal of the Master Servicer as master servicer of the Trust.
O-1-3 |
Witness my hand and seal this _____ day of , 2015.
NO CORPORATE SEAL | U.S. BANK NATIONAL ASSOCIATION, | |||
as Trustee, for Bank of America Merrill | ||||
Lynch Commercial Mortgage Trust 2015- | ||||
UBS7 | ||||
By: | ||||
Witness: | , Vice President | |||
By: | ||||
Witness: | , Vice President | |||
Attest: | , Trust Officer |
CORPORATE ACKNOWLEDGMENT
State of Illinois
County of Cook
On this day of , 2015, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as Vice President, Vice President and Trust Officer, respectively of U.S. Bank National Association, a national banking association, and acknowledged to me that such national banking association executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature: | |||
My commission expires: | Document drafted by | ||
U.S. Bank National Association, as Trustee |
O-1-4 |
EXHIBIT
O-2
FORM OF LIMITED POWER OF ATTORNEY TO SPECIAL SERVICER
RECORDING
REQUESTED BY:
LNR Partners, LLC
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw
Facsimile: (305) 695-5601
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
U.S. Bank National Association, a national banking association organized and existing under the laws of the United States and having an office at 190 S. LaSalle Street, MK-IL-SL7C, Chicago, IL 60603, not in its individual capacity but solely as Trustee (“Trustee”), hereby constitutes and appoints LNR Partners, LLC (“Special Servicer”), and in its name, aforesaid Attorney-In-Fact, by and through any authorized representative appointed by the Special Servicer, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate for the tasks described in the items (1) through (11) below; provided, however, that the documents described below may only be executed and delivered by such Attorney-In-Fact if such documents are required or permitted under the terms of the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Agreement”) by and among Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as the Master Servicer, LNR Partners, LLC, as the Special Servicer, U.S. Bank National Association, as the Trustee, Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian, and Pentalpha Surveillance LLC, as the Trust Advisor, on behalf of the Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, and no power is granted hereunder to take any action that would be adverse to the interests of U.S. Bank National Association.
This Limited Power of Attorney is being issued in connection with Special Servicer’s responsibilities to service certain mortgage loans (the “Loans”) held by the Trustee. These Loans are secured by collateral comprised of mortgages, deeds of trust, deeds to secure debt and other forms of security instruments (collectively the “Security Instruments”) encumbering any and all real and personal property delineated therein (the “Property”) and the Notes secured thereby. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
O-2-1 |
1. Demand, sue for, recover, collect and receive each and every sum of money, debt, account and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by the Trustee, and to use or take any lawful means for recovery by legal process or otherwise, including but not limited to the substitution of the trustee serving under a deed of trust, the preparation and issuance of statements of breach, notices of default, and/or notices of sale, accepting deeds in lieu of foreclosure, evicting (to the extent allowed by federal, state or local laws) and foreclosing on the properties under the Security Instruments by judicial or non-judicial foreclosure, actions for temporary restraining orders, injunctions, appointments of receiver, suits for waste, fraud and any and all other tort, contractual or other claims of whatever nature, including execution of any evidentiary affidavits or verifications in support thereof, as may be necessary or advisable in any bankruptcy action, state or federal suit or any other action.
2. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee in litigation and to resolve any litigation where the Special Servicer has an obligation to defend the Trustee, including but not limited to dismissal, termination, cancellation, rescission and settlement.
3. Transact business of any kind regarding the Loans or any REO Property.
4. Obtain an interest therein and/or building thereon, as the Trustee’s act and deed, to contract for, purchase, receive and take possession and evidence of title in and to the property and/or to secure payment of a promissory note or performance of any obligation or agreement, including the creation of a wholly owned entity of the Trust for purposes of holding foreclosure property.
5. Execute, complete, indorse, deliver or file bonds, notes, mortgages, deeds of trust and other contracts, agreements and instruments regarding the Mortgagors and/or the Property, including but not limited to the execution of estoppel certificates, financing statements, continuation statements, releases, satisfactions, assignments, loan modification agreements, payment plans, waivers, consents, amendments, forbearance agreements, loan assumption agreements, subordination agreements, property adjustment agreements, management agreements, listing agreements, purchase and sale agreements and other instruments pertaining to mortgages or deeds of trust, and execution of deeds and associated instruments, if any, conveying the Property, in the interest of the Trustee.
6. Endorse on behalf of the undersigned all checks, drafts and/or other negotiable instruments made payable to the undersigned and draw upon, replace, substitute, release or amend letters of credit as Property securing the Loans.
7. Execute and deliver any document or perform any act described in items (3), (4), and (5) in connection with the termination of the Trust as necessary to transfer ownership of the affected Loans to the entity (or its designee or assignee) possessing the right to obtain ownership of the Loans.
8. Such other actions and file such other instruments and certifications as are reasonably necessary to complete or accomplish the Special Servicer’s duties and responsibilities under the Agreement.
O-2-2 |
9. Subordinate the lien of a mortgage, deed of trust, or deed to secure debt (i) for the purpose of refinancing Loans, where applicable, or (ii) to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain, including but not limited to the execution of partial satisfactions and releases and partial reconveyances reasonably required for such purpose, and the execution or requests to the trustees to accomplish the same.
10. Convey the Property to the mortgage insurer, or close the title to the Property to be acquired as real estate owned, or convey title to real estate owned property (“REO Property”).
11. Execute and deliver any documentation with respect to the sale of REO Property acquired through a foreclosure or deed-in-lieu of foreclosure, including, without limitation: listing agreements; purchase and sale agreements; grant / limited or special warranty / quit claim deeds or any other deed, but not general warranty deeds, causing the transfer of title of the property to a party contracted to purchase same; escrow instructions; and any and all documents necessary to effect the transfer of REO Property.
The undersigned gives said Attorney-In-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do as of [date].
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
The Special Servicer hereby agrees to indemnify and hold U.S. Bank National Association, as Trustee, and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the misuse of this Limited Power of Attorney by the Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of U.S. Bank National Association, as Trustee under the Agreement.
This Limited Power of Attorney may not be assigned by the Special Servicer without the consent of U.S. Bank National Association.
This Limited Power of Attorney is effective as of the date below and shall continue to remain in full force and effect until (a) revoked in writing by the Trustee, or (b) the termination, resignation or removal of the Trustee as trustee of the Trust, or (c) the termination, resignation or removal of the Special Servicer as special servicer of the Trust.
O-2-3 |
Witness my hand and seal this _____ day of , 2015.
NO CORPORATE SEAL | U.S. BANK NATIONAL ASSOCIATION, | |||
as Trustee, for Bank of America Merrill | ||||
Lynch Commercial Mortgage Trust 2015- | ||||
UBS7 | ||||
By: | ||||
Witness: | , Vice President | |||
By: | ||||
Witness: | , Vice President | |||
Attest: | , Trust Officer |
CORPORATE ACKNOWLEDGMENT
State of Illinois
County of Cook
On this day of , 2015, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as Vice President, Vice President and Trust Officer, respectively of U.S. Bank National Association, a national banking association, and acknowledged to me that such national banking association executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature: | |||
My commission expires: | Document drafted by | ||
U.S. Bank National Association, as Trustee |
O-2-4 |
EXHIBIT
P-1
FORM OF CERTIFICATION
Re: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Transaction”), issued pursuant to the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the Transaction (capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement).
I, [identity of certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7 (the “Exchange Act periodic reports”);
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance statement(s) required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreement(s) in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties:
· Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer;
· LNR Partners, LLC, as Special Servicer;
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· Pentalpha Surveillance LLC, as Trust Advisor;
· U.S. Bank National Association, as Trustee; Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian;
· [names of sub-servicers]
Date: [___]
By | ||
Name: Title: |
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EXHIBIT
P-2
REPORTING SERVICER FORM OF PERFORMANCE CERTIFICATION
Banc
of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Re: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Transaction”), issued pursuant to the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the Transaction.
Capitalized terms used but not defined herein have the meanings set forth in the [Pooling and Servicing Agreement] [the Subservicing Agreement, dated as of [_] (the “Subservicing Agreement”) between [identify parties] or, if not defined in the Subservicing Agreement, then the meanings set forth in the Pooling and Servicing Agreement].
I, [identity of certifying individual], hereby certify to [Name of Certifying Person(s) for the Sarbanes-Oxley Certification], the Depositor and its officers, directors and Affiliates (collectively, the “Certification Parties”) as follows, with the knowledge and intent that the Certification Parties will rely on this Certification in connection with the certification concerning the Trust to be signed by an officer of the Depositor and submitted to the Securities and Exchange Commission pursuant to the Sarbanes-Oxley Act of 2002:
1. I [(or an officer supervised by me)] have reviewed the report of [servicing] information provided by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] required in accordance with the Pooling and Servicing Agreement for inclusion in the Annual Report on Form 10-K (“Form 10-K”) relating to the Trust and all reports of information by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] required in accordance with the Pooling and Servicing Agreement for inclusion in the Asset-Backed Issuer Distribution Reports on Form 10-D (“Form 10-D”) relating to the Trust (such reports by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer], collectively, the “Applicable Periodic Reports”);
2. Based on my knowledge, the Applicable Periodic Reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the Applicable Periodic Reports;
3. Based on my knowledge, all of the [distribution], servicing and other information required to be provided in the Applicable Periodic Reports under the provisions of the [Pooling
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and Servicing/Subservicing] Agreement for the calendar year ending December 31, [____] is included in the Applicable Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer]’s compliance statement under Section [13.9] of the [Pooling and Servicing/Subservicing] Agreement in connection with Item 1123 of Regulation AB, and except as disclosed in the Applicable Periodic Reports, the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] has fulfilled its obligations under the [Pooling and Servicing/Subservicing] Agreement; and
5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required under the [Pooling and Servicing/Subservicing] Agreement to be included in this certification in connection with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been delivered in accordance with the [Pooling and Servicing/Subservicing] Agreement and included as an exhibit to this certification, except as otherwise disclosed in this certification. Any material instances of noncompliance required to be described in such reports have been disclosed in such reports.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: [name of trustee, custodian, certificate administrator or other similar party; name of depositor; name of master servicer; name of trust advisor; name of special servicer; name of other sub-servicer].
This Certification is being signed by me as an officer of the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] responsible for reviewing [or overseeing review of] the activities performed by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] under the [Pooling and Servicing/Subservicing] Agreement.
Date: [___]
By | ||
Name: Title: |
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Exhibit(s)
[List and attach applicable Item 1122 and Item 1123 reports.]
P-2-3 |
EXHIBIT
Q
[Reserved]
Q-1 |
EXHIBIT
R
[Reserved]
R-1 |
EXHIBIT S-1
FORM
OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Banc
of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”) and executed in connection with the issuance of the Certificates. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Depositor, that:
1. The Transferor is the lawful owner of the right to receive the Excess Servicing Fees (the “Excess Servicing Fee Right”), with the full right to transfer the Excess Servicing Fee Right free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of the Excess Servicing Fee Right pursuant to the Securities Act or any state securities laws.
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Very truly yours, | ||
By: | ||
Name: Title: |
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EXHIBIT S-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President-Division Head
Re: Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”)
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”) and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as the Depositor and the Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess Servicing Fees (the “Excess Servicing Fee Right”) for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing Fee Right has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee, Certificate Administrator or the Certificate Registrar is obligated so to register or qualify the Excess Servicing Fee Right, and (c) the Excess Servicing Fee Right may not be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and (A) the Depositor has received a certificate from the prospective transferor substantially in the form attached as Exhibit S-1 to the Pooling and Servicing Agreement, and
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(B) each of the Master Servicer and the Depositor have received a certificate from the prospective transferee substantially in the form attached as Exhibit S-2 to the Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer the Excess Servicing Fee Right or any interest therein except in compliance with the provisions of Section 8.10 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act, would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Excess Servicing Fee Right pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Excess Servicing Fee Right and any payments thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d) the nature, performance and servicing of the Mortgage Loans, and (e) all related matters that it has requested.
6. The Transferee is (a) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or (b) an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Excess Servicing Fee Right; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.
7. The Transferee agrees (i) to keep all information relating to the Trust, the Trust Fund and the parties to the Pooling and Servicing Agreement, and made available to it, confidential, (ii) not to use or disclose such information in any manner which could result in a
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violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificate pursuant to the Securities Act, and (iii) not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such holder’s auditors, legal counsel and regulators, except to the extent such disclosure is required by law, court order or other legal requirement or to the extent such information is of public knowledge at the time of disclosure by such holder or has become generally available to the public other than as a result of disclosure by such holder; provided, however, that such holder may provide all or any part of such information to any other Person who is contemplating an acquisition of the Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing such prospective acquisition and (y) agrees in writing to keep such information confidential, not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificates pursuant to the Securities Act and not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such Persons’ auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing Fee Right shall not have any rights under the Pooling and Servicing Agreement except as set forth in Section 8.10 of the Pooling and Servicing Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent provided in the Pooling and Servicing Agreement.
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
S-2-3 |
EXHIBIT T
FORM OF NOTE HOLDER CERTIFICATION
[Date]
U.S. Bank National Association
190 S. LaSalle Street, 7th Floor
Mail Code: MK-IL-SL7C
Chicago, Illinois 60603
Attention: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, |
Commercial Mortgage Pass-Through Certificates, | |
Series 2015-UBS7 | |
Re: | Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement, dated as of September 1, 2015 (the “Pooling and Servicing Agreement”; capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement), executed in connection with the above-referenced transaction, the undersigned hereby certifies and agrees as follows:
1. The undersigned is a holder of the following Serviced Companion Loan, B Note or Non-Serviced Companion Loan: [_]
2. The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
3. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website pursuant to the provisions of the Pooling and Servicing Agreement.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation of the related Certificates and from its accountants and attorneys (such persons, in each case, to be subject to the same requirement of confidentiality) and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require
T-1 |
registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
4. The undersigned shall be fully liable for any breach of the covenants or representations made by it or by any of its Representatives in this certification and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Trust Fund, the Underwriters and the Initial Purchasers for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
5. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations contained herein remain true and correct.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.
[ | ] |
By: | ||
Title: | ||
Company: | ||
Phone: |
T-2 |
SCHEDULE I
Bank of America Loan Schedule
(See attached)
Schedule I-1 |
Loan Number | Mortgage Loan Seller | Property Name | Cut-off Balance | Address | City | State | Note Date | Maturity/ARD Date | Interest Rate | Original
Balloon Term (Months) |
Remaining
Term to Maturity (Months) |
Original
Amort. Term (Months) |
ARD (Yes/No) | Primary Servicing Fee Rate | Pari Passu Primary Servicing Fee Rate | |||||||||||||||
2 | BANA | 261 Fifth Avenue | 70,000,000 | 261 Fifth Avenue | New York | NY | 8/6/2015 | 9/1/2025 | 4.4200% | 120 | 120 | 0 | No | 0.0000% | 0.0050% | |||||||||||||||
16 | BANA | Kensington Commons | 15,000,000 | 4142 Adams Avenue | San Diego | CA | 8/10/2015 | 9/1/2025 | 4.4700% | 120 | 120 | 360 | No | 0.0325% | 0.0000% | |||||||||||||||
20 | BANA | Rancho Carmel Plaza | 9,500,000 | 10155-10195 Rancho Carmel Drive | San Diego | CA | 8/6/2015 | 9/1/2025 | 4.6090% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
26 | BANA | Whittier Self Storage | 6,000,000 | 10230 Colima Road | Whittier | CA | 8/4/2015 | 9/1/2025 | 4.4400% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
27 | BANA | Waterchase Apartments | 5,900,000 | 15100 Golden Eagle | Humble | TX | 7/27/2015 | 8/1/2025 | 4.5410% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
28 | BANA | Aviare Place Apartments | 5,472,000 | 2600 West Loop 250 North | Midland | TX | 10/31/2014 | 11/1/2024 | 4.2600% | 120 | 110 | 360 | No | 0.0000% | 0.0050% | |||||||||||||||
29 | BANA | Somerset Meadows MHC | 4,950,000 | 5655 Blueridge Avenue | Kimball Township | MI | 5/29/2015 | 6/1/2025 | 4.3390% | 120 | 117 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
30 | BANA | Madrone Apartments | 4,550,000 | 15411-15499 Marty Drive | Glen Ellen | CA | 7/27/2015 | 8/1/2025 | 4.4530% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
42 | BANA | StorQuest - Loma Linda | 1,785,000 | 11105 Mountain View Avenue | Loma Linda | CA | 7/6/2015 | 8/1/2025 | 4.9000% | 120 | 119 | 360 | No | 0.0025% | 0.0000% |
Schedule I-2 |
SCHEDULE II
UBS Real Estate Securities Inc. Loan Schedule
(See attached)
Schedule II-1 |
Loan Number | Mortgage Loan Seller | Property Name | Cut-off Balance | Address | City | State | Note Date | Maturity/ARD Date | Interest Rate | Original
Balloon Term (Months) |
Remaining
Term to Maturity (Months) |
Original
Amort. Term (Months) |
ARD (Yes/No) | Primary Servicing Fee Rate | Pari Passu Primary Servicing Fee Rate | |||||||||||||||
1 | UBSRES | Charles River Plaza North | 72,884,027 | 185 Cambridge Street | Boston | MA | 7/7/2015 | 8/6/2025 | 4.1902% | 120 | 119 | 315 | Yes | 0.0000% | 0.0025% | |||||||||||||||
3 | UBSRES | Westin Hotel at the Domain | 70,000,000 | 11301 Domain Drive | Austin | TX | 8/7/2015 | 9/1/2025 | 4.1203% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
4 | UBSRES | The Panoramic | 52,500,000 | 1321 Mission Street | San Francisco | CA | 8/28/2015 | 9/6/2025 | 4.5515% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
5 | UBSRES | The Mall of New Hampshire | 50,000,000 | 1500 South Willow Street | Manchester | NH | 6/25/2015 | 7/1/2025 | 4.1080% | 120 | 118 | 0 | No | 0.0000% | 0.0025% | |||||||||||||||
6 | UBSRES | 651 Brannan Street | 45,000,000 | 651 Brannan Street | San Francisco | CA | 8/31/2015 | 9/6/2025 | 3.8000% | 120 | 120 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
7 | UBSRES | 200 Helen Street | 41,500,000 | 200 Helen Street | South Plainfield | NJ | 7/24/2015 | 8/6/2025 | 4.2845% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
8 | UBSRES | Holiday Inn JFK | 34,934,491 | 154-71 Brookville Boulevard | Rosedale | NY | 7/24/2015 | 8/6/2025 | 4.7510% | 120 | 119 | 276 | No | 0.0025% | 0.0000% | |||||||||||||||
9 | UBSRES | Pond’s Edge | 28,400,000 | 8650 Barbara Ann Way | Delmar | MD | 7/30/2015 | 8/6/2025 | 4.6554% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
10 | UBSRES | Preferred Freezer - Lynden, WA | 25,200,000 | 604 Curt Maberry Road | Lynden | WA | 9/4/2015 | 9/6/2025 | 4.3727% | 120 | 120 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
11 | UBSRES | Fountains at Andover | 22,050,000 | 3200 Todds Road | Lexington | KY | 8/19/2015 | 9/6/2025 | 4.6826% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
12 | UBSRES | WPC Department Store Portfolio | 20,100,000 | Various | Various | Various | 6/26/2015 | 7/6/2025 | 4.4065% | 120 | 118 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
12.01 | UBSRES | Brookfield | 4,783,575 | 95 North Moorland Road | Brookfield | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.02 | UBSRES | Mayfair | 4,424,246 | 2400 North Mayfair Road | Wauwatosa | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.03 | UBSRES | Southridge | 4,042,458 | 5300 South 76th Street | Greendale | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.04 | UBSRES | Bay Park | 2,852,179 | 303 Bay Park Square | Ashwaubenon | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.05 | UBSRES | Joliet | 2,155,978 | 3340 Mall Loop Drive | Joliet | IL | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.06 | UBSRES | West Acres | 1,841,564 | 3902 13th Avenue South | Fargo | ND | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
13 | UBSRES | Antioch Crossings Shopping Center | 17,150,000 | 3303-3421 Deer Valley Road | Antioch | CA | 8/24/2015 | 9/6/2025 | 4.6038% | 120 | 120 | 360 | No | 0.0525% | 0.0000% | |||||||||||||||
14 | UBSRES | DoubleTree McAllen | 16,500,000 | 1800 South 2nd Street | McAllen | TX | 9/1/2015 | 9/6/2025 | 4.2130% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
15 | UBSRES | Sweetwater Square | 15,500,000 | 3001-3009 Highland Avenue | National City | CA | 9/2/2015 | 9/6/2025 | 4.0800% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
17 | UBSRES | Dominion Ridge | 14,780,000 | 22211 IH 10 West | San Antonio | TX | 7/23/2015 | 8/6/2025 | 4.4560% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
18 | UBSRES | Southeast Retail Portfolio | 14,300,000 | Various | Various | Various | 9/1/2015 | 9/1/2025 | 4.5228% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
18.01 | UBSRES | Shops at Market Square | 2,606,771 | 5100 Daniels Parkway | Fort Myers | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.02 | UBSRES | Vero Beach Grand Oaks 2 | 2,606,771 | 6280 20th Street | Vero Beach | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.03 | UBSRES | Exotic Commercial | 2,544,705 | 2501 North Federal Highway | Fort Lauderdale | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.04 | UBSRES | Crossroads Starbucks | 1,924,045 | 15299 Crossroads Parkway | Gulfport | MS | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.05 | UBSRES | Vero Beach Grand Oaks | 1,737,847 | 6310 20th Street | Vero Beach | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.06 | UBSRES | Lafayette Properties | 1,197,873 | 5709 Johnston Street | Lafayette | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.07 | UBSRES | New Iberia LA Properties | 1,104,774 | 1103 East Admiral Doyle Drive | New Iberia | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.08 | UBSRES | Slidell Properties | 577,214 | 733 Brownswitch Road | Slidell | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
19 | UBSRES | Wichita Falls MF Portfolio | 12,985,448 | Various | Wichita Falls | TX | 8/11/2015 | 8/6/2025 | 4.7765% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
19.01 | UBSRES | Colony Park | 5,681,134 | 4700 Taft Boulevard | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
19.02 | UBSRES | Bentwood-Timberlane | 5,566,218 | 4515 Maplewood Avenue | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
19.03 | UBSRES | Park Place | 1,738,096 | 3611 Maplewood Avenue | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
21 | UBSRES | CW Investments - Charlottesville | 9,300,000 | 1501 Avon Street Extended | Charlottesville | VA | 8/31/2015 | 9/6/2025 | 4.5075% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
22 | UBSRES | Hyatt Place - Chester | 9,073,924 | 13148 Kingston Avenue | Chester | VA | 7/10/2015 | 7/6/2025 | 5.4070% | 120 | 118 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
23 | UBSRES | Regency Plaza | 9,000,000 | 548-550 Contra Costa Boulevard | Pleasant Hill | CA | 8/27/2015 | 9/6/2025 | 5.1995% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
24 | UBSRES | Sunrise Town Center | 8,500,000 | 3820-3860 Convoy Street | San Diego | CA | 7/31/2015 | 8/6/2025 | 4.3079% | 120 | 119 | 360 | No | 0.0600% | 0.0000% | |||||||||||||||
25 | UBSRES | Winter Haven | 8,074,896 | 50 Lake Charlotte Drive | Winter Haven | FL | 8/3/2015 | 8/6/2025 | 4.2860% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
31 | UBSRES | CW Investments - North Charlottesville | 4,400,000 | 3466 Seminole Trail | Charlottesville | VA | 8/31/2015 | 9/6/2025 | 4.5075% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
32 | UBSRES | Lockport Square | 4,290,687 | 16101 South Farrell Road | Lockport | IL | 7/6/2015 | 7/6/2025 | 4.9283% | 120 | 118 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
33 | UBSRES | CW Investments - Ocean City | 3,900,000 | 12537 Ocean Gateway | Ocean City | MD | 9/1/2015 | 9/6/2025 | 4.4295% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
34 | UBSRES | A Storage Place - Redlands | 3,700,000 | 650 New York Street | Redlands | CA | 7/30/2015 | 8/6/2025 | 4.2824% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
35 | UBSRES | 26-28-30 Commerce Drive | 3,688,463 | 26 - 30 Commerce Drive | Danbury | CT | 6/26/2015 | 7/6/2025 | 4.9448% | 120 | 118 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
36 | UBSRES | Gateway Medical Plaza | 3,306,631 | 4800 & 4820 Park Boulevard | Pinellas Park | FL | 7/31/2015 | 8/6/2025 | 5.1810% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
37 | UBSRES | Rite Aid - Carlisle | 3,244,766 | 431 South Hanover Street | Carlisle | PA | 7/21/2015 | 8/6/2025 | 4.7510% | 120 | 119 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
38 | UBSRES | A Storage Place - Indio II | 2,900,000 | 83050 Avenue 45 | Indio | CA | 7/30/2015 | 8/6/2025 | 4.2824% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
39 | UBSRES | CW Investments - Dumfries | 2,500,000 | 17625 Possum Point Road | Dumfries | VA | 9/1/2015 | 9/6/2025 | 4.4280% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
40 | UBSRES | CW Investments - Warrenton | 2,500,000 | 6437 Old Meetze Road | Warrenton | VA | 8/31/2015 | 9/6/2025 | 4.4575% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
41 | UBSRES | Michigan Self Storage Portfolio | 1,960,000 | Various | Various | MI | 8/12/2015 | 9/6/2025 | 4.9204% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
41.01 | UBSRES | Cedar Springs | 1,109,102 | 12505 Northland Drive Northeast | Algoma Township | MI | 4.9204% | 120 | 120 | 360 | ||||||||||||||||||||
41.02 | UBSRES | Sparta | 850,898 | 505 10 Mile Road Northwest | Sparta Township | MI | 4.9204% | 120 | 120 | 360 |
Schedule II-2 |
SCHEDULE III
List of Mortgage Loans Secured by the
Interest of the Related Mortgagor Under a Ground
Lease, Space Lease or Air Rights Lease (Section 8.3(i))
The Mall of New Hampshire
WPC Department Store Portfolio – Sweetwater Square
Southeast Retail Portfolio – Crossroads Starbucks
Whittier Self Storage
Schedule III-1 |
SCHEDULE IV
List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
None.
Schedule IV-1 |
SCHEDULE V
Certain Escrow Accounts for Which a Required
Repair is Outstanding Under
Section 5.1(g)
651 Brannan Street
Fountains at Andover
WPC Department Store Portfolio
Wichita Falls MF Portfolio
Aviare Place Apartments
StorQuest – Loma Linda
Schedule V-1 |
SCHEDULE VI
Mortgage Loans as to Which a Lender Register is to be Maintained
Charles River Plaza North
The Mall of New Hampshire
261 Fifth Avenue
200 Helen Street
Aviare Place Apartments
Schedule VI-1 |
SCHEDULE VII
Mortgage Loans Secured by Mortgaged Properties
Covered by an Environmental Insurance Policy
Rancho Carmel Plaza
Rite Aid - Carlisle
Schedule VII-1 |
SCHEDULE VIII
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum, the criteria identified below as “Relevant Servicing Criteria”.
Relevant Servicing Criteria | Applicable
Party(ies) | |
Reference | Criteria | |
General Servicing Considerations | ||
1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | Certificate Administrator Master Servicer Special Servicer |
1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. | Certificate Administrator Master Servicer Special Servicer Custodian (if such entity is not also the Certificate Administrator) |
1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained. | N/A |
1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | Certificate Administrator Trustee Master Servicer Special Servicer Custodian (if such entity is not also the Certificate Administrator) |
1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.1 | Certificate Administrator Master Servicer Special Servicer |
1 The servicing criteria in Item 1122(d)(1)(v) of Regulation AB shall be applicable on and after November 23, 2015.
Schedule VIII-1 |
Cash Collection and Administration | ||
1122(d)(2)(i) | Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer |
1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | Certificate Administrator |
1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | Master Servicer Special Servicer Trustee |
1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of over collateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer |
1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. | Certificate Administrator Master Servicer Special Servicer |
1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | Master Servicer Special Servicer Certificate Administrator |
1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer |
Investor Remittances and Reporting | ||
1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. | Certificate Administrator Trust Advisor (excluding clauses (C) and (D) in the case of the Trust Advisor) |
1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | Certificate Administrator |
Schedule VIII-2 |
1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Certificate Administrator’s investor records, or such other number of days specified in the transaction agreements. | Certificate Administrator |
1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | Certificate Administrator |
Pool Asset Administration | ||
1122(d)(4)(i) | Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents. | Custodian Master Servicer Special Servicer |
1122(d)(4)(ii) | Mortgage loan and related documents are safeguarded as required by the transaction agreements. | Custodian |
1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer |
1122(d)(4)(iv) | Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents. | Master Servicer Special Servicer |
1122(d)(4)(v) | The Master Servicer’s records regarding the mortgage loans agree with the Master Servicer’s records with respect to an obligor’s unpaid principal balance. | Master Servicer |
1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | Master Servicer Special Servicer |
1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | Special Servicer Trust Advisor |
1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | Master Servicer Special Servicer |
1122(d)(4)(ix) | Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents. | Master Servicer |
1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to | Master Servicer |
Schedule VIII-3 |
obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements. | ||
1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | Master Servicer |
1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | Master Servicer |
1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | Master Servicer |
1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | Master Servicer |
1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | N/A |
At all times that the Master Servicer and Special Servicer are the same entity, the Master Servicer and the Special Servicer may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.
Schedule VIII-4 |
SCHEDULE IX
Additional Form 10-D Disclosure
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.4 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator (or the Master Servicer, to the extent specified in Section 13.4 of the Pooling and Servicing Agreement) any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-D | Party Responsible |
Item 1: Distribution and Pool Performance Information: · Item 1121 of Regulation AB (other than information contained in the Distribution Date Statement)
|
· Master Servicer (only with respect to Item 1121(a)(12) of Regulation AB as to non-Specially Serviced Mortgage Loans) · Certificate Administrator · Depositor |
[Item 1A: Asset-Level Information]* |
· [Master Servicer · Special Servicer (only with respect to Specially Serviced Loans and only to the extent such information has not already been provided to the Master Servicer in a CREFC® report for the related reporting period)] |
Item 2: Legal Proceedings: · Item 1117 of Regulation AB (to the extent material to Certificateholders)
|
· Master Servicer (as to itself) · Special Servicer (as to itself) · Certificate Administrator (as to itself) · Trustee (as to itself) · Custodian (as to itself) (if such entity is not also the Certificate Administrator) · Depositor (as to itself) · Any other Reporting Servicer (as to itself) |
Schedule IX-1 |
· Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust · Each Seller as sponsor (as defined in Regulation AB) · Originators under Item 1110 of Regulation AB · Party under Item 1100(d)(1) of Regulation AB | |
Item 3: Sale of Securities and Use of Proceeds | · Depositor |
Item 4: Defaults Upon Senior Securities |
· Certificate Administrator · Trustee |
Item 5: Submission of Matters to a Vote of Security Holders |
· Certificate Administrator · Trustee · Depositor |
Item 6: Significant Obligors of Pool Assets |
· Depositor · Sponsor · Applicable Seller · Master Servicer |
[Item 7: Change in Sponsor Interest in the Securities]** | · [Each Mortgage Loan Seller as to itself and its affiliates]** |
[Item 7] [Item 8]**: Significant Enhancement Provider Information | · Depositor |
[Item 8] [Item 9]**: Other Information |
· Certificate Administrator (including the balances of the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account and the TA Unused Fees Account as of the related Distribution Date and the preceding Distribution Date) · Master Servicer (with respect to the balances of each REO Account (to the extent the related information has been received from the Special Servicer within the time period specified in Section 13.4 of the Pooling and Servicing Agreement) and the Collection Account as of the related Distribution Date and the preceding Distribution Date) · Special Servicer (with respect to the balance of each REO Account as of the related Distribution Date and the |
Schedule IX-2 |
preceding Distribution Date) · Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders) | |
[Item 9] [Item 10]**: Exhibits |
· Certificate Administrator · Depositor · Master Servicer · Special Servicer |
* | Effective from and after November 23, 2016. |
* | Form 10-D was amended, effective November 24, 2014, by adding new Item 7 in Part II and redesignating Items 7, 8 and 9 as Items 8, 9 and 10 as part of amendments related to the offering process, disclosure, and reporting for asset-backed securities, however, the requirement to provide Additional Form 10-D with respect to Item 7 shall not apply until November 23, 2015. New Item 7 will only be applicable (and newly numbered Items 8, 9 and 10 will only reflect their new numbers) on and after November 24, 2015. |
Schedule IX-3 |
SCHEDULE X
Additional Form 10-K Disclosure
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.5 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or a Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-K | Party Responsible |
Item 1B: Unresolved Staff Comments | · Depositor |
Item 9B: Other Information |
· Certificate Administrator · Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders) |
Item 15: Exhibits, Financial Statement Schedules |
· Certificate Administrator · Depositor |
Additional Item:
Disclosure per Item 1117 of Regulation AB (to the extent material to Certificateholders)
|
· Master Servicer (as to itself) · Special Servicer (as to itself) · Certificate Administrator (as to itself) · Trustee (as to itself) · Custodian (as to itself) (if such entity is not also the Certificate Administrator) · Depositor (as to itself) · Any other Reporting Servicer (as to itself) · Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust · Each Seller as sponsor (as defined in |
Schedule X-1 |
Regulation AB) · Originators under Item 1110 of Regulation AB · Party under Item 1100(d)(1) of Regulation AB | |
Additional Item: Disclosure per Item 1119 of Regulation AB
|
· Master Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Special Servicer, significant obligor contemplated by Item 1112, the Trust Advisor, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) · Special Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Master Servicer, significant obligor contemplated by Item 1112, the Trust Advisor, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) · Certificate Administrator (as to itself) (to the extent material to Certificateholders) · Trustee (as to itself) (to the extent material to Certificateholders) · Custodian (as to itself, if such entity is not also the Certificate Administrator) (to the extent material to Certificateholders) · Depositor (as to itself and the Trust) · Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Trust Advisor/Special Servicer as to the Trust |
Schedule X-2 |
· Each Seller as sponsors (as defined in Regulation AB) · Originators under Item 1110 of Regulation AB (to be provided by the Depositor) · Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor) | |
Additional Item: Disclosure per Item 1112(b) of Regulation AB
|
· Depositor · Each Applicable Seller as sponsor (as defined in Regulation AB) · Master Servicer |
Additional Item: Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB
|
· Depositor |
Schedule X-3 |
SCHEDULE XI
Form 8-K Disclosure Information
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.7 of the Pooling and Servicing Agreement to report to the Depositor and the Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or a Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 8-K | Party Responsible |
Item 1.01- Entry into a Material Definitive Agreement
Disclosure is required regarding entry into or amendment of any definitive agreement that is material to the securitization, even if depositor is not a party.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive agreements that are fully disclosed in the prospectus |
· Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust) |
Item 1.02- Termination of a Material Definitive Agreement
Disclosure is required regarding termination of any definitive agreement that is material to the securitization (other than expiration in accordance with its terms), even if depositor is not a party. |
· Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust) |
Schedule XI-1 |
Examples: servicing agreement, custodial agreement. |
|
Item 1.03- Bankruptcy or Receivership | · Depositor |
Item 2.04- Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
Includes an early amortization, performance trigger or other event, including event of default, that would materially alter the payment priority/distribution of cash flows/amortization schedule.
Disclosure will be made of events other than waterfall triggers which are disclosed in the monthly statements to the Certificateholders. |
· Depositor · Certificate Administrator (with respect to an Obligation under an Off-Balance Sheet Arrangement, if any)
|
Item 3.03- Material Modification to Rights of Security Holders
Disclosure is required of any material modification to documents defining the rights of Certificateholders, including the Pooling and Servicing Agreement. |
· Certificate Administrator |
Item 5.03- Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Disclosure is required of any amendment “to the governing documents of the issuing entity”. |
· Depositor |
Item 5.07 - Submission of Matters to a Vote of Security Holders |
· Certificate Administrator · Trustee · Depositor |
Item 6.01- ABS Informational and Computational Material | · Depositor |
Item 6.02- Change of Servicer or Trustee
Requires disclosure of any removal, replacement, substitution or addition of any master servicer, affiliated servicer, other servicer servicing 10% or more of pool assets at time of report, other material servicers or trustee. |
· Master Servicer (as to itself or a servicer retained by it) · Special Servicer (as to itself or a servicer retained by it) · Certificate Administrator (as to itself as Certificate Administrator) · Custodian (as to itself as Custodian) (if such entity is not also the Certificate |
Schedule XI-2 |
Administrator) · Trustee (as to Trustee) · Depositor | |
Reg AB disclosure about any new servicer or master servicer is required. | · Master Servicer or Special Servicer, as applicable (in each case, as to itself, or a sub-servicer retained by it) |
Reg AB disclosure about any new Trustee is required. | · Trustee |
Reg AB disclosure about any new Certificate Administrator is required. | · Certificate Administrator |
Reg AB disclosure about any new Custodian is required. | · Custodian (if such entity is not also the Certificate Administrator) |
Item 6.03- Change in Credit Enhancement or Other External Support |
· Depositor · Certificate Administrator |
Item 6.04- Failure to Make a Required Distribution | · Certificate Administrator |
Item 6.05- Securities Act Updating Disclosure
If any material pool characteristic differs by 5% or more at the time of issuance of the securities from the description in the final prospectus, provide updated Reg AB disclosure about the actual asset pool.
If there are any new servicers or originators required to be disclosed under Regulation AB as a result of the foregoing, provide the information called for in Items 1108 and 1110 respectively. |
· Depositor |
Item 7.01- Regulation FD Disclosure | · Depositor |
Item 8.01 – Other Events
Any event, with respect to which information is not otherwise called for in Form 8-K, that the registrant deems of importance to Certificateholders. |
· Depositor · Master Servicer, Special Servicer and each Applicable Seller as sponsor (as defined in Regulation AB)
|
Item 9.01 - Financial Statements and Exhibits | · Responsible party for reporting/disclosing the financial statement or exhibit |
Schedule XI-3 |
SCHEDULE XII
Additional Disclosure Notification
INSTRUCTIONS:
FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO [CMBS.TRANSACTIONS@USBANK.COM], LELAND.F.BUNCH@BAML.COM AND VIA FIRST CLASS MAIL TO BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT MAIL TO THE ADDRESSES IMMEDIATELY BELOW
U.S. Bank National Association, as Certificate Administrator
Corporate Trust Office
190 S. LaSalle Street, 7th Floor
Mail Code: MK-IL-SL7C
Chicago, Illinois 60603
Attn: [Corporate Trust Services—]BACM 2015-UBS7[—SEC REPORT PROCESSING]
Email: [cmbs.transactions@usbank.com]
Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch
Facsimile number: (646) 855-5044
Email: leland.f.bunch@baml.com
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, dated as of [ ][ ], 2015, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ]. the undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
[With respect to Collection Account and REO Account balance information:
Account Name | Beginning Balance as of MM/DD/YYYY |
Ending Balance as of MM/DD/YYYY |
Collection Account | ||
REO Account |
Schedule XII-1 |
]
List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role] |
|||
By: | |||
Name: | |||
Title: |
Schedule XII-2 |
SCHEDULE XIII
Seller Sub-Servicers
Holliday Fenoglio Fowler, L.P.
NorthMarq Capital, LLC
NRC Group, Inc
Schedule XIII-1 |
SCHEDULE XIV
Letters of Credit
651 Brannan Street
Schedule XIV-1 |
SCHEDULE XV
Class A-SB Planned Principal Balance
Month |
Balance ($) |
Month |
Balance ($) |
Month |
Balance($) | |||||
Closing Date | 62,400,000.00 | 40 | 62,400,000.00 | 80 | 43,560,937.78 | |||||
1 | 62,400,000.00 | 41 | 62,400,000.00 | 81 | 42,623,121.53 | |||||
2 | 62,400,000.00 | 42 | 62,400,000.00 | 82 | 41,621,796.46 | |||||
3 | 62,400,000.00 | 43 | 62,400,000.00 | 83 | 40,676,527.69 | |||||
4 | 62,400,000.00 | 44 | 62,400,000.00 | 84 | 39,722,146.93 | |||||
5 | 62,400,000.00 | 45 | 62,400,000.00 | 85 | 38,703,990.26 | |||||
6 | 62,400,000.00 | 46 | 62,400,000.00 | 86 | 37,742,028.17 | |||||
7 | 62,400,000.00 | 47 | 62,400,000.00 | 87 | 36,716,506.32 | |||||
8 | 62,400,000.00 | 48 | 62,400,000.00 | 88 | 35,746,905.04 | |||||
9 | 62,400,000.00 | 49 | 62,400,000.00 | 89 | 34,773,578.00 | |||||
10 | 62,400,000.00 | 50 | 62,400,000.00 | 90 | 33,618,024.22 | |||||
11 | 62,400,000.00 | 51 | 62,400,000.00 | 91 | 32,636,509.14 | |||||
12 | 62,400,000.00 | 52 | 62,400,000.00 | 92 | 31,591,991.82 | |||||
13 | 62,400,000.00 | 53 | 62,400,000.00 | 93 | 30,602,688.35 | |||||
14 | 62,400,000.00 | 54 | 62,400,000.00 | 94 | 29,550,604.70 | |||||
15 | 62,400,000.00 | 55 | 62,400,000.00 | 95 | 28,553,453.41 | |||||
16 | 62,400,000.00 | 56 | 62,400,000.00 | 96 | 27,552,469.72 | |||||
17 | 62,400,000.00 | 57 | 62,400,000.00 | 97 | 26,489,038.89 | |||||
18 | 62,400,000.00 | 58 | 62,400,000.00 | 98 | 25,480,118.25 | |||||
19 | 62,400,000.00 | 59 | 62,400,000.00 | 99 | 24,408,976.76 | |||||
20 | 62,400,000.00 | 60 | 62,344,884.61 | 100 | 23,392,058.60 | |||||
21 | 62,400,000.00 | 61 | 61,416,895.47 | 101 | 22,371,231.54 | |||||
22 | 62,400,000.00 | 62 | 60,547,690.89 | 102 | 21,230,565.77 | |||||
23 | 62,400,000.00 | 63 | 59,613,021.10 | 103 | 20,201,425.20 | |||||
24 | 62,400,000.00 | 64 | 58,736,887.34 | 104 | 19,110,640.29 | |||||
25 | 62,400,000.00 | 65 | 57,857,389.28 | 105 | 13,041,057.82 | |||||
26 | 62,400,000.00 | 66 | 56,789,130.76 | 106 | 11,951,439.83 | |||||
27 | 62,400,000.00 | 67 | 55,902,145.05 | 107 | 10,914,457.55 | |||||
28 | 62,400,000.00 | 68 | 54,950,201.14 | 108 | 9,873,486.95 | |||||
29 | 62,400,000.00 | 69 | 54,056,150.62 | 109 | 8,772,076.99 | |||||
30 | 62,400,000.00 | 70 | 53,097,343.35 | 110 | 7,722,864.00 | |||||
31 | 62,400,000.00 | 71 | 52,196,174.16 | 111 | 6,613,446.64 | |||||
32 | 62,400,000.00 | 72 | 51,291,543.81 | 112 | 5,555,928.31 | |||||
33 | 62,400,000.00 | 73 | 50,322,458.40 | 113 | 4,494,342.11 | |||||
34 | 62,400,000.00 | 74 | 49,410,628.69 | 114 | 3,261,368.31 | |||||
35 | 62,400,000.00 | 75 | 48,434,549.20 | 115 | 2,190,948.75 | |||||
36 | 62,400,000.00 | 76 | 47,515,465.22 | 116 | 1,060,929.38 | |||||
37 | 62,400,000.00 | 77 | 46,592,850.79 | 116 and thereafter | 0.00 | |||||
38 | 62,400,000.00 | 78 | 45,485,497.78 | |||||||
39 | 62,400,000.00 | 79 | 44,555,077.64 |
Schedule XV-1 |
SCHEDULE XVI
Hospitality Properties Subject to Franchise, Management or Similar Agreement
Westin Hotel at the Domain
Holiday Inn JFK
DoubleTree McAllen
Hyatt Place - Chester
Schedule XVI-1 |
SCHEDULE XVII
Designated
Escrow/Reserve Mortgage Loans
651 Brannan Street
200 Helen Street
Fountains at Andover
Regency Plaza
Lockport Square
Schedule XVII-1 |
Exhibit 4.2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP.,
Depositor,
Midland
Loan Services, a Division of PNC Bank, National Association,
Master Servicer,
RIALTO
CAPITAL ADVISORS, LLC,
Special Servicer,
PENTALPHA
SURVEILLANCE LLC,
Operating Advisor,
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
Certificate Administrator,
and
Wells
Fargo Bank, National Association,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2015
Commercial Mortgage Pass-Through Certificates
Series 2015-C3
TABLE OF CONTENTS
Page | ||
ARTICLE I | ||
DEFINITIONS | ||
Section 1.01 | Defined Terms | 4 |
Section 1.02 | Certain Calculations | 111 |
Section 1.03 | Certain Constructions | 115 |
ARTICLE II | ||
CONVEYANCE OF MORTGAGE LOANS; | ||
ORIGINAL ISSUANCE OF CERTIFICATES | ||
Section 2.01 | Conveyance of Mortgage Loans | 115 |
Section 2.02 | Acceptance by the Trustee, the Custodian and the Certificate Administrator | 119 |
Section 2.03 | Mortgage Loan Sellers’ Repurchase, Substitution or Cures of Mortgage Loans for Document Defects in Mortgage Files and Breaches of Representations and Warranties | 121 |
Section 2.04 | Representations and Warranties of the Depositor | 126 |
Section 2.05 | Representations, Warranties and Covenants of the Master Servicer | 128 |
Section 2.06 | Representations, Warranties and Covenants of the Special Servicer | 130 |
Section 2.07 | Representations and Warranties of the Trustee | 131 |
Section 2.08 | Representations and Warranties of the Certificate Administrator | 133 |
Section 2.09 | Representations, Warranties and Covenants of the Operating Advisor | 134 |
Section 2.10 | Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests | 136 |
Section 2.11 | Miscellaneous REMIC and Grantor Trust Provisions | 136 |
ARTICLE III | ||
ADMINISTRATION AND SERVICING | ||
OF THE MORTGAGE LOANS | ||
Section 3.01 | Master Servicer to Act as Master Servicer; Administration of the Mortgage Loans; Sub-Servicing Agreements; Non-Serviced Mortgage Loans | 137 |
Section 3.02 | Liability of the Master Servicer | 147 |
Section 3.03 | Collection of Certain Mortgage Loan Payments | 148 |
Section 3.04 | Collection of Taxes, Assessments and Similar Items; Escrow Accounts | 149 |
Section 3.05 | Collection Account; Distribution Accounts; Excess Liquidation Proceeds Reserve Account; and Excess Interest Distribution Account | 152 |
Section 3.05A | Serviced Whole Loan Custodial Account | 155 |
-i- |
Section 3.06 | Permitted Withdrawals from the Collection Account | 157 |
Section 3.06A | Permitted Withdrawals from the Serviced Whole Loan Custodial Account | 162 |
Section 3.07 | Investment of Funds in the Collection Account, the Excess Interest Distribution Account, the REO Account, the Interest Reserve Account, the Mortgagor Accounts, the Excess Liquidation Proceeds Reserve Account and Other Accounts | 167 |
Section 3.08 | Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage | 169 |
Section 3.09 | Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses; Assumption Agreements; Defeasance Provisions | 174 |
Section 3.10 | Appraisal Reductions; Realization Upon Defaulted Mortgage Loans | 179 |
Section 3.11 | Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files | 186 |
Section 3.12 | Servicing Fees, Trustee/Certificate Administrator Fees and Special Servicing Compensation | 187 |
Section 3.13 | Compensating Interest Payments | 194 |
Section 3.14 | Application of Penalty Charges and Modification Fees | 194 |
Section 3.15 | Access to Certain Documentation | 195 |
Section 3.16 | Title and Management of REO Properties | 198 |
Section 3.17 | Sale of Defaulted Mortgage Loans and REO Properties; Sale of Non-Serviced Mortgage Loans | 202 |
Section 3.18 | Additional Obligations of the Master Servicer; Inspections Obligation to Notify Ground Lessors; Delivery of Certain Reports to the Companion Loan Holder | 209 |
Section 3.19 | Lockbox Accounts, Escrow Accounts | 210 |
Section 3.20 | Property Advances | 211 |
Section 3.21 | Appointment of Special Servicer; Asset Status Reports | 215 |
Section 3.22 | Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping | 220 |
Section 3.23 | Interest Reserve Account | 221 |
Section 3.24 | Modifications, Waivers and Amendments | 222 |
Section 3.25 | Additional Obligations with Respect to Certain Mortgage Loans | 226 |
Section 3.26 | Additional Matters Regarding Advance Reimbursement | 226 |
Section 3.27 | Companion Loan Co-Lender Matters | 228 |
Section 3.28 | Appointment and Duties of the Operating Advisor | 233 |
Section 3.29 | Rating Agency Confirmation | 238 |
Section 3.30 | Certain Matters Relating to the Non-Serviced Mortgage Loans | 241 |
Section 3.31 | General Acknowledgement Regarding Companion Loan Holders | 242 |
Section 3.32 | Litigation Control | 242 |
ARTICLE IV | ||
DISTRIBUTIONS TO CERTIFICATEHOLDERS | ||
Section 4.01 | Distributions | 246 |
-ii- |
Section 4.02 | Statements to Certificateholders; Certain Reports by the Master Servicer and the Special Servicer | 255 |
Section 4.03 | Compliance with Withholding Requirements | 267 |
Section 4.04 | REMIC Compliance | 268 |
Section 4.05 | Imposition of Tax on the Trust REMICs | 270 |
Section 4.06 | Remittances; P&I Advances | 271 |
Section 4.07 | Grantor Trust Reporting | 275 |
ARTICLE V | ||
THE CERTIFICATES | ||
Section 5.01 | The Certificates | 276 |
Section 5.02 | Form and Registration | 277 |
Section 5.03 | Registration, Transfer and Exchange of Certificates | 280 |
Section 5.04 | Mutilated, Destroyed, Lost or Stolen Certificates | 287 |
Section 5.05 | Persons Deemed Owners | 287 |
Section 5.06 | Appointment of Paying Agent | 287 |
Section 5.07 | Access to Certificateholders’ Names and Addresses; Special Notices | 288 |
Section 5.08 | Actions of Certificateholders | 288 |
Section 5.09 | Authenticating Agent | 289 |
Section 5.10 | Appointment of Custodian | 290 |
Section 5.11 | Maintenance of Office or Agency | 291 |
ARTICLE VI | ||
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE | ||
OPERATING ADVISOR AND THE CONTROLLING CLASS REPRESENTATIVE | ||
Section 6.01 | Liability of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor | 291 |
Section 6.02 | Merger or Consolidation of the Master Servicer, the Special Servicer and the Operating Advisor | 291 |
Section 6.03 | Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and Others | 292 |
Section 6.04 | Limitation on Resignation of the Master Servicer, the Special Servicer or the Operating Advisor | 294 |
Section 6.05 | Rights of the Depositor, the Trustee and the Certificate Administrator in Respect of the Master Servicer and Special Servicer | 296 |
Section 6.06 | Master Servicer, Special Servicer as Owner of a Certificate | 297 |
Section 6.07 | Rating Agency Fees | 297 |
Section 6.08 | Termination of the Special Servicer Without Cause | 298 |
Section 6.09 | The Controlling Class Representative | 302 |
-iii- |
ARTICLE VII | ||
DEFAULT | ||
Section 7.01 | Servicer Termination Events | 308 |
Section 7.02 | Trustee to Act; Appointment of Successor | 315 |
Section 7.03 | Notification to Certificateholders | 316 |
Section 7.04 | Other Remedies of Trustee | 317 |
Section 7.05 | Waiver of Past Servicer Termination Events and Operating Advisor Termination Events; Termination | 317 |
Section 7.06 | Termination of the Operating Advisor | 319 |
ARTICLE VIII | ||
CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR | ||
Section 8.01 | Duties of the Trustee and the Certificate Administrator | 322 |
Section 8.02 | Certain Matters Affecting the Trustee and the Certificate Administrator | 325 |
Section 8.03 | Neither the Trustee Nor the Certificate Administrator Is Liable for Certificates or Mortgage Loans | 328 |
Section 8.04 | Trustee and Certificate Administrator May Own Certificates | 329 |
Section 8.05 | Payment of Trustee/Certificate Administrator Fees and Expenses; Indemnification | 329 |
Section 8.06 | Eligibility Requirements for the Trustee and the Certificate Administrator | 332 |
Section 8.07 | Resignation and Removal of the Trustee or the Certificate Administrator | 333 |
Section 8.08 | Successor Trustee or Successor Certificate Administrator | 335 |
Section 8.09 | Merger or Consolidation of the Trustee or the Certificate Administrator | 335 |
Section 8.10 | Appointment of Co-Trustee or Separate Trustee | 336 |
Section 8.11 | Access to Certain Information | 337 |
Section 8.12 | Compliance with the Patriot Act | 339 |
ARTICLE IX | ||
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE | ||
Section 9.01 | Termination; Optional Mortgage Loan Purchase | 339 |
ARTICLE X | ||
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE | ||
Section 10.01 | Intent of the Parties; Reasonableness | 344 |
Section 10.02 | Filing Obligations | 346 |
Section 10.03 | Form 10-D Filings | 347 |
Section 10.04 | Form 10-K Filings | 349 |
Section 10.05 | Sarbanes-Oxley Certification | 352 |
-iv- |
Section 10.06 | Form 8-K Filings | 353 |
Section 10.07 | Annual Compliance Statements | 355 |
Section 10.08 | Annual Reports on Assessment of Compliance with Servicing Criteria | 356 |
Section 10.09 | Annual Independent Public Accountants’ Servicing Report | 358 |
Section 10.10 | Significant Obligors | 359 |
Section 10.11 | Indemnification | 360 |
Section 10.12 | Amendments | 362 |
Section 10.13 | Regulation AB Notices | 362 |
Section 10.14 | Termination of the Certificate Administrator | 362 |
Section 10.15 | Termination of the Master Servicer or the Special Servicer | 363 |
Section 10.16 | Termination of Sub-Servicing Agreements | 363 |
Section 10.17 | Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan | 363 |
Section 10.18 | Termination of Exchange Act Filings with Respect to the Trust | 366 |
ARTICLE XI | ||
MISCELLANEOUS PROVISIONS | ||
Section 11.01 | Counterparts | 366 |
Section 11.02 | Limitation on Rights of Certificateholders | 366 |
Section 11.03 | Governing Law | 367 |
Section 11.04 | Notices | 367 |
Section 11.05 | Severability of Provisions | 370 |
Section 11.06 | Notice to the Rule 17g-5 Information Provider, the Depositor and Each Rating Agency | 370 |
Section 11.07 | Amendment | 371 |
Section 11.08 | Confirmation of Intent | 375 |
Section 11.09 | Third-Party Beneficiaries | 375 |
Section 11.10 | Request by Certificateholders or Companion Loan Holders | 375 |
Section 11.11 | Waiver of Jury Trial | 376 |
Section 11.12 | Submission to Jurisdiction | 376 |
Section 11.13 | Exchange Act Rule 17g-5 Procedures | 376 |
Section 11.14 | Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Loan Agreements | 381 |
TABLE OF EXHIBITS | ||
Exhibit A-1 | Form of Class A-1 Certificate | |
Exhibit A-2 | Form of Class A-2 Certificate | |
Exhibit A-3 | Form of Class A-3 Certificate | |
Exhibit A-4 | Form of Class A-4 Certificate | |
Exhibit A-5 | Form of Class A-SB Certificate | |
Exhibit A-6 | Form of Class X-A Certificate | |
Exhibit A-7 | Form of Class X-B Certificate | |
Exhibit A-8 | Form of Class X-D Certificate | |
Exhibit A-9 | Form of Class X-E Certificate |
-v- |
Exhibit A-10 | Form of Class X-F Certificate | |
Exhibit A-11 | Form of Class X-NR Certificate | |
Exhibit A-12 | Form of Class A-S Certificate | |
Exhibit A-13 | Form of Class B Certificate | |
Exhibit A-14 | Form of Class C Certificate | |
Exhibit A-15 | Form of Class D Certificate | |
Exhibit A-16 | Form of Class E Certificate | |
Exhibit A-17 | Form of Class F Certificate | |
Exhibit A-18 | Form of Class NR Certificate | |
Exhibit A-19 | Form of Class R Certificate | |
Exhibit A-20 | Form of Class Z Certificate | |
Exhibit B | Mortgage Loan Schedule | |
Exhibit C | Form of Request for Release | |
Exhibit D | Form of Distribution Date Statement | |
Exhibit E | Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate | |
Exhibit F | Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate | |
Exhibit G | Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period | |
Exhibit H | Form of Certification to be given by Beneficial Owner of Temporary Regulation S Global Certificate | |
Exhibit I | Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Global Certificate | |
Exhibit J | Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Global Certificate | |
Exhibit K | Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Global Certificate | |
Exhibit L-1 | Form of Affidavit Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of the Internal Revenue Code of 1986, as Amended | |
Exhibit L-2 | Form of Transferor Letter | |
Exhibit L-3 | Form of Transferee Letter | |
Exhibit L-4 | Form of Investment Representation Letter | |
Exhibit M-1 | Form of Investor Certification for Obtaining Information and Notices (for parties other than the Controlling Class Representative and Controlling Class Certificateholder) | |
Exhibit M-2 | Form of Investor Certification for Exercising Voting Rights | |
Exhibit M-3 | Form of Online Vendor Certification | |
Exhibit M-4 | Form of Confidentiality Agreement | |
Exhibit M-5 | Form of NRSRO Certification | |
Exhibit N | Custodian Certification | |
Exhibit O | Servicing Criteria to be Addressed in Assessment of Compliance | |
Exhibit P | Supplemental Servicer Schedule | |
Exhibit Q | [Reserved] | |
Exhibit R | Form of Operating Advisor Annual Report | |
Exhibit S | Sub-Servicing Agreements |
-vi- |
Exhibit T | Form of Recommendation of Special Servicer Termination | |
Exhibit U | Additional Form 10-D Disclosure | |
Exhibit V | Additional Form 10-K Disclosure | |
Exhibit W | Form of Additional Disclosure Notification | |
Exhibit X | Form Certification to be Provided with Form 10-K | |
Exhibit Y-1 | Form of Certification to be Provided to Depositor by the Certificate Administrator | |
Exhibit Y-2 | Form of Certification to be Provided to Depositor by the Master Servicer | |
Exhibit Y-3 | Form of Certification to be Provided to Depositor by the Special Servicer | |
Exhibit Y-4 | Form of Certification to be Provided to Depositor by the Operating Advisor | |
Exhibit Z | Form 8-K Disclosure Information | |
Exhibit AA-1 | Form of Power of Attorney for Master Servicer | |
Exhibit AA-2 | Form of Power of Attorney for Special Servicer | |
Exhibit BB | Class A-SB Scheduled Principal Balance | |
Exhibit CC-1 | Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights | |
Exhibit CC-2 | Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights | |
Exhibit DD | Form of Notice and Certification Regarding Defeasance of Mortgage Loan | |
Exhibit EE | Form of Notice Regarding Non-Serviced Mortgage Loan | |
Exhibit FF | Mortgage Loans with Escrows, Reserves, Holdbacks and Related Letters of Credit Exceeding 10% of the Initial Principal Balance | |
Exhibit GG | Form of Notice Regarding Mezzanine Loan Default | |
Exhibit HH | Mortgage Loans as to Which a Note Register is to be Maintained |
-vii- |
Pooling and Servicing Agreement, dated as of August 1, 2015, among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued hereunder in multiple classes which in the aggregate will evidence the entire beneficial ownership interest in the Trust Fund consisting primarily of the Mortgage Loans. As provided herein, the Certificate Administrator will elect that two segregated portions of the Trust Fund (other than the Excess Interest, the Excess Interest Distribution Amount and the proceeds thereof) be treated for federal income tax purposes as two separate REMICs (each, a “Trust REMIC” or, in the alternative, the “Upper-Tier REMIC” and the “Lower-Tier REMIC”, respectively). The Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F and Class X-NR Certificates will represent “regular interests” in the Upper-Tier REMIC and the Upper-Tier Residual Interest will represent the sole class of “residual interests” in the Upper-Tier REMIC.
There are also (i) 12 classes of uncertificated Lower-Tier Regular Interests issued under this Agreement (the Class LA-1, Class LA-2, Class LA-3, Class LA-4, Class LA-SB, Class LA-S, Class LB, Class LC, Class LD, Class LE, Class LF and Class LNR Interests), each of which will constitute a class of “regular interests” in the Lower-Tier REMIC, and (ii) the Lower-Tier Residual Interest, which will represent the sole class of “residual interests” in the Lower-Tier REMIC.
The Lower-Tier Regular Interests will be held by the Trustee as assets of the Upper-Tier REMIC. The Class R Certificates will represent both the Lower-Tier Residual Interest and the Upper-Tier Residual Interest.
For the avoidance of doubt, any cash collateral posted by the holder of the Charles River Plaza North Subordinate Companion Loan (as described in Section 3.10(a) of this Agreement) will not be an asset of either Trust REMIC but will be an “outside reserve fund” within the meaning of Treasury Regulation Section 1.860G-2(h) beneficially owned by such holder.
UPPER-TIER REMIC
The following table sets forth the Class designation, the approximate initial pass-through rate (the “Pass-Through Rate”), the aggregate initial principal balance (the “Original Certificate Principal Balance”) or, in the case of the Class X-A, Class X-B, Class X-D,
Class X-E, Class X-F and Class X-NR Certificates, notional amount (the “Original Notional Amount”), as applicable, and the initial ratings given each Class by the Rating Agencies (the “Original Ratings”) for each Class of Certificates comprising or evidencing the interests in the Upper-Tier REMIC created hereunder:
Class Designation | Approximate | Original | Original
Ratings | ||||||||
Class A-1 | 1.7167 | % | $ | 60,509,000 | Aaa(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class A-2 | 3.0326 | % | $ | 148,324,000 | Aaa(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class A-3 | 3.4465 | % | $ | 200,000,000 | Aaa(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class A-4 | 3.7182 | % | $ | 502,390,000 | Aaa(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class A-SB | 3.4481 | % | $ | 82,627,000 | Aaa(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class X-A | 1.0395 | %(2) | $ | 1,080,812,000 | (3) | Aa1(sf)/AAAsf/AAA(sf)/AAA | |||||
Class X-B | 0.2500 | %(2) | $ | 86,961,000 | (3) | NR/AA-sf/AAA(sf)/AAA | |||||
Class X-D | 1.0000 | %(2) | $ | 72,764,000 | (3) | NR/BBB-sf/BBB-(sf)/BBB | |||||
Class X-E | 1.2876 | %(2) | $ | 35,495,000 | (3) | NR/BB-sf/BB-(sf)/AAA | |||||
Class X-F | 1.2876 | %(2) | $ | 14,197,000 | (3) | NR/B-sf/B-(sf)/AAA | |||||
Class X-NR | 1.2876 | %(2) | $ | 65,666,014 | (3) | NR/NR/NR/AAA | |||||
Class A-S | 4.0532 | % | $ | 86,962,000 | Aa2(sf)/AAAsf/AAA(sf)/AAA | ||||||
Class B | 4.2576 | % | $ | 86,961,000 | NR/AA-sf/AA-(sf)/AA | ||||||
Class C | 4.5076 | % | $ | 63,891,000 | NR/A-sf/A-(sf)/A- | ||||||
Class D | 3.5076 | % | $ | 72,764,000 | NR/BBB-sf/BBB-(sf)/BBB | ||||||
Class E | 3.2200 | % | $ | 35,495,000 | NR/BB-sf/BB-(sf)/BB | ||||||
Class F | 3.2200 | % | $ | 14,197,000 | NR/B-sf/B-(sf)/B+ | ||||||
Class NR | 3.2200 | % | $ | 65,666,014 | NR/NR/NR/NR | ||||||
Class R(4) | N/A | N/A | NR/NR/NR/NR |
(1) | The Certificates marked with “NR” have not been rated by the applicable Rating Agency. |
(2) | The Class X-A Pass-Through Rate is variable and, for each Distribution Date, will equal the weighted average of the Class X Strip Rates for the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB and Class A-S Components for such Distribution Date (weighted on the basis of the respective Component Notional Amounts of such Components immediately prior to such Distribution Date). The Class X-B Pass-Through Rate is fixed and, for each Distribution Date, will equal the Class X Strip Rate for the Class B Component for such Distribution Date. The Class X-D Pass-Through Rate is fixed and, for each Distribution Date, will equal the Class X Strip Rate for the Class D Component for such Distribution Date. The Class X-E Pass-Through Rate is variable and, for each Distribution Date, will equal the Class X Strip Rate for the Class E Component for such Distribution Date. The Class X-F Pass-Through Rate is variable and, for each Distribution Date, will equal the Class X Strip Rate for the Class F Component for such Distribution Date. The Class X-NR Pass-Through Rate is variable and, for each Distribution Date, will equal the Class X Strip Rate for the Class NR Component for such Distribution Date. |
(3) | The Class X-A, Class X-B, Class X-D, Class X-E, Class X-F and Class X-NR Certificates will not have Certificate Principal Balances; rather, each such Class of Certificates will accrue interest as provided herein on the related Notional Amount. |
(4) | The Class R Certificates do not have a Certificate Principal Balance or Notional Amount, do not bear interest and will not be entitled to distributions of Yield Maintenance Charges. Any Available Funds remaining in the Lower-Tier Distribution Account and the Upper-Tier Distribution Account, after all required distributions under |
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this Agreement have been made to the Holders of the Regular Certificates, will be distributed to the Holders of the Class R Certificates. |
LOWER-TIER REMIC
The following table sets forth the Class designation, the original Lower-Tier Principal Balance, the corresponding Class of Regular Certificates (the “Corresponding Certificates”) and the corresponding component of the Class X Certificates (the “Corresponding Component”) for each Lower Tier Regular Interest.
Class Designation(1)(2) | Original | Corresponding Certificate | Corresponding
| |||||
Class LA-1 | $ | 60,509,000 | Class A-1 | Class A-1 | ||||
Class LA-2 | $ | 148,324,000 | Class A-2 | Class A-2 | ||||
Class LA-3 | $ | 200,000,000 | Class A-3 | Class A-3 | ||||
Class LA-4 | $ | 502,390,000 | Class A-4 | Class A-4 | ||||
Class LA-SB | $ | 82,627,000 | Class A-SB | Class A-SB | ||||
Class LA-S | $ | 86,962,000 | Class A-S | Class A-S | ||||
Class LB | $ | 86,961,000 | Class B | Class B | ||||
Class LC | $ | 63,891,000 | Class C | N/A | ||||
Class LD | $ | 72,764,000 | Class D | Class D | ||||
Class LE | $ | 35,495,000 | Class E | Class E | ||||
Class LF | $ | 14,197,000 | Class F | Class F | ||||
Class LNR | $ | 65,666,014 | Class NR | Class NR |
(1) | The interest rate of each Lower-Tier Regular Interest is the WAC Rate. |
(2) | Each Lower-Tier Regular Interest is also the “Corresponding Lower-Tier Regular Interest” with respect to the Corresponding Certificate and the Corresponding Component, each Corresponding Certificate is the Corresponding Certificate with respect to the Corresponding Component and each Corresponding Component is the Corresponding Component with respect to the Corresponding Certificates. |
The Certificate Principal Balance of any Class of Principal Balance Certificates outstanding at any time represents the maximum amount which holders thereof are then entitled to receive as distributions allocable to principal from the cash flow on the Mortgage Loans and the other assets in the Trust Fund; provided, however, that in the event that amounts previously allocated as Realized Losses to a Class of Principal Balance Certificates in reduction of the Certificate Principal Balance thereof are recovered subsequent to the reduction of the Certificate Principal Balance of such Class to zero, such Class may receive distributions in respect of such recoveries in accordance with the priorities set forth in Section 4.01 of this Agreement. As of the Cut-Off Date, the Mortgage Loans have an aggregate Stated Principal Balance equal to approximately $1,419,786,014.
GRANTOR TRUST
The portions of the Trust Fund consisting of the Class Z Specific Grantor Trust Assets shall be treated as a grantor trust under subpart E, part I of subchapter J of the Code (the “Grantor Trust”) for federal income tax purposes. The Class Z Certificates shall represent undivided beneficial interests in the Class Z Specific Grantor Trust Assets. As provided herein,
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the Certificate Administrator shall not take any actions that would cause the Grantor Trust to either (i) lose its status as a “grantor trust” or (ii) be treated as part of either Trust REMIC.
In consideration of the mutual agreements herein contained, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Article.
“10-K Filing Deadline”: As defined in Section 10.04 of this Agreement.
“15Ga-1 Notice”: As defined in Section 2.03(a) of this Agreement.
“15Ga-1 Notice Provider”: As defined in Section 2.03(a) of this Agreement.
“AB Whole Loan”: The Charles River Plaza North Whole Loan (and shall include any successor REO Mortgage Loan or successor REO Companion Loans).
“AB Whole Loan Control Appraisal Event”: The Charles River Plaza North Control Appraisal Event.
“AB Whole Loan Major Decision”: Any action or decision with respect to the AB Whole Loan or related REO Property regarding which the related Whole Loan Directing Holder has consent rights pursuant to Section 5 of the Charles River Plaza North Co-Lender Agreement.
“Acceptable Insurance Default”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, any Default arising when the related Mortgage Loan Documents require that the related Mortgagor must maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with the Servicing Standard (and, with the consent of (i) other than with respect to the Charles River Plaza North Whole Loan for so long as the Charles River Plaza North Subordinate Companion Loan Holder is the Charles River Plaza North Whole Loan Directing Holder or the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Companion Loan Securitization Date), the Controlling Class Representative, unless a Control Termination Event has occurred and is continuing, (ii) in the case of the Charles River Plaza North Whole Loan for so long as the Charles River Plaza North Subordinate Companion Loan Holder is the Charles River Plaza North Whole Loan Directing Holder, the Charles River Plaza North Subordinate Companion Loan Holder (for so long as the Charles River Plaza North Subordinate Companion Loan Holder is the Charles River Plaza North Whole Loan Directing Holder) or (iii) in the case
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of the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Companion Loan Securitization Date), the WPC Department Store Portfolio Directing Holder, as applicable), that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the Mortgaged Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate; provided, however, that the Controlling Class Representative or the holder of the Charles River Plaza North Subordinate Companion Loan or the WPC Department Store Portfolio Directing Holder, as applicable, shall have no more than 30 days to respond to the Special Servicer’s request for such consent; provided, further, that upon the Special Servicer’s determination, consistent with the Servicing Standard, that exigent circumstances do not allow the Special Servicer to consult with the Controlling Class Representative or the holder of the Charles River Plaza North Subordinate Companion Loan or the WPC Department Store Portfolio Directing Holder, as applicable, the Special Servicer shall not be required to do so. In making this determination, the Special Servicer, to the extent consistent with the Servicing Standard, may rely on the opinion of an insurance consultant.
“Accrued Component Interest”: With respect to each Component for any Distribution Date, one month’s interest at the Class X Strip Rate applicable to such Component for such Distribution Date, accrued on the Component Notional Amount of such Component outstanding immediately prior to such Distribution Date. Accrued Component Interest shall be calculated on a 30/360 Basis and, with respect to any Component and any Distribution Date, shall be deemed to accrue during the calendar month preceding the month in which such Distribution Date occurs.
“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached to this Agreement as Exhibit W.
“Additional Form 10-D Disclosure”: As defined in Section 10.03 of this Agreement.
“Additional Form 10-K Disclosure”: As defined in Section 10.04 of this Agreement.
“Additional Information”: As defined in Section 4.02(a) of this Agreement.
“Additional Servicer”: Each Affiliate of the Master Servicer that Services any of the Mortgage Loans, an Other Master Servicer, an Other Special Servicer and each Person who is not an Affiliate of the Master Servicer, other than the Special Servicer or the Certificate Administrator, who Services 10% or more of the Mortgage Loans by unpaid principal balance calculated in accordance with the provisions of Regulation AB.
“Additional Trust Fund Expenses”: (i) Special Servicing Fees, Workout Fees and Liquidation Fees, (ii) interest in respect of unreimbursed Advances, (iii) the cost of various default-related or unanticipated Opinions of Counsel required or permitted to be obtained in connection with the servicing of the Mortgage Loans and the administration of the Trust Fund,
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(iv) unanticipated, non-Mortgage Loan specific expenses of the Trust Fund, including indemnities and expense reimbursements to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and the Depositor and federal, state and local taxes, and tax-related expenses, specifically payable out of the Trust Fund and (v) any other default-related or unanticipated expense of the Trust Fund that is not covered by a Property Advance and for which there is no corresponding collection from a Mortgagor.
“Administrative Cost Rate”: With respect to any Mortgage Loan, as of any date of determination, a rate equal to the sum of the CREFC® Intellectual Property Royalty License Fee Rate, the Servicing Fee Rate, the Operating Advisor Fee Rate and the Trustee/Certificate Administrator Fee Rate. In addition, the Administrative Cost Rate for a Serviced Companion Loan will be equal to the Servicing Fee Rate for such Serviced Companion Loan.
“Advance”: Any P&I Advance or Property Advance.
“Advance Interest Amount”: Interest at the Advance Rate on the aggregate amount of P&I Advances and Property Advances for which the Master Servicer, the Special Servicer or the Trustee, as applicable, have not been reimbursed for the number of days from the date on which such Advance was made through, but not including, the date of reimbursement of the related Advance, less any amount of interest previously paid on such Advance; provided, however, that with respect to any P&I Advance made prior to the expiration of the related grace period (or, if there is no grace period, on or prior to the related Due Date), interest on such P&I Advance shall accrue only from and after the expiration of such grace period (or, if there is no grace period, from and after the related Due Date) and only if the subject Mortgage Loan is then still delinquent; and provided, further, that interest at the Advance Rate shall not accrue on any Advance made to cover a delinquent Applicable Monthly Payment that has been received after the Determination Date and prior to 2:00 p.m. (Eastern Time) on the related Master Servicer Remittance Date. For the avoidance of doubt no grace period in respect of a particular Due Date with respect to any Mortgage Loan shall extend beyond the related Master Servicer Remittance Date.
“Advance Rate”: A per annum rate equal to the Prime Rate, compounded annually.
“Affected Reporting Party”: As defined in Section 10.11.
“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and/or the Certificate Administrator may obtain and rely on an Officer’s Certificate of the Master Servicer, the Special Servicer or the Depositor to determine whether any Person is an Affiliate of such party.
“Affiliate Ethical Wall”: Reasonable policies and procedures to be maintained by an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Certificate
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Administrator, the Operating Advisor or the Trustee, as applicable, taking into account the nature of its business, to ensure (1) that such Affiliate will not use Confidential Information received from the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as applicable, in a manner that violates any applicable law including, but not limited to, any securities laws, and (2) that such Affiliate will not provide to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as applicable, information regarding its decisions relating to Investments in the Certificates from such Affiliate. Under such policies and procedures maintained by such Affiliate, (i) policies and procedures restricting the flow of information exist, and shall be maintained by such Affiliate, between such Affiliate, on the one hand and the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as applicable, on the other; (ii) such policies and procedures restricting the flow of information operate in both directions so as to include (a) policies and procedures against the disclosure of Confidential Information from the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as applicable, to such Affiliate, except as such disclosure is expressly allowed under this Agreement in such affiliate’s capacity as a Controlling Class Certificateholder or a Controlling Class Representative or otherwise and (b) policies and procedures restricting the disclosure by such Affiliate of information regarding its decisions relating to Investments in Certificates to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as applicable; (iii) the senior management personnel of such Affiliate who have obtained Confidential Information in the course of their exercise of general managerial responsibilities may not use that information to influence Investment Decisions with respect to the Certificates, nor may they pass that information to others for use in such activities, to the extent the use of such Confidential Information violates the securities laws; and (iv) such senior management personnel who have obtained information regarding Investments in the course of their exercise of general managerial responsibilities may not use that information to influence servicing recommendations.
“Agreement”: This Pooling and Servicing Agreement and all amendments hereof and supplements hereto.
“A.M. Best”: A.M. Best Company, Inc. or its successors in interest. If neither A.M. Best nor any successor remains in existence, “A.M. Best” shall be deemed to refer to such nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of A.M. Best herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“AMO”: Anderson, McCoy & Orta, P.C.
“Ancillary Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, any and all demand fees, beneficiary statement charges, fees for insufficient or returned checks and other usual and customary charges and fees (other than Modification Fees, Consent Fees, Penalty Charges, Assumption Fees, assumption application fees and defeasance fees) actually received from the related Mortgagor.
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“Anticipated Repayment Date”: With respect to any ARD Loan, the date upon which such ARD Loan commences accruing interest at its Revised Rate.
“Anticipated Termination Date”: Any Distribution Date on which it is anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c) of this Agreement.
“Applicable Laws”: As defined in Section 8.02(e) of this Agreement.
“Applicable Patriot Act Laws”: As defined in Section 8.12 of this Agreement.
“Applicable Monthly Payment”: For any Mortgage Loan with respect to any calendar month (including any such Mortgage Loan as to which the related Mortgaged Property has become an REO Property (including with respect to the Non-Serviced Mortgage Loans)), the Monthly Payment; provided, however, that for purposes of calculating the amount of any P&I Advance required to be made by the Master Servicer or the Trustee, notwithstanding the amount of such Applicable Monthly Payment, interest shall be calculated at the Mortgage Loan Rate less the Servicing Fee Rate; and provided, further, that for purposes of determining the amount of any P&I Advance, the Monthly Payment shall be as reduced pursuant to any modification of a Mortgage Loan pursuant to Section 3.24 of this Agreement or pursuant to the Other Pooling and Servicing Agreement, or pursuant to any bankruptcy, insolvency, or other similar proceeding involving the related Mortgagor.
“Applicant”: As defined in Section 5.07(a) of this Agreement.
“Appraisal”: An appraisal prepared by an Appraiser, which shall be prepared in accordance with MAI standards and in accordance with FIRREA standards. The appraisal obtained by the Special Servicer will also be required to contain a statement, or be accompanied by a letter from the appraiser, to the effect that the appraisal was performed in accordance with the requirements of the FIRREA as in effect on the date such appraisal was obtained.
“Appraisal Reduction Amount”: For any Distribution Date and for any Mortgage Loan (or Serviced Whole Loan, if applicable, but not with respect to any Non-Serviced Mortgage Loan), as to which an Appraisal Reduction Event has occurred and an Appraisal Reduction Amount is required to be calculated, an amount (subject to the operation of the final paragraph of Section 3.10(a)) equal to the excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan (or Serviced Whole Loan) as of the last day of the related Collection Period over (b) the excess of (i) the sum of (A) 90% of the appraised value of the related Mortgaged Property or Properties (as determined by one or more Appraisals obtained by the Special Servicer (the cost of which shall be advanced by the Master Servicer as a Property Advance unless such Property Advance would be a Nonrecoverable Advance)), minus such downward adjustments as the Special Servicer may make in accordance with the Servicing Standard (without implying any obligation to do so) based upon the Special Servicer’s review of the Appraisal and such other information as the Special Servicer may deem appropriate and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan (or Serviced Whole Loan) as of the date of the calculation over (ii) the sum, as of the Due Date occurring in the month of the date of determination of, (A) to the extent not previously advanced by the Master Servicer or the Trustee, all unpaid interest on such Mortgage Loan (or Serviced Whole Loan, if applicable) at a
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per annum rate equal to its Mortgage Loan Rate (and with respect to a Serviced Whole Loan, interest on the related Serviced Companion Loan(s) at the related Mortgage Loan Rate), (B) all unreimbursed Advances (which shall include, without limitation, (1) any Advances as to which the advancing party was reimbursed from a source other than the related Mortgagor and (2) any Unliquidated Advances), with interest thereon at the Advance Rate in respect of such Mortgage Loan (or Serviced Whole Loan) and (C) all currently due and unpaid real estate taxes and assessments, insurance premiums and ground rents, unpaid Special Servicing Fees and all other amounts, due and unpaid with respect to such Mortgage Loan (or Serviced Whole Loan) (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the Master Servicer or the Trustee, as applicable, and/or for which funds have not been escrowed). Promptly upon the occurrence of an Appraisal Reduction Event (or a longer period so long as the Special Servicer is (as certified thereby to the Trustee in writing) diligently and in good faith proceeding to obtain such), if an Appraisal has not been obtained within the immediately preceding nine (9) months (or if the Special Servicer has determined in accordance with the Servicing Standard such Appraisal to be materially inaccurate), the Special Servicer shall obtain an Appraisal, the costs of which shall be paid by the Master Servicer as a Property Advance (or as an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account if such Property Advance would be a Nonrecoverable Advance). The Master Servicer shall provide (via electronic delivery) the Special Servicer with information in its possession that the Special Servicer reasonably requires to calculate or recalculate any Appraisal Reduction Amount pursuant to the definition thereof using reasonable efforts to deliver such information within four (4) Business Days of the Special Servicer’s reasonable written request. None of the Master Servicer, the Trustee or the Certificate Administrator shall calculate or verify Appraisal Reduction Amounts. On the first Determination Date occurring on or after the receipt of such Appraisal, the Special Servicer shall calculate or adjust, as applicable, the Appraisal Reduction Amount to take into account such Appraisal and such information, if any, reasonably requested by the Special Servicer from the Master Servicer reasonably required to calculate or recalculate the Appraisal Reduction Amount. Notwithstanding the foregoing, if an Appraisal is required to be obtained in accordance with Section 3.10(a) of this Agreement but is not obtained within 120 days following the events described in the applicable clause of the definition “Appraisal Reduction Event” (without regard to the time periods stated therein), then, until such Appraisal is obtained and solely for purposes of determining the amounts of P&I Advances, the Appraisal Reduction Amount will equal 25% of the Stated Principal Balance of the related Mortgage Loan; provided that, upon receipt of an Appraisal by the Special Servicer, however, the Appraisal Reduction Amount for such Mortgage Loan (or the related Serviced Whole Loan, if applicable) will be recalculated in accordance with this definition without regard to this sentence. With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan as to which an Appraisal Reduction Event has occurred (unless the Mortgage Loan (or Serviced Whole Loan) has become a Corrected Mortgage Loan (if a Servicing Transfer Event had occurred with respect to the related Mortgage Loan (or Serviced Whole Loan)) and has remained current for three consecutive Monthly Payments, and with respect to which no other Appraisal Reduction Event has occurred with respect thereto during the preceding three months), the Special Servicer shall, within 30 days of each anniversary of such Appraisal Reduction Event, order an Appraisal (which may be an update of the prior Appraisal) (the cost of which will be covered by, and reimbursable as, a Property Advance by the Master Servicer or as an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account if such
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Property Advance would be a Nonrecoverable Advance), provided, however, that no new or updated Appraisal will be required if the Mortgage Loan, Serviced Whole Loan or REO Property is under contract to be sold within 90 days of such Appraisal Reduction Event or anniversary thereof and the Special Servicer reasonably believes such sale is likely to close. Based upon such Appraisal or letter updates thereto, the Special Servicer shall determine and report to the Master Servicer and the Certificate Administrator the Appraisal Reduction Amount, if any, with respect to such Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan and, in the case of a Whole Loan, determined in accordance with the Co-Lender Agreement, and each of the Master Servicer and the Certificate Administrator shall be entitled to rely conclusively on such determination by the Special Servicer. Upon completion, the Special Servicer shall deliver a copy of any such Appraisal to the Master Servicer and the Certificate Administrator, which shall be in electronic format. Each Appraisal Reduction Amount shall also be adjusted with respect to the next Distribution Date to take into account any subsequent Appraisal and annual letter updates, as of the date of each such subsequent Appraisal or letter update.
Upon payment in full or liquidation of any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan for which an Appraisal Reduction Amount has been determined, such Appraisal Reduction Amount will be eliminated. In addition, with respect to any Mortgage Loan (or Serviced Whole Loan, but not including the Non-Serviced Mortgage Loans), as to which an Appraisal Reduction Event has occurred, such Mortgage Loan (or Serviced Whole Loan) shall no longer be subject to the Appraisal Reduction Amount if (a) such Mortgage Loan (or Serviced Whole Loan) has become a Corrected Mortgage Loan (if a Servicing Transfer Event had occurred with respect to the related Mortgage Loan (or Serviced Whole Loan)) and such Mortgage Loan (or Serviced Whole Loan) becomes and remains current for three consecutive Monthly Payments and (b) no other Appraisal Reduction Event has occurred and is continuing.
Notwithstanding the foregoing, with respect to each Non-Serviced Mortgage Loan, the Appraisal Reduction Amount with respect to the related Mortgage Loan and each related Pari Passu Companion Loan shall be the pro rata portion of the “Appraisal Reduction Amount” relating to such Mortgage Loan and each related Pari Passu Companion Loan; provided that Appraisal Reduction Amounts with respect to any Whole Loan with a Subordinate Companion Loan will be allocated first to the related Subordinate Companion Loan until the outstanding principal balance of the Subordinate Companion Loan has been notionally reduced to zero, and then to the related Mortgage Loan and Pari Passu Companion Loan(s) on a pro rata and pari passu basis in accordance with the respective outstanding principal balances of such related Mortgage Loan and the related Pari Passu Companion Loan(s), and calculated pursuant to the applicable Other Pooling and Servicing Agreement by the applicable Other Master Servicer or Other Special Servicer (or the Non-Serviced Mortgage Loan’s pro rata share thereof). The parties hereto shall be entitled to rely on such calculations as reported to them by the applicable Other Special Servicer or Other Master Servicer. By their acceptance of their Certificates, the Certificateholders will be deemed to have acknowledged that each applicable Other Pooling and Servicing Agreement and the related Co-Lender Agreement taken together, provide that any such “Appraisal Reduction Amount” will be calculated by the applicable Other Special Servicer or Other Master Servicer under the applicable Other Pooling and Servicing Agreement.
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Appraisal Reduction Amounts with respect to a Serviced Whole Loan shall be allocated to the related Mortgage Loan and each related Pari Passu Companion Loan on a pro rata and pari passu basis in accordance with the respective outstanding principal balances of such related Mortgage Loan and each related Pari Passu Companion Loan; provided that Appraisal Reduction Amounts with respect to the AB Whole Loan shall be allocated first to the related Subordinate Companion Loan until the outstanding principal balance of the Subordinate Companion Loan has been notionally reduced to zero, and then to the related Mortgage Loan and Pari Passu Companion Loan(s) on a pro rata and pari passu basis in accordance with the respective outstanding principal balances of such related Mortgage Loan and the related Pari Passu Companion Loan(s).
“Appraisal Reduction Event”: With respect to any Mortgage Loan (or Serviced Whole Loan, if applicable, but not with respect to any Non-Serviced Mortgage Loan), the earliest of (i) the date on which such Mortgage Loan (or Serviced Whole Loan) becomes a Modified Asset, (ii) the date on which such Mortgage Loan (or Serviced Whole Loan) is 60 days or more delinquent in respect of any Monthly Payment, except for a Balloon Payment, (iii) solely in the case of a delinquent Balloon Payment, (A) the date occurring 60 days beyond the date on which that Balloon Payment was due (except as described in clause B below) or (B) if the related Mortgagor has delivered to the Master Servicer or Special Servicer (and in either such case the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a copy thereof to the other servicer), a refinancing commitment acceptable to the Special Servicer prior to the date 60 days after maturity, the date occurring 120 days after the date on which the Balloon Payment was due (or such shorter period beyond the date on which that Balloon Payment was due during which the refinancing is scheduled to occur), (iv) the date on which the related Mortgaged Property has become an REO Property, (v) receipt of notice that the related Mortgagor has filed a bankruptcy petition or the date on which a receiver or similar official is appointed (and continues in that capacity) in respect of the related Mortgaged Property, (vi) the 60th day after the date related Mortgagor is subject to an involuntary bankruptcy, insolvency or similar proceeding, which is not dismissed within those 60 days, or (vii) the date on which such Mortgage Loan (or Serviced Whole Loan) remains outstanding five (5) years following any extension of its maturity date pursuant to Section 3.24 of this Agreement. If an Appraisal Reduction Event occurs with respect to any Mortgage Loan that is part of a Serviced Whole Loan, then an Appraisal Reduction Event shall be deemed to also have occurred with respect to each related Serviced Companion Loan. If an Appraisal Reduction Event occurs with respect to any Serviced Companion Loan, then an Appraisal Reduction Event shall be deemed to also have occurred with respect to the related Mortgage Loan that is part of a Serviced Whole Loan. No Appraisal Reduction Event may occur at any time when the aggregate Certificate Principal Balance of all Classes of Principal Balance Certificates (other than the Class A Certificates) has been reduced to zero. The Special Servicer shall notify the Master Servicer and the Master Servicer shall notify the Special Servicer, as applicable, promptly upon the occurrence of any of the foregoing events.
“Appraised Value”: As of any date of determination, the appraised value of a Mortgaged Property based upon an appraisal or update thereof prepared by an Appraiser that is contained in the related Servicing File obtained within the time parameters required by this Agreement. With respect to each Mortgaged Property securing a Non-Serviced Mortgage Loan,
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the appraised value allocable thereto, as determined pursuant to the applicable Other Pooling and Servicing Agreement.
“Appraised-Out Class”: As defined in Section 3.10(a) of this Agreement.
“Appraiser”: An Independent nationally recognized professional commercial real estate appraiser who (i) is a member in good standing of the Appraisal Institute, (ii) if the state in which the related Mortgaged Property is located certifies or licenses appraisers, is certified or licensed in such state, and (iii) has a minimum of five years’ experience in the related property type and market.
“ARD Loan”: Any Mortgage Loan that is identified as having an Anticipated Repayment Date and Revised Rate on the Mortgage Loan Schedule.
“Arizona Grand Resort & Hotel Co-Lender Agreement”: With respect to the Arizona Grand Resort & Hotel Whole Loan, the co-lender agreement, dated as of August 18, 2015, by and between the holder of the Arizona Grand Resort & Hotel Mortgage Loan and the Arizona Grand Resort & Hotel Companion Loan Holder, relating to the relative rights of the holder of the Arizona Grand Resort & Hotel Mortgage Loan and the Arizona Grand Resort & Hotel Companion Loan Holder, as the same may be amended from time to time in accordance with the terms thereof.
“Arizona Grand Resort & Hotel Companion Loan”: With respect to the Arizona Grand Resort & Hotel Whole Loan, the related promissory note made by the related Mortgagor and secured by the Arizona Grand Resort & Hotel Mortgage and designated as Note A-2, which note is not included in the Trust.
“Arizona Grand Resort & Hotel Companion Loan Holder”: A holder of a Arizona Grand Resort & Hotel Companion Loan.
“Arizona Grand Resort & Hotel Mortgage Loan”: With respect to the Arizona Grand Resort & Hotel Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Arizona Grand Resort & Hotel, which is evidenced by promissory note designated as Note A-1.
“Arizona Grand Resort & Hotel Whole Loan”: The Arizona Grand Resort & Hotel Mortgage Loan, together with the Arizona Grand Resort & Hotel Companion Loan, each of which is secured by the Arizona Grand Resort & Hotel Mortgage. References herein to the Arizona Grand Resort & Hotel Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Arizona Grand Resort & Hotel Mortgage.
“Asset Status Report”: As defined in Section 3.21(b) of this Agreement.
“Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar agreement executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of such Mortgaged Property, in the form
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which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.
“Assumption Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, any and all assumption fees of such Mortgage Loan (or Serviced Whole Loan, if applicable) for transactions effected under Section 3.09(a), Section 3.09(b) and Section 3.09(c) of this Agreement (excluding assumption application fees), actually paid by the related Mortgagor and other applicable fees (not including assumption application fees) actually paid by the related Mortgagor in accordance with the related Mortgage Loan Documents, with respect to any assumption or substitution agreement entered into by the Master Servicer or the Special Servicer on behalf of the Trust (or, in the case of a Serviced Whole Loan, on behalf of the Trust and the related Companion Loan Holder(s)) pursuant to Section 3.09(a) of this Agreement or paid by the related Mortgagor with respect to any transfer of an interest in such Mortgagor pursuant to Section 3.09(a) of this Agreement.
“Authenticating Agent”: Any authenticating agent appointed by the Certificate Administrator pursuant to Section 5.09 of this Agreement.
“Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in the Collection Account and the Lower-Tier Distribution Account, as of the close of business on the Business Day prior to the related Master Servicer Remittance Date, including any amounts that may be transferred to the Collection Account on the Business Day prior to the related Master Servicer Remittance Date from any REO Account pursuant to Section 3.16(a) of this Agreement or Serviced Whole Loan Custodial Account, exclusive of (without duplication):
(i) all scheduled Monthly Payments and Balloon Payments paid by the Mortgagors that are due on a Due Date (without regard to grace periods) that occurs after the end of the related Collection Period (without regard to grace periods);
(ii) all Unscheduled Payments of principal (including Principal Prepayments (together with any related payments of interest allocable to the period following the Due Date for the related Mortgage Loan during the related Collection Period)), Net Liquidation Proceeds, Net Insurance Proceeds or Net Condemnation Proceeds and other unscheduled recoveries received subsequent to the related Determination Date (other than any remittances on the Non-Serviced Mortgage Loans or the Trust’s interest in any related REO Property contemplated by clause (b) of this definition);
(iii) all amounts payable or reimbursable to any Person from the Collection Account pursuant to clauses (ii) through (viii), inclusive, of Section 3.06(a) of this Agreement;
(iv) all Yield Maintenance Charges;
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(v) all Penalty Charges retained in the Collection Account pursuant to Section 3.14(a) of this Agreement;
(vi) all amounts deposited in the Collection Account or the Lower-Tier Distribution Account, as the case may be, in error;
(vii) with respect to the Mortgage Loans for which Withheld Amounts are required to be deposited in the Interest Reserve Account, and any Distribution Date in (1) each February or (2) any January in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), an amount equal to one day of interest on the Stated Principal Balance of such Mortgage Loan as of the close of business on the Distribution Date in the month preceding the month in which the subject Distribution Date occurs at the related Mortgage Loan Rate, less the Administrative Cost Rate, to the extent such amounts are to be deposited in the Interest Reserve Account and held for future distribution pursuant to Section 3.23 of this Agreement; and
(viii) Excess Interest;
(b) if and to the extent not already included in clause (a) of this definition, the aggregate amount transferred from any REO Account or Serviced Whole Loan Custodial Account to the Collection Account for such Distribution Date pursuant to Section 3.16 or Section 3.06A, as applicable, of this Agreement, and all remittances received on the Non-Serviced Mortgage Loans or the Trust’s interest in any related REO Property in the month of such Distribution Date, in each case to the extent that such transfer is made or such remittances are received, as the case may be, by the close of business on the Business Day immediately preceding the related Master Servicer Remittance Date;
(c) the aggregate amount of any Compensating Interest Payments made by the Master Servicer and P&I Advances made by the Master Servicer or the Trustee, as applicable, for such Distribution Date (net of the related Trustee/Certificate Administrator Fee with respect to the Mortgage Loans (including REO Mortgage Loans) for which such Compensating Interest Payments or P&I Advances are made, to the extent not already deducted from Available Funds pursuant to clause (a)(iii) of this definition); and
(d) for the Distribution Date occurring in each March (or February if the final Distribution Date occurs in such month), the Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant to Section 3.23 of this Agreement.
Notwithstanding the investment of funds held in the Collection Account or the Lower-Tier Distribution Account pursuant to Section 3.07 of this Agreement, for purposes of calculating the Available Funds, the amounts so invested shall be deemed to remain on deposit in such account.
“Balloon Mortgage Loan”: Any Mortgage Loan or Companion Loan that by its original terms or by virtue of any modification provides for an amortization schedule extending beyond its Maturity Date, unless such extension results solely from the accrual of interest on the
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basis of the actual number of days elapsed in a year of 360 days, notwithstanding calculation of Monthly Payments based on a 360-day year consisting of twelve 30-day months.
“Balloon Payment”: With respect to any Balloon Mortgage Loan as of any date of determination, the amount outstanding on the Maturity Date of such Mortgage Loan in excess of the related Monthly Payment.
“Bancorp”: The Bancorp Bank, a Delaware state-chartered bank, and its successors in interest.
“Bancorp Loan Purchase Agreement”: The Mortgage Loan Purchase Agreement, dated as of August 1, 2015, by and between Bancorp and the Depositor.
“Bank of New York Mellon”: The Bank of New York Mellon, a New York corporation, and its successors in interest.
“Bank of New York Mellon Loan Purchase Agreement”: The mortgage loan purchase agreement, dated as of August 1, 2015, by and between Bank of New York Mellon and the Depositor.
“Base Interest Fraction”: With respect to any Principal Prepayment on any Mortgage Loan and with respect to any Class of Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C and Class D Certificates, a fraction (a) whose numerator is the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the discount rate used in accordance with the related Mortgage Loan Documents in calculating the Yield Maintenance Charge with respect to such Principal Prepayment (or, if the Yield Maintenance Charge is a fixed percentage of the principal balance of the related Mortgage Loan, the yield rate applicable to any related yield maintenance charge or that is otherwise described in the related Mortgage Loan Documents) and (b) whose denominator is the amount, if any, by which (i) the Mortgage Loan Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance with the related Mortgage Loan Documents in calculating the Yield Maintenance Charge with respect to such Principal Prepayment (or, if the Yield Maintenance Charge is a fixed percentage of the principal balance of the related Mortgage Loan, the yield rate applicable to any related yield maintenance charge or that is otherwise described in the related Mortgage Loan Documents); provided, however, that under no circumstances shall the Base Interest Fraction be greater than one. However, if such discount rate referred to in the preceding sentence is greater than or equal to the lesser of (x) the Mortgage Loan Rate on the related Mortgage Loan and (y) the Pass-Through Rate described in the preceding sentence, then the Base Interest Fraction shall equal zero; provided that, if such discount rate is greater than or equal to the Mortgage Loan Rate on such Mortgage Loan, but less than the Pass-Through Rate described in the preceding sentence, then the Base Interest Fraction shall equal one.
“Beneficial Owner”: With respect to a Global Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or indirectly through a Depository Participant, in accordance with the rules of such Depository). Each of the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer
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shall have the right to require, as a condition to acknowledging the status of any Person as a Beneficial Owner under this Agreement, that such Person provide evidence (which may be in the form of an Investor Certification) at its expense of its status as a Beneficial Owner hereunder.
“Borrower-Related Party”: As defined in Section 3.32 of this Agreement.
“Borrower Delayed Reimbursements”: Any Additional Trust Fund Expenses and reimbursements of Advances that the related Mortgagor is required, pursuant to a written modification agreement, to pay in the future to the Trust in its capacity as owner of the related Mortgage Loan.
“Breach”: As defined in Section 2.03(a) of this Agreement.
“BSPCC”: Benefit Street Partners CRE Finance LLC, a Delaware limited liability company, and its successors in interest.
“BSPCC Loan Purchase Agreement”: The mortgage loan purchase agreement, dated as of August 1, 2015, by and between BSPCC and the Depositor.
“Business Day”: Any day other than a Saturday, a Sunday or any day on which the New York Stock Exchange, the Federal Reserve Bank of New York or banking institutions in the City of New York, New York or the States of North Carolina, Kansas or Pennsylvania, the cities in which the principal offices of the Operating Advisor, the Master Servicer or the Special Servicer are located, or the city in which the Corporate Trust Office of the Certificate Administrator or the Trustee is located are authorized or obligated by law, executive order or governmental decree to be closed.
“Calculation Rate”: A discount rate appropriate for the type of cash flows being discounted, namely (i) for principal and interest payments on a Mortgage Loan or proceeds from the sale of a Defaulted Mortgage Loan, the highest of (1) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Mortgagors on similar debt of the Mortgagors as of such date of determination, (2) the Mortgage Loan Rate and (3) the yield on 10-year U.S. treasuries and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal).
“Cape May Hotels Co-Lender Agreement”: With respect to the Cape May Hotels Whole Loan, the co-lender agreement, dated as of August 18, 2015, by and between the holder of the Cape May Hotels Mortgage Loan and the Cape May Hotels Companion Loan Holder, relating to the relative rights of the holder of the Cape May Hotels Mortgage Loan and the Cape May Hotels Companion Loan Holder, as the same may be amended from time to time in accordance with the terms thereof.
“Cape May Hotels Companion Loan”: With respect to the Cape May Hotels Whole Loan, the related promissory note made by the related Mortgagor and secured by the Cape May Hotels Mortgage and designated as Note A-2, which note is not included in the Trust.
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“Cape May Hotels Companion Loan Holder”: A holder of a Cape May Hotels Companion Loan.
“Cape May Hotels Mortgage Loan”: With respect to the Cape May Hotels Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Cape May Hotels, which is evidenced by promissory note designated as Note A-1.
“Cape May Hotels Whole Loan”: The Cape May Hotels Mortgage Loan, together with the Cape May Hotels Companion Loan, each of which is secured by the Cape May Hotels Mortgage. References herein to the Cape May Hotels Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Cape May Hotels Mortgage.
“Certificate”: Any Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class Z and Class R Certificate issued, authenticated and delivered hereunder.
“Certificate Administrator”: Wells Fargo Bank, National Association, a national banking association, and its successor in interest, or any successor Certificate Administrator appointed as herein provided.
“Certificate Administrator Accounts”: As defined in Section 3.07(a) of this Agreement.
“Certificate Administrator Personnel”: The divisions and individuals of the Certificate Administrator who are involved in the performance of the duties of the Certificate Administrator under this Agreement.
“Certificate Administrator’s Website”: The internet website of the Certificate Administrator, initially located at www.ctslink.com.
“Certificate Factor”: With respect to any Class of Regular Certificates, as of any date of determination, a fraction, expressed as a decimal carried to eight places, the numerator of which is the then related Certificate Principal Balance or the Notional Amount, as the case may be, and the denominator of which is the related initial Certificate Principal Balance or the initial Notional Amount, as the case may be.
“Certificate Principal Balance”: With respect to any Class of Principal Balance Certificates (a) on or prior to the first Distribution Date, an amount equal to the aggregate initial “Certificate Principal Balance” of such Class of Principal Balance Certificates, as specified in the Preliminary Statement hereto, and (b) as of any date of determination after the first Distribution Date, an amount equal to the Certificate Principal Balance of such Class of Principal Balance Certificates on the Distribution Date immediately prior to such date of determination, after actual distributions of principal thereon and allocation of Realized Losses thereto on such prior Distribution Date, and after any increases to such Certificate Principal Balance on such prior Distribution Date (as and to the extent provided in the penultimate sentence of the first paragraph of Section 4.01(f) of this Agreement) in connection with recoveries of Nonrecoverable Advances previously reimbursed out of collections of principal on the Mortgage Loans.
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“Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.03(a) of this Agreement.
“Certificateholder”: With respect to any Certificate, the Person whose name is registered in the Certificate Register; provided, however, that, except to the extent provided in the next proviso, solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property, a Mortgagor, or any Person actually known to a Responsible Officer of the Certificate Registrar to be an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a manager of a Mortgaged Property or a Mortgagor shall be deemed not to be outstanding and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained; provided, however, that for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificates beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor shall be deemed to be outstanding, provided that if such amendment relates to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or any of their Affiliates, such Certificate shall be deemed not to be outstanding; provided, however, if the Master Servicer, the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer is a member of the Controlling Class, it shall be permitted to act in such capacity and exercise all rights under this Agreement bestowed upon the Controlling Class; provided, further, if an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor has provided an Investor Certification in which it has certified as to the existence of an Affiliate Ethical Wall between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, as applicable, then any Certificates beneficially owned by such Affiliate shall be deemed to be outstanding.
“Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer pursuant to Section 6.08(a) of this Agreement, the holders of Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account Realized Losses and the application of any Appraisal Reduction Amounts to notionally reduce the Certificate Balances of the Certificates pursuant to Section 3.10 of this Agreement) of all Certificates (other than the Class Z and Class R Certificates), on an aggregate basis.
“Certification Parties”: As defined in Section 10.05 of this Agreement.
“Certifying Certificateholder”: A Certificateholder or Beneficial Owner of a Certificate that has provided the Trustee or the Certificate Administrator, as applicable, with an executed Investor Certification.
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“Certifying Person”: As defined in Section 10.05 of this Agreement.
“Certifying Servicer”: As defined in Section 10.07 of this Agreement.
“Charles River Plaza North Co-Lender Agreement”: With respect to the Charles River Plaza North Whole Loan, the co-lender agreement, dated as of July 7, 2015, by and between the holder of the Charles River Plaza North Mortgage Loan and the Charles River Plaza North Companion Loan Holders, relating to the relative rights of the holder of the Charles River Plaza North Mortgage Loan and each Charles River Plaza North Companion Loan Holder, as the same may be amended from time to time in accordance with the terms thereof.
“Charles River Plaza North Companion Loan”: The Charles River Plaza North Pari Passu Companion Loan and the Charles River Plaza North Subordinate Companion Loan.
“Charles River Plaza North Companion Loan Holder”: The holder of a Charles River Plaza North Companion Loan.
“Charles River Plaza North Control Appraisal Event”: With respect to the Charles River Plaza North Whole Loan, the existence of a Control Appraisal Period (as defined in the Charles River Plaza North Co-Lender Agreement).
“Charles River Plaza North Directing Holder”: With respect to the Charles River Plaza North Whole Loan, the Controlling Noteholder (as defined in the Charles River Plaza North Co-Lender Agreement).
“Charles River Plaza North Mortgage Loan”: With respect to the Charles River Plaza North Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Charles River Plaza North, which is evidenced by promissory notes designated as Note A-1 and Note A-2.
“Charles River Plaza North Pari Passu Companion Loan”: With respect to the Charles River Plaza North Whole Loan, the related promissory note made by the related Mortgagor and secured by the Charles River Plaza North Mortgage and designated as Note A-3, which note is not included in the Trust and is pari passu in right of payment with the Charles River Plaza North Mortgage Loan.
“Charles River Plaza North Subordinate Companion Loan”: With respect to the Charles River Plaza North Whole Loan, the related promissory note identified as Note B, which is subordinate in right of payment to the Charles River Plaza North Mortgage Loan, to the extent set forth in the related Mortgage Loan Documents and as provided in the related Charles River Plaza North Co-Lender Agreement.
“Charles River Plaza North Subordinate Companion Loan Holder”: The holder of the Charles River Plaza North Subordinate Companion Loan.
“Charles River Plaza North Whole Loan”: The Charles River Plaza North Mortgage Loan, together with the Charles River Plaza North Companion Loans, each of which is secured by the Charles River Plaza North Mortgage. References herein to the Charles River
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Plaza North Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Charles River Plaza North Mortgage.
“Class”: With respect to the Certificates, all of the Certificates bearing the same alphabetical or alphanumeric class designation, and with respect to the Lower-Tier Regular Interests, each interest set forth in the Preliminary Statement hereto.
“Class A Certificates”: The Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates and the Class A-SB Certificates.
“Class A-1 Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-1 hereto.
“Class A-1 Component”: The Class X-A Component having such designation.
“Class A-1 Pass-Through Rate”: A per annum fixed rate equal to 1.7167%.
“Class A-2 Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-2 hereto.
“Class A-2 Component”: The Class X-A Component having such designation.
“Class A-2 Pass-Through Rate”: A per annum fixed rate equal to 3.0326%.
“Class A-3 Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-3 hereto.
“Class A-3 Component”: The Class X-A Component having such designation.
“Class A-3 Pass-Through Rate”: A per annum fixed rate equal to 3.4465%.
“Class A-4 Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-4 hereto.
“Class A-4 Component”: The Class X-A Component having such designation.
“Class A-4 Pass-Through Rate”: A per annum fixed rate equal to 3.7182%.
“Class A-S Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form of Exhibit A-12 hereto.
“Class A-S Component”: The Class X-A Component having such designation.
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“Class A-S Pass-Through Rate”: A per annum rate equal to the lesser of 4.0532% and the WAC Rate.
“Class A-SB Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-5 hereto.
“Class A-SB Component”: The Class X-A Component having such designation.
“Class A-SB Pass-Through Rate”: A per annum fixed rate equal to 3.4481%.
“Class A-SB Scheduled Principal Balance”: For any Distribution Date, the scheduled principal balance for such Distribution Date set forth on Exhibit BB to this Agreement.
“Class B Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-13 hereto.
“Class B Component”: The Class X-B Component having such designation.
“Class B Pass-Through Rate”: A per annum rate equal to the WAC Rate minus 0.25%.
“Class C Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-14 hereto.
“Class C Pass-Through Rate”: A per annum rate equal to the WAC Rate.
“Class D Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-15 hereto.
“Class D Pass-Through Rate”: A per annum rate equal to the WAC Rate minus 1.00%.
“Class D Component”: The Class X-D Component having such designation.
“Class E Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-16 hereto.
“Class E Component”: The Class X-E Component having such designation.
“Class E Pass-Through Rate”: A per annum rate equal to the lesser of 3.220% and the WAC Rate.
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“Class F Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-17 hereto.
“Class F Component”: The Class X-F Component having such designation.
“Class F Pass-Through Rate”: A per annum rate equal to the lesser of 3.220% and the WAC Rate.
“Class F Transfer”: As defined in Section 6.09(h) of this Agreement.
“Class NR Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-18 hereto.
“Class NR Component”: The Class X-NR Component having such designation.
“Class NR Pass-Through Rate”: A per annum rate equal to the lesser of 3.220% and the WAC Rate.
“Class R Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-19 hereto. The Class R Certificates have no Pass-Through Rate, Certificate Principal Balance or Notional Amount.
“Class X Certificates”: The Class X-A, Class X-B, Class X-D, Class X-E, Class X-F and/or Class X-NR Certificates, as the context requires.
“Class X Strip Rate”: With respect to each Component for any Distribution Date, a rate per annum equal to the excess, if any, of (i) the WAC Rate for such Distribution Date, over (ii) the Pass-Through Rate for the Class of Corresponding Certificates.
“Class X-A Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-6 hereto.
“Class X-A Components”: The Class A-1 Component, the Class A-2 Component, the Class A-3 Component, the Class A-4 Component, the Class A-SB Component and the Class A-S Component.
“Class X-A Notional Amount”: With respect to the Class X-A Certificates as of any date of determination, the aggregate of the Component Notional Amounts of the Class X-A Components.
“Class X-A Pass-Through Rate”: For any Distribution Date, the weighted average of Class X Strip Rates for the Class X-A Components for such Distribution Date (weighted on the basis of the respective Component Notional Amounts of such Components outstanding immediately prior to such Distribution Date).
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“Class X-B Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-7 hereto.
“Class X-B Component”: The Class B Component.
“Class X-B Notional Amount”: With respect to the Class X-B Certificates as of any date of determination, the Component Notional Amount of the Class X-B Component.
“Class X-B Pass-Through Rate”: For any Distribution Date, a per annum rate equal to 0.25%.
“Class X-D Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-8 hereto.
“Class X-D Component”: The Class D Component.
“Class X-D Notional Amount”: With respect to the Class X-D Certificates as of any date of determination, the Component Notional Amount of the Class X-D Component.
“Class X-D Pass-Through Rate”: For any Distribution Date, a per annum rate equal to 1.00%.
“Class X-E Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-9 hereto.
“Class X-E Component”: The Class E Component.
“Class X-E Notional Amount”: With respect to the Class X-E Certificates as of any date of determination, the Component Notional Amount of the Class X-E Component.
“Class X-E Pass-Through Rate”: For any Distribution Date, the Class X Strip Rate for the Class X-E Component for such Distribution Date.
“Class X-F Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-10 hereto.
“Class X-F Component”: The Class F Component.
“Class X-F Notional Amount”: With respect to the Class X-F Certificates as of any date of determination, the Component Notional Amount of the Class X-F Component.
“Class X-F Pass-Through Rate”: For any Distribution Date, the Class X Strip Rate for the Class X-F Component for such Distribution Date.
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“Class X-NR Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-11 hereto.
“Class X-NR Component”: The Class NR Component.
“Class X-NR Notional Amount”: With respect to the Class X-NR Certificates as of any date of determination, the Component Notional Amount of the Class X-NR Component.
“Class X-NR Pass-Through Rate”: For any Distribution Date, the Class X Strip Rate for the Class X-NR Component for such Distribution Date.
“Class Z Certificate”: Any one of the Certificates executed and authenticated by the Certificate Administrator or the Authenticating Agent in substantially the form set forth in Exhibit A-20 hereto and evidencing an undivided beneficial interest in the related portion of the Grantor Trust. The Class Z Certificates have no Pass Through Rate, Certificate Principal Amount or Notional Amount.
“Class Z Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of (i) any Excess Interest and (ii) amounts held from time to time in the Excess Interest Distribution Account.
“Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be The Depository Trust Company.
“Clearstream”: Clearstream Banking, société anonyme, and its successors in interest.
“Closing Date”: August 18, 2015.
“Co-Lender Agreement”: Each of the Charles River Plaza North Co-Lender Agreement, the Starwood Capital Extended Stay Portfolio Co-Lender Agreement, the Mall of New Hampshire Co-Lender Agreement, the Westfield Wheaton Co-Lender Agreement, the Arizona Grand Resort & Spa Co-Lender Agreement, the Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement, the Westfield Trumbull Co-Lender Agreement, the WPC Department Store Portfolio Co-Lender Agreement, the Sterling & Milagro Co-Lender Agreement and Cape May Hotels Co-Lender Agreement.
“Code”: The Internal Revenue Code of 1986, as amended from time to time, any successor statute thereto, and any temporary or final regulations of the United States Department of the Treasury promulgated pursuant thereto.
“Collection Account”: The account or accounts created and maintained by the Master Servicer pursuant to Section 3.05(a) of this Agreement, which (subject to any changes in the identities of the Master Servicer or the Trustee) shall be entitled “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of CSAIL 2015-C3
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Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3” and which must be an Eligible Account.
“Collection Period”: With respect to a Distribution Date and each Mortgage Loan, the period beginning on the day after the Due Date (without regard to grace periods) in the month preceding the month in which such Distribution Date occurs (or, in the case of the Distribution Date occurring in September 2015, beginning on the day after the Cut-Off Date) and ending on and including the Due Date (without regard to grace periods) in the month in which such Distribution Date occurs.
“Column”: Column Financial, Inc. a Delaware corporation, and its successors in interest.
“Column Loan Purchase Agreement”: The mortgage loan purchase agreement, dated as of August 1, 2015, by and between Column and the Depositor.
“Commission”: The Securities and Exchange Commission.
“Companion Loan”: Any of the Charles River Plaza North Companion Loans, the Starwood Capital Extended Stay Portfolio Companion Loans, the Mall of New Hampshire Companion Loan, the Westfield Wheaton Companion Loans, the Arizona Grand Resort & Spa Companion Loan, the Soho-Tribeca Grand Hotel Portfolio Companion Loans, the Westfield Trumbull Companion Loans, the Sterling & Milagro Companion Loan and the Cape May Hotels Companion Loan.
“Companion Loan Holder”: The holder of a Companion Loan.
“Companion Loan Holder Representative”: With respect to each Companion Loan that is part of a Serviced Whole Loan, the related “Non-Controlling Note Holder Representative” (if and as defined in the related Co-Lender Agreement) or any representative appointed by the related Companion Loan Holder in accordance with the related Co-Lender Agreement.
“Companion Loan Rating Agency”: With respect to any Companion Loan, any rating agency that was engaged by a participant in the securitization of such Companion Loan to assign a rating to the related Serviced Companion Loan Securities.
“Companion Loan Rating Agency Confirmation”: With respect to any matter involving the servicing and administration of a Companion Loan that is part of a Serviced Whole Loan or any related REO Property as to which any Serviced Companion Loan Securities exist (including, but not limited to, the replacement of a Master Servicer or a Special Servicer), confirmation in writing (which may be in electronic form) by each applicable Companion Loan Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any class of such Serviced Companion Loan Securities (if then rated by the Companion Loan Rating Agency); provided that upon receipt of a written waiver or other acknowledgment from the Companion Loan Rating Agency indicating its decision not to review or declining to review the matter for which the Companion Loan Rating Agency Confirmation is sought (such written
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notice, a “Companion Loan Rating Agency Declination”), or as otherwise provided in Section 3.29 of this Agreement, the requirement for the Companion Loan Rating Agency Confirmation from the applicable Companion Loan Rating Agency with respect to such matter shall not apply.
“Companion Loan Rating Agency Declination”: As defined in the definition of “Companion Loan Rating Agency Confirmation” in this Agreement.
“Companion Loan Securities”: Any commercial mortgage-backed securities that evidence an interest in or are secured by the assets of an Other Securitization Trust, which assets include a Companion Loan (or a portion thereof or interest therein).
“Compensating Interest Payments”: Any payment required to be made by the Master Servicer pursuant to Section 3.13 of this Agreement to cover Prepayment Interest Shortfalls.
“Component”: With respect to (a) the Class X-A Certificates, the Class A-1 Component, Class A-2 Component, Class A-3 Component, Class A-4 Component, Class A-SB Component and Class A-S Component; (b) the Class X-B Certificates, the Class B Component; (c) the Class X-D Certificates, the Class D Component; (d) the Class X-E Certificates, the Class E Component, (e) the Class X-F Certificates, the Class F Component and (f) the Class X-NR Certificates, the Class NR Component.
“Component Notional Amount”: With respect to each Component and any date of determination, an amount equal to the Lower-Tier Principal Balance of the Corresponding Lower-Tier Regular Interest for that Component.
“Condemnation Proceeds”: All of the proceeds received in connection with the taking of all or a part of a Mortgaged Property or REO Property (including with respect to any Non-Serviced Mortgage Loan) by exercise of the power of eminent domain or condemnation, subject, however, to the rights of any tenants and ground lessors, as the case may be, and the terms of the related Mortgage. In the case of each Non-Serviced Mortgage Loan, “Condemnation Proceeds” means any portion of such proceeds received by the Trust in connection with the related Non-Serviced Mortgage Loan, pursuant to the allocations set forth in the related Co-Lender Agreement.
“Confidential Information”: With respect to each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, all material non-public information obtained in the course of and as a result of such Person’s performance of its duties under this Pooling and Servicing Agreement with respect to any Mortgage Loan (or Serviced Whole Loan), any Mortgagor and any Mortgaged Property, unless such information (i) was already in the possession of such Person prior to being disclosed to such Person, (ii) is or becomes available to such Person from a source other than its activities as the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as applicable, or (iii) is or becomes generally available to the public other than as a result of a disclosure by the Master Servicer Servicing Personnel, the Special Servicer Servicing Personnel, the Operating Advisor Surveillance Personnel, the Certificate Administrator Personnel or the Trustee Personnel.
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“Consent Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, any and all fees actually paid by a Mortgagor with respect to any consent or approval required pursuant to the terms of the related Loan (or Serviced Whole Loan, if applicable) Documents that does not involve a modification evidenced by a signed writing, assumption, extension, waiver or amendment of the terms of the related Mortgage Loan (or Serviced Whole Loan) Documents.
“Consultation Termination Event”: The event that (i) occurs for so long as no Class of Control Eligible Certificates has a Certificate Principal Balance (without regard to the application of any Appraisal Reduction Amounts) at least equal to 25% of the initial Certificate Principal Balance of such Class or (ii) shall be deemed to occur pursuant to Section 6.09(d) or Section 6.09(h) of this Agreement.
“Control Eligible Certificates”: Any of the Class F and Class NR Certificates.
“Control Termination Event”: The event that (i) occurs for so long as no Class of Control Eligible Certificates has a Certificate Principal Balance (as notionally reduced by any Appraisal Reduction Amounts allocable to such Class in accordance with Section 3.10(a) of this Agreement) at least equal to 25% of the initial Certificate Principal Balance of such Class or (ii) shall be deemed to occur pursuant to Section 6.09(d) or Section 6.09(h) of this Agreement.
“Controlling Class”: As of any time of determination, the most subordinate Class of Control Eligible Certificates then-outstanding that has a Certificate Principal Balance (as notionally reduced by any Appraisal Reduction Amounts allocable to such Class in accordance with Section 3.10(a) of this Agreement) at least equal to 25% of the initial Certificate Principal Balance of such Class or, if no Class of Control Eligible Certificates meets the preceding requirement, the Class F Certificates. The Controlling Class as of the Closing Date will be the Class NR Certificates.
“Controlling Class Certificateholder”: Each Holder (or Beneficial Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Administrator from time to time.
“Controlling Class Representative”: The Controlling Class Certificateholder (or other representative) selected by at least a majority of the Controlling Class Certificateholders, by Certificate Principal Balance, as identified by notice to the Certificate Registrar by the applicable Controlling Class Certificateholders from time to time, with notice of such selection delivered to the Special Servicer, the Master Servicer, the Trustee, the Certificate Administrator and the Operating Advisor; provided that, (i) absent such selection, or (ii) until a Controlling Class Representative is so selected, or (iii) upon receipt of notice from the Controlling Class Certificateholders representing more than 50% of the Certificate Principal Balance of the Controlling Class that a Controlling Class Representative is no longer so designated, the Controlling Class Representative shall be the Controlling Class Certificateholder that owns Certificates representing the largest portion of the Certificate Principal Balance of the Controlling Class as identified to the Certificate Registrar; provided, further, that the Controlling Class Representative shall not be a Mortgagor or an affiliate of a Mortgagor.
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The initial Controlling Class Representative on the Closing Date shall be RREF II CMBS AIV, LP, and the Certificate Registrar and the other parties to this Agreement shall be entitled to assume RREF II CMBS AIV, LP or any successor Controlling Class Representative selected thereby is the Controlling Class Representative on behalf of RREF II CMBS AIV, LP as Holder (or Beneficial Owner) of each Class of Control Eligible Certificates, until the Certificate Registrar receives (a) written notice of a replacement Controlling Class Representative or (b) written notice that RREF II CMBS AIV, LP is no longer the Holder (or Beneficial Owners) of a majority of the applicable Control Eligible Certificates.
“Corporate Trust Office”: The office of the Trustee or the Certificate Administrator, at which at any particular time its respective corporate trust business shall be principally administered. At the date of this Agreement, the corporate trust office of the Trustee and Certificate Administrator is located at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services, CSAIL 2015-C3, and (iii) the Certificate Administrator is located for certificate transfer purposes, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: CSAIL 2015-C3.
“Corrected Mortgage Loan”: Any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan that had been a Specially Serviced Loan but has ceased to be such in accordance with the definition of “Specially Serviced Loan” (other than by reason of a Liquidation Event occurring in respect of such Mortgage Loan or Serviced Whole Loan or a related Mortgaged Property becoming an REO Property).
“Corresponding Certificates”: As identified in the Preliminary Statement with respect to any Lower-Tier Regular Interest or Component.
“Corresponding Component”: As identified in the Preliminary Statement with respect to any Class of Regular Certificates or Lower-Tier Regular Interest.
“Corresponding Lower-Tier Regular Interest”: As identified in the Preliminary Statement with respect to any Class of Regular Certificates or Component.
“CREFC®”: CRE Finance Council, formerly known as Commercial Mortgage Securities Association, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC®” shall be deemed to refer to such other association or organization as may exist whose principal membership consists of servicers, trustees, certificateholders, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and whose principal purpose is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC®” shall be deemed to refer to such other association or organization as shall be selected by the Master Servicer and
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reasonably acceptable to the Certificate Administrator, the Special Servicer and, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative.
“CREFC® Advance Recovery Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Assumption Modification Posting Instructions Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Assumption Modification Posting Instructions Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Bond Level File”: The data file in the “CREFC® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Capitalized Amounts/Non-Recoverable Trust Expense Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Capitalized Amounts/Non-Recoverable Trust Expense Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Collateral Summary File”: The data file in the “CREFC® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan
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Status Report” available as of the Closing Date on the CREFC® Website, or no later than 90 days after its adoption, such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Financial File”: The data file in the “CREFC® Financial File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan (including any REO Mortgage Loan) and for any Distribution Date, an amount accrued during the related Interest Accrual Period at the CREFC® Intellectual Property Royalty License Fee Rate on, in the case of the initial Distribution Date, the Cut-Off Date Principal Balance of such Mortgage Loan and, in the case of any subsequent Distribution Date, the Stated Principal Balance of such Mortgage Loan as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the CREFC® Intellectual Property Royalty License Fee shall be payable from the Lower-Tier REMIC.
“CREFC® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan, a rate equal to 0.0005% per annum.
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“CREFC® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Investor Reporting Package (IRP)”: Collectively:
(a) the following seven electronic files (and any other files as may be, or have been, adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Loan Setup File, (ii) CREFC® Loan Periodic Update File, (iii) CREFC® Property File, (iv) CREFC® Bond Level File, (v) CREFC® Financial File, (vi) CREFC® Collateral Summary File and (vii) CREFC® Special Servicer Loan File;
(b) the following ten supplemental reports (and any other reports as may be, or have been, adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Delinquent Loan Status Report, (ii) CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iii) CREFC® REO Status Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® Comparative Financial Status Report, (vi) CREFC® Servicer Watchlist/Portfolio Review Guidelines, (vii) CREFC® Loan Level Reserve/LOC Report, (viii) CREFC® NOI Adjustment Worksheet, (ix) CREFC® Advance Recovery Report, and (x) CREFC® Total Loan Report;
(c) the following fifteen templates (and any other templates as may be, or have been, adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Appraisal Reduction Template, (ii) CREFC® Servicer Realized Loss Template, (iii) CREFC® Reconciliation of Funds Template, (iv) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (v) CREFC® Historical Liquidation Loss Template, (vi) CREFC® Interest Shortfall Reconciliation Template, (vii) CREFC® Servicer Remittance to Certificate Administrator Template, (viii) CREFC® Significant Insurance Event Template, (ix) CREFC® Loan Modification Report Template, (x) CREFC® Loan Liquidation Report Template, (xi) CREFC® REO Liquidation Report Template, (xii) CREFC® Payment Posting Instructions Template, (xiii) CREFC® Modification Posting Instructions Template, (xiv) CREFC® Assumption Modification Posting Instructions Template, and (xv) CREFC® Capitalized Amounts/Non-Recoverable Trust Expense Template; and
(d) such other reports and data files as CREFC® may designate, or has designated, as part of the “CREFC® Investor Reporting Package (CREFC® IRP)” from time to time.
“CREFC® License Agreement”: The License Agreement, in the form set forth on the website of CREFC® on the Closing Date, relating to the use of the CREFC® trademarks and trade names.
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“CREFC® Loan Level Reserve/LOC Report”: The monthly report in the “CREFC® Loan Level Reserve/LOC Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Loan Liquidation Report Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Loan Modification Report Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification Report Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Loan Periodic Update File”: The data file in the “CREFC® Loan Periodic Update File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Loan Setup File”: The data file in the “CREFC® Loan Setup File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Modification Posting Instructions Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Modification Posting Instructions Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® NOI Adjustment Worksheet”: The worksheet in the “NOI Adjustment Worksheet” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Operating Statement Analysis Report”: The monthly report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of
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such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Payment Posting Instructions Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Payment Posting Instructions Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Property File”: The data file in the “CREFC® Property File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® REO Liquidation Report Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® REO Status Report”: The report in the “REO Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Servicer Remittance to Certificate Administrator Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Servicer Remittance to Certificate Administrator Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
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“CREFC® Servicer Watch List/Portfolio Review Guidelines”: As of each Determination Date a report, including and identifying each non-Specially Serviced Loan satisfying the “CREFC® Portfolio Review Guidelines” approved from time to time by the CREFC® in the “CREFC® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Significant Insurance Event Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Significant Insurance Event Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Special Servicer Loan File”: The data file in the “CREFC® Special Servicer Loan File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Total Loan Report”: The report in the “Total Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Website”: The CREFC®’s Website located at “www.crefc.org” or such other primary website as the CREFC® may establish for dissemination of its report forms.
“Cross-Over Date”: The Distribution Date on which the Certificate Principal Balance of each Class of Principal Balance Certificates (other than the Class A Certificates) is (or will be) reduced to zero due to the application of Realized Losses.
“CSAIL 2015-C1 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of March 1, 2015, between Credit Suisse First Boston Mortgage Securities Corp., as depositor, KeyBank National Association, as master servicer, C-III Asset Management LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wells Fargo Bank, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor, entered into in connection with the issuance of the Commercial Mortgage Pass-Through Certificates, Series 2015-C1.
“CSAIL 2015-C2 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of May 1, 2015, between Credit Suisse First Boston Mortgage Securities Corp., as depositor, Wells Fargo Bank, National Association, as master servicer, Rialto Capital Advisors, LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Park Bridge Lender
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Services LLC, as operating advisor, entered into in connection with the issuance of the Commercial Mortgage Pass-Through Certificates, Series 2015-C2.
“Custodial Agreement”: The custodial agreement, if any, from time to time in effect between the Custodian named therein and the Certificate Administrator, as the same may be amended or modified from time to time in accordance with the terms thereof. For avoidance of doubt, as of the Closing Date, the Custodian is the Certificate Administrator.
“Custodian”: Any Custodian appointed pursuant to Section 5.10 of this Agreement and, unless the Certificate Administrator is Custodian, named pursuant to any Custodial Agreement. The Custodian may (but need not) be the Certificate Administrator or the Master Servicer or any Affiliate or agent of the Certificate Administrator or the Master Servicer, but may not be the Depositor or any Affiliate thereof.
“Cut-Off Date”: With respect to each Mortgage Loan, the Due Date in August 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first due date in September 2015, the date that would have been its Due Date in August 2015 under the terms of that Mortgage Loan if a Monthly Payment were scheduled to be due in that month).
“Cut-Off Date Principal Balance”: With respect to any Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-Off Date, after application of all payments of principal due on or before such date, whether or not received.
“DBRS”: DBRS, Inc. and its successors in interest. If neither DBRS nor any successor remains in existence, “DBRS” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“Debt Service Coverage Ratio”: With respect to any Mortgage Loan (or Serviced Whole Loan, if applicable), for any twelve-month period covered by an annual operating statement for the related Mortgaged Property, the ratio of (i) Net Operating Income produced by the related Mortgaged Property during such period to (ii) the aggregate amount of Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan (or Serviced Whole Loan, if applicable) during such period; provided that with respect to the Mortgage Loans (and with respect to any Serviced Whole Loan that includes a Mortgage Loan) identified on the Mortgage Loan Schedule as paying interest only for a specified period of time set forth in the related Mortgage Loan Documents and then paying principal and interest, the related Monthly Payment will be calculated (for purposes of this definition only) to include interest and principal (based on the remaining amortization term indicated in the Mortgage Loan Schedule).
“Default”: An event of default under the Mortgage Loan (or Serviced Whole Loan, if applicable) or an event which, with the passage of time or the giving of notice, or both, would constitute an event of default under the Mortgage Loan (or Serviced Whole Loan, if applicable).
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“Default Interest”: With respect to any Mortgage Loan or Companion Loan, all interest (other than Excess Interest) accrued in respect of such Mortgage Loan or Companion Loan as provided in the related Note(s) or Mortgage as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Loan Rate.
“Default Rate”: With respect to each Mortgage Loan or Companion Loan, the per annum rate at which interest accrues on such Mortgage Loan or Companion Loan, as the case may be, following any event of default on such Mortgage Loan or Companion Loan, as the case may be, including a default in the payment of a Monthly Payment or a Balloon Payment.
“Defaulted Mortgage Loan”: A Mortgage Loan or Serviced Whole Loan (i) that is delinquent at least sixty days in respect of its Monthly Payments or delinquent in respect of its Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any grace period permitted by the related Mortgage or Note(s) and without regard to any acceleration of payments under the related Mortgage and Note(s) or (ii) as to which the Master Servicer or Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Note(s).
“Defaulted Serviced Whole Loan”: Any Serviced Whole Loan that is a Defaulted Mortgage Loan.
“Defeasance Loan”: Those Mortgage Loans which provide the related Mortgagor with the option to defease the related Mortgaged Property.
“Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Custodian, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article X of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.
“Definitive Certificate”: Any Certificate in fully registered certificated form without interest coupons.
“Depositor”: Credit Suisse First Boston Mortgage Securities Corp., a Delaware corporation, and its successors and assigns.
“Depository”: The Depository Trust Company or a successor appointed by the Certificate Registrar (which appointment shall be at the direction of the Depositor if the Depositor is legally able to do so).
“Depository Participant”: A Person for whom, from time to time, the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
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“Designated Servicing Documents”: With respect to any Mortgage Loan or Serviced Whole Loan, collectively the following documents:
(1) (A) a copy of the executed Note(s) for such Mortgage Loan (or, alternatively, if the original executed Note(s) have been lost, a copy of a lost note affidavit and indemnity with a copy of such Note(s)), and (B) in the case of a Serviced Whole Loan, a copy of the executed Note(s) for the related Companion Loan;
(2) a copy of the related Loan Agreement, if any;
(3) a copy of the Mortgage;
(4) a copy of the lock box agreement or cash management agreement, if any, relating to such Mortgage Loan or Serviced Whole Loan, if any;
(5) any pre-funding insurance review documentation and insurance certificates (for insurance policies other than title insurance policy and environmental policy) or a marked up commitment therefor;
(6) a copy of any related title insurance policy or a marked up commitment therefor;
(7) a copy of any environmental insurance policy or a marked up commitment therefor;
(8) legal description of the related Mortgaged Property;
(9) a copy of the related escrow agreement and the related security agreement (in each case, if such item is a document separate from the Loan Agreement and the Mortgage);
(10) a copy of the agreement governing post-closing obligations (if such item is a document separate from the Loan Agreement and the Mortgage), if any;
(11) a copy of the closing statement and/or sources and uses statement;
(12) the related Mortgage Loan Seller’s asset summary, if any (provided that the delivery of such item shall not result in any liability to the related Mortgage Loan Seller);
(13) the related Mortgagor tax ID;
(14) a PIP Schedule (if such item is a document separate from the Loan Agreement and the Mortgage), if any;
(15) a copy of an approved operating budget, if applicable;
(16) a copy of the related Ground Lease relating to such Mortgage Loan, if any; and
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(17) in the case of a Serviced Whole Loan, a copy of the related Co-Lender Agreement.
“Determination Date”: With respect to any Distribution Date, the eleventh day of the calendar month of the related Distribution Date or, if the eleventh day is not a Business Day, the next Business Day, commencing in September 2015.
“Directly Operate”: With respect to any REO Property, the furnishing or rendering of services to the tenants thereof that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for sale to customers in the ordinary course of a trade or business or any use of such REO Property in a trade or business conducted by the Trust Fund, or the performance of any construction work on the REO Property (other than the completion of a building or improvement, where more than 10% of the construction of such building or improvement was completed before default became imminent), other than through an Independent Contractor; provided, however, that the Special Servicer, on behalf of the Trust Fund, shall not be considered to Directly Operate an REO Property solely because the Special Servicer, on behalf of the Trust Fund, establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
“Disclosable Special Servicer Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Whole Loan or REO Property (other than any interest in any REO Property acquired with respect to any Non-Serviced Whole Loan), for which it is the Special Servicer, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees and rebates) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Mortgagor, any Manager, any guarantor or indemnitor in respect of any such Mortgage Loan or Serviced Whole Loan and any purchaser of any Mortgage Loan, Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of any such Mortgage Loan (or Serviced Whole Loan, if applicable), the management or disposition of any such REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement with respect to which it is the Special Servicer other than (1) any compensation to which the Special Servicer is entitled under this Agreement and (2) any Permitted Special Servicer/Affiliate Fees.
“Disqualified Non-U.S. Tax Person”: With respect to a Class R Certificate, any Non-U.S. Tax Person or agent thereof other than (i) a Non-U.S. Tax Person that holds the Class R Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or (ii) a Non-U.S. Tax Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificate will not be disregarded for federal income tax purposes.
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“Disqualified Organization”: Any of (a) the United States, a State or any political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (d) rural electric and telephone cooperatives described in Code Section 1381(a)(2), or (e) any other Person so designated by the Certificate Registrar based upon an Opinion of Counsel to the effect that any Transfer to such Person may cause either Trust REMIC to be subject to tax or to fail to qualify as a REMIC for federal income tax purposes at any time that the Certificates are outstanding. For purposes of this definition, the terms “United States,” “State” and “International Organization” shall have the meanings set forth in Code Section 7701 or successor provisions.
“Distribution Account”: The Lower-Tier Distribution Account and the Upper-Tier Distribution Account, each of which may be subaccounts of a single Eligible Account.
“Distribution Date”: The fourth Business Day following the Determination Date in each month, commencing September 2015. The first Distribution Date shall be September 17, 2015.
“Distribution Date Statement”: As defined in Section 4.02(a) of this Agreement.
“Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Operating Advisor, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Article X of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction. For the avoidance of doubt, as of the Closing Date no parties appear on the Do Not Hire List.
“Document Defect”: As defined in Section 2.03(a) of this Agreement.
“Due Date”: With respect to (i) any Mortgage Loan or Companion Loan on or prior to its Maturity Date, the day of the month set forth in the related Note(s) on which each Monthly Payment thereon is scheduled to be first due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor, the day of the month set forth in the related Note(s) on which each Monthly Payment on such Mortgage Loan or Companion Loan, as the case may be, had been scheduled to be first due, and (iii) any REO Mortgage Loan or REO Companion Loan, the day of the month set forth in the related Note(s) on which each Monthly Payment on the related Mortgage Loan or Companion Loan, as the case may be, had been scheduled to be first due.
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“Early Termination Notice Date”: Any date as of which the aggregate Stated Principal Balance of the Mortgage Loans (including REO Mortgage Loans) is less than 1.0% of the sum of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date.
“EDGAR”: The Commission’s Electronic Data Gathering and Retrieval System.
“EDGAR-Compatible Format”: Any format compatible with EDGAR, including HTML, Word, Excel or clean, searchable PDFs.
“Eligible Account”: Any of (i) a segregated account or accounts maintained with either a federal or state chartered depository institution or trust company (including the Trustee and the Certificate Administrator), the long-term unsecured debt obligations (or short-term unsecured debt obligations if the account holds funds for less than 30 days) or commercial paper of which are rated (a) “A2” by Moody’s (or, if applicable, the short term rating is at least “P-1” by Moody’s) and (b) “AA-” by Fitch (or “A” by Fitch so long as the short-term deposit or short-term unsecured debt obligations of such depository institution or trust company are rated no less than “F1” by Fitch), (ii) an account or accounts maintained with PNC Bank, National Association or Wells Fargo Bank, National Association so long as PNC Bank, National Association’s or Wells Fargo Bank, National Association’s long-term unsecured debt rating or deposit account rating shall be at least “A2” by Moody’s (if the deposits are to be held in the account for more than 30 days) and “A” by Fitch (if the deposits are to be held in the account for more than 30 days) or PNC Bank, National Association’s or Wells Fargo Bank, National Association’s short-term deposit account or short-term unsecured debt rating shall be at least “P-1” by Moody’s (if the deposits are to be held in the account for 30 days or less) and “A” by Fitch (if the deposits are to be held in the account for 30 days or less), (iii)(a) solely with respect to the escrow accounts and reserve accounts, an account or accounts maintained at KeyBank; provided that (1) KeyBank’s long-term unsecured debt rating is at least “A3” by Moody’s and the aggregate amounts in such escrow and reserve accounts do not exceed 10% of aggregate stated principal balance of all the Mortgage Loans and Serviced Companion Loans and (2) KeyBank’s (A) short-term unsecured debt rating is at least “F1” by Fitch if the deposits are to be held in such account for 30 days or less and (B) long-term unsecured debt rating is at least “A-” by Fitch if the deposits are to be held in such account for more than 30 days and (b) with respect to any account other than the escrow accounts and reserve accounts, an account or accounts maintained at KeyBank; provided that (1) KeyBank’s long-term unsecured debt rating is at least “A2” by Moody’s and “A-” by Fitch if the deposits are to be held in such account for more than 30 days and (2) KeyBank’s short-term unsecured debt rating is at least “P-1” by Moody’s and “F1” by Fitch if the deposits are to be held in such account for 30 days or less, (iv) a segregated trust account (or sub-accounts of a single account in the case of the Excess Liquidation Proceeds Reserve Account, Interest Reserve Account or any Distribution Account) or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity, the long-term unsecured debt obligations of such institution or trust company are rated at least “A2” by Moody’s and “A” by Fitch and which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), or (v) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)-(iv) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, or (vi) such other account or accounts not listed in clauses (i)-(iv) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency. Eligible Accounts may bear interest.
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No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.
“Eligible Operating Advisor”: An institution (i) that is the special servicer or operating advisor on a transaction rated by any of Moody’s, Fitch, KBRA, S&P, Morningstar and/or DBRS and that has not been a special servicer or operating advisor on a transaction for which Moody’s, Fitch, KBRA, S&P, Morningstar and/or DBRS has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing concerns with the special servicer or operating advisor, as applicable, as the sole or material factor in such rating action, (ii) that can and will make the representations and warranties set forth in Section 2.09(a) of this Agreement, (iii) that is not the Special Servicer, the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder or an Affiliate of the Special Servicer, the Controlling Class Representative, the Charles River Plaza North Directing Holder or the WPC Department Store Portfolio Directing Holder and (iv) that has not been paid any fees, compensation or other remuneration by the Special Servicer or successor special servicer (x) in respect of its obligations under this Agreement or (y) for the recommendation to replace the Special Servicer or the appointment of a successor special servicer to become the Special Servicer.
“Emergency Advance”: Any Property Advance with respect to a Specially Serviced Loan that must be made in an emergency situation or on an urgent basis in order to avoid any material penalty, any material harm to a Mortgaged Property securing a Mortgage Loan or any other material adverse consequence to the Trust Fund or any related Companion Loan Holder.
“Environmental Report”: The environmental audit report or reports with respect to each Mortgaged Property delivered to the related Mortgage Loan Seller in connection with the origination or acquisition of the related Mortgage Loan.
“ERISA”: The Employee Retirement Income Security Act of 1974, as it may be amended from time to time.
“ERISA Restricted Certificate”: Any Class E, Class F or Class NR Certificate; provided that any such Certificate: (a) will cease to be considered an ERISA Restricted Certificate and (b) will cease to be subject to the transfer restrictions with respect to ERISA Restricted Certificates contained in Section 5.03(m) of this Agreement if, as of the date of a proposed transfer of such Certificate, either (i) it is rated in one of the four highest generic ratings categories by a Rating Agency authorized by the U.S. Department of Labor or (ii) relevant provisions of ERISA would permit the transfer of such Certificate to a Plan.
“Escrow Account”: As defined in Section 3.04(b) of this Agreement.
“Escrow Payment”: Any payment made by any Mortgagor to the Master Servicer pursuant to the related Mortgage, Lockbox Agreement or Loan Agreement for the account of such Mortgagor for application toward the payment of taxes, insurance premiums, assessments,
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ground rents, mandated improvements and similar items in respect of the related Mortgaged Property.
“Euroclear”: Euroclear Bank, as operator of the Euroclear System, and its successors in interest.
“Excess Interest”: With respect to each ARD Loan, additional interest accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to the difference between the Revised Rate and the Mortgage Loan Rate, plus any compound interest thereon, to the extent permitted by applicable law and the related Loan Documents. The Excess Interest shall not be an asset of the Lower Tier REMIC or the Upper Tier REMIC, but rather shall be an asset of the Grantor Trust.
“Excess Interest Distribution Account”: The trust account or subaccount created and maintained by the Certificate Administrator pursuant to Section 3.05(d) of this Agreement in trust for the Class Z Certificateholders, which (subject to any changes in the identities of the Certificate Administrator and/or the Trustee) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, and the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 – Excess Interest Distribution Account”. Any such account shall be an Eligible Account. The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the Class Z Certificates. The Excess Interest Distribution Account shall not be an asset of the Lower Tier REMIC or the Upper Tier REMIC, but rather shall be an asset of the Grantor Trust.
“Excess Liquidation Proceeds”: With respect to any Mortgage Loan, the excess of (i) Liquidation Proceeds of that Mortgage Loan or related REO Property (net of any related Liquidation Expenses and any amounts payable to a related Companion Loan Holder pursuant to the related Co-Lender Agreement), over (ii) the amount that would have been received if a principal payment in full had been made, and all other outstanding amounts had been paid, with respect to such Mortgage Loan on the Due Date immediately following the date on which such proceeds were received plus any Additional Trust Fund Expenses related to such Mortgage Loan. With respect to each Non-Serviced Whole Loan, “Excess Liquidation Proceeds” shall mean each Non-Serviced Mortgage Loan’s pro rata share of any “Excess Liquidation Proceeds” determined in accordance with the applicable Other Pooling and Servicing Agreement that are received by the Trust.
“Excess Liquidation Proceeds Reserve Account”: The trust account or subaccount created and maintained by the Certificate Administrator pursuant to Section 3.05(c) of this Agreement for the benefit of the Certificateholders, which (subject to any changes in the identity of the Trustee or the Certificate Administrator) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 – Excess Liquidation Proceeds Reserve Account.” Any such account shall be an Eligible Account.
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“Excess Modification Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, the sum of (A) the excess of (i) any and all Modification Fees with respect to any modification, waiver, extension or amendment of any of the terms of the related Mortgage Loan (or Serviced Whole Loan, as applicable), over (ii) all unpaid or unreimbursed Advances and Additional Trust Fund Expenses (other than (1) Special Servicing Fees, Workout Fees and Liquidation Fees and (2) Borrower Delayed Reimbursements) outstanding or previously incurred on behalf of the Trust with respect to the related Mortgage Loan (or Serviced Whole Loan, if applicable) and reimbursed from such Modification Fees (which such Additional Trust Fund Expenses shall be reimbursed from such Modification Fees) and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise as Penalty Charges, specific reimbursements or otherwise. All Excess Modification Fees earned by the Special Servicer shall offset any future Workout Fees or Liquidation Fees payable with respect to the related Mortgage Loan (or Serviced Whole Loan, if applicable) or REO Property; provided that if the related Mortgage Loan (or Serviced Whole Loan, if applicable) ceases being a Corrected Mortgage Loan, and is subject to a subsequent modification, any Excess Modification Fees earned by the Special Servicer prior to such Mortgage Loan (or Serviced Whole Loan, if applicable) ceasing to be a Corrected Mortgage Loan shall no longer be offset against future Liquidation Fees and Workout Fees unless such Mortgage Loan (or Serviced Whole Loan, if applicable) ceased to be a Corrected Mortgage Loan within 12 months of it becoming a modified Mortgage Loan (or Serviced Whole Loan, if applicable). If such Mortgage Loan (or Serviced Whole Loan, if applicable) ceases to be a Corrected Mortgage Loan, the Special Servicer shall be entitled to a Liquidation Fee or Workout Fee (to the extent not previously offset) with respect to the new modification, waiver, extension or amendment or future liquidation of the Specially Serviced Loan or related REO Property (including in connection with a repurchase, sale, refinance, discounted or full pay-off or other liquidation); provided that any Excess Modification Fees earned and paid to the Special Servicer in connection with such subsequent modification, waiver, extension or amendment shall be applied to offset such Liquidation Fee or Workout Fee to the extent described above. Within any prior 12-month period, all Excess Modification Fees earned by the Master Servicer or the Special Servicer (after taking into account any offset described above applied during such prior 12-month period) individually, and not in the aggregate, with respect to any Mortgage Loan (or Serviced Whole Loan, if applicable) shall be subject to a cap equal to the greater of (i) 1.0% of the outstanding principal balance of such Mortgage Loan (or Serviced Whole Loan, if applicable) after giving effect to such transaction, and (ii) $25,000.
“Excess Penalty Charges”: With respect to any Mortgage Loan (or Serviced Whole Loan, if applicable, but not with respect to any Non-Serviced Mortgage Loan) and any Collection Period, the sum of (A) the excess of (i) any and all Penalty Charges collected in respect of such Mortgage Loan (or Serviced Whole Loan, if applicable) during such Collection Period, over (ii) all unpaid or unreimbursed Additional Trust Fund Expenses (including without limitation the reimbursement of Advances and interest thereon to the extent not otherwise paid or reimbursed by the Mortgagor) (other than Special Servicing Fees, Workout Fees and Liquidation Fees) outstanding or previously incurred on behalf of the Trust (and, if applicable, the holder of the related Serviced Companion Loan), with respect to such Mortgage Loan (or Serviced Whole Loan, if applicable) and reimbursed from such Penalty Charges (which such Additional Trust Fund Expenses shall be reimbursed from such Penalty Charges) in accordance with Section 3.14
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of this Agreement and (B) expenses previously paid or reimbursed from Penalty Charges as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. For the avoidance of doubt, any outstanding Additional Trust Fund Expenses shall not be deemed to be unreimbursed or unpaid if proceeds collected during the related Collection Period with respect to such Mortgage Loan are sufficient to pay or reimburse such outstanding Additional Trust Fund Expenses, all other amounts due and owing under the related Mortgage Loan Documents and all other fees and expenses payable or reimbursable to the other parties to this Agreement or the Trust.
“Excess Prepayment Interest Shortfall”: With respect to any Distribution Date, the aggregate amount, if any, by which the Prepayment Interest Shortfalls with respect to all Principal Prepayments received with respect to the Mortgage Loans and Companion Loans during the related Prepayment Period exceed the Compensating Interest Payment.
“Excess Servicing Fees”: With respect to each Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), that portion of the Servicing Fee that accrues at a per annum rate equal to the Excess Servicing Fee Rate.
“Excess Servicing Fee Rate”: With respect to each Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), a rate per annum equal to the Master Servicer’s interest in the Servicing Fee Rate (subject to the rights of the Mortgage Loan Seller Sub-Servicers (identified on Exhibit S to this Agreement) to an interest in the Servicing Fee Rate as identified on the Mortgage Loan Schedule as the Sub-Servicing Fee Rate) minus 0.0025%; provided that such rate shall be subject to reduction at any time following any resignation of the Master Servicer pursuant to Section 6.04 of this Agreement (if no successor is appointed in accordance with Section 6.04 of this Agreement) or any termination of the Master Servicer pursuant to Section 7.01 of this Agreement, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 7.02 of this Agreement.
“Excess Servicing Fee Right”: With respect to each Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the right to receive Excess Servicing Fees. In the absence of any transfer of the Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.
“Exchange Act”: The Securities Exchange Act of 1934, as it may be amended from time to time.
“FATCA” means Section 1471 through 1474 of the Code and any regulations or official interpretations thereof (including any revenue ruling, revenue procedure, notice or similar guidance issued by the U.S. Internal Revenue Service thereunder as a precondition to relief or exemption from taxes under such Sections, regulations and interpretations), any agreements entered into pursuant to Code Section 1471(b)(1), and including any amendments made to FATCA after the date of this Agreement.
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“FDIC”: The Federal Deposit Insurance Corporation, and its successors in interest.
“Final Asset Status Report”: With respect to any Specially Serviced Loan, each related Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the Operating Advisor, the Controlling Class Representative, the Charles River Plaza North Directing Holder (solely with respect to the Charles River Plaza North Whole Loan), the WPC Department Store Portfolio Directing Holder (solely with respect to the WPC Department Store Portfolio Whole Loan) or any related Serviced Companion Loan Holder (or its Companion Loan Holder Representative), in each case, which does not include any communication (other than the related Asset Status Report) between the Special Servicer, on the one hand, the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder and/or any related Serviced Companion Loan Holder (or its Companion Loan Holder Representative), on the other hand, with respect to such Specially Serviced Loan or Serviced Whole Loan; provided that no Asset Status Report shall be considered to be a Final Asset Status Report unless (A) for each Mortgage Loan other than the Charles River Plaza North Mortgage Loan while the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder or the WPC Department Store Portfolio Mortgage Loan, prior to the occurrence and continuance of a Control Termination Event, the Controlling Class Representative, (B) with respect to the Charles River Plaza North Whole Loan, the holder of the Charles River Plaza North Subordinate Companion Loan (for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder) and (C) with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder, has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to this Agreement in respect of such workout or liquidation, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the Special Servicer in accordance with this Agreement.
“Final Recovery Determination”: With respect to any defaulted Mortgage Loan or Serviced Whole Loan that is a Specially Serviced Loan or REO Mortgage Loan, as the case may be, a determination that there has been a receipt of all of the Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Proceeds and other payments or recoveries that the Special Servicer or the applicable Other Special Servicer with respect to a Non-Serviced Mortgage Loan that is a “Specially Serviced Loan” (or an analogous concept) (as defined in the applicable Other Pooling and Servicing Agreement) or any related REO Property, has determined in accordance with the Servicing Standard will ultimately be recoverable; provided that with respect to each Non-Serviced Mortgage Loan, the Final Recovery Determination shall be made by the applicable Other Special Servicer in accordance with the applicable Other Pooling and Servicing Agreement.
“FIRREA”: The Financial Institutions Reform, Recovery and Enforcement Act, as it may be amended from time to time.
“Fitch”: Fitch Ratings, Inc. and its successors in interest. If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally
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recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“Form 8-K Disclosure Information”: As defined in Section 10.06 of this Agreement.
“General Special Servicer”: As defined in Section 6.08(k) of this Agreement.
“Global Certificates”: Any Certificate registered in the name of the Depository or its nominee.
“Grantor Trust”: A segregated asset pool within the Trust Fund, which at all times shall be treated as a “grantor trust” under the Grantor Trust Provisions, consisting of the Class Z Specific Grantor Trust Assets, beneficial ownership of which is represented by the Class Z Certificates.
“Grantor Trust Provisions”: Subpart E of part I of subchapter J of the Code and Treasury Regulations Section 301.7701-4(c).
“Ground Lease”: The ground lease pursuant to which any Mortgagor holds a leasehold interest in the related Mortgaged Property.
“Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including, without limitation, those so identified pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental laws now or hereafter existing, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.
“Holder”: With respect to any Certificate, a Certificateholder, and with respect to any Lower-Tier Regular Interest, the Trustee for the benefit of the Certificateholders.
“Indemnified Party”: As defined in Section 8.05(c) or Section 11.13(c), as applicable, of this Agreement, as the context requires.
“Indemnifying Party”: As defined in Section 8.05(c) or Section 11.13(c), as applicable, of this Agreement, as the context requires.
“Independent”: When used with respect to any specified Person, any such Person who (i) does not have any direct financial interest, or any material indirect financial interest, in any of a Mortgage Loan Seller, the Depositor, the Trustee, the Operating Advisor, the Certificate Administrator, the Master Servicer, the Special Servicer, the Controlling Class Representative, any Mortgagor, any Companion Loan Holder (or, if applicable, its Companion Loan Holder
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Representative) or any Affiliate thereof, and (ii) is not connected with any such Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Mortgage Loan Sellers, the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Controlling Class Representative, the Operating Advisor, the Certificate Administrator, any Mortgagor, any Companion Loan Holder (or, if applicable, its Companion Loan Holder Representative) or any Affiliate thereof merely because such Person is (A) compensated for services by, or (B) the beneficial owner of 1% or less of any class of securities issued by the Depositor, the Mortgage Loan Sellers, the Trustee, the Master Servicer, the Special Servicer, the Controlling Class Representative, the Operating Advisor, the Certificate Administrator, any Mortgagor, the Companion Loan Holder or any Affiliate thereof, as the case may be, provided that such ownership constitutes less than 1% of the total assets owned by such Person.
“Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the applicable Trust REMIC within the meaning of Code Section 856(d)(3) if such Trust REMIC were a real estate investment trust (except that the ownership tests set forth in that section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class or 35% or more of the aggregate value of all Classes of Certificates), provided that such Trust REMIC does not receive or derive any income from such Person and the relationship between such Person and the Trust REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) addressed to the Master Servicer, the Trustee and the Certificate Administrator has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) if the Master Servicer, on behalf of itself, the Trustee and the Certificate Administrator has received an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Code Section 860G(a)(8) (determined without regard to the exception applicable for purposes of Code Section 860D(a)) or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property (provided that such income would otherwise so qualify).
“Initial Purchaser”: Credit Suisse Securities (USA) LLC.
“Inquiries”: As defined in Section 4.02(a) of this Agreement.
“Institutional Accredited Investor”: An institutional investor which is an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Securities Act or any entity in which all of the equity owners come within such paragraphs.
“Insurance Proceeds”: Proceeds of any fire and hazard insurance policy, title policy or other insurance policy relating to a Mortgage Loan (including any amounts paid by the
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Master Servicer pursuant to Section 3.07 of this Agreement). In the case of Non-Serviced Mortgage Loans, “Insurance Proceeds” means any portion of such proceeds received by the Trust Fund in connection with the related Non-Serviced Mortgage Loan, pursuant to the allocations set forth in the related Co-Lender Agreement.
“Interest Accrual Amount”: With respect to any Distribution Date and any Class of Principal Balance Certificates, an amount equal to interest for the related Interest Accrual Period accrued at the Pass-Through Rate for such Class on the related Certificate Principal Balance outstanding immediately prior to such Distribution Date. With respect to any Distribution Date and any Class of Class X Certificates, an amount equal to the sum of the Accrued Component Interest for the related Interest Accrual Period for all of the respective Components for such Class for such Interest Accrual Period. Calculations of interest due in respect of the Regular Certificates shall be made on the basis of a 360-day year consisting of twelve 30-day months.
“Interest Accrual Period”: With respect to any Distribution Date and any Class of Regular Certificates, the calendar month preceding the month in which such Distribution Date occurs. Each Interest Accrual Period with respect to each Class of Regular Certificates is assumed to consist of 30 days.
“Interest Distribution Amount”: With respect to any Distribution Date and with respect to each Class of Regular Certificates, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class on such Distribution Date pursuant to Section 4.01(j).
“Interest Reserve Account”: The trust account or subaccount created and maintained by the Certificate Administrator pursuant to Section 3.23 of this Agreement, which (subject to any changes in the identity of the Trustee or the Certificate Administrator) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Interest Reserve Account” and which shall be an Eligible Account.
“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates, subject to increase as provided in the penultimate sentence of the first paragraph of Section 4.01(f) of this Agreement, the sum of (a) the portion of the Interest Distribution Amount for such Class remaining unpaid as of the close of business on the preceding Distribution Date, and (b) to the extent permitted by applicable law, (i) other than in the case of a Class of the Class X Certificates, one month’s interest on that amount remaining unpaid at the Pass-Through Rate applicable to such Class of Certificates for the current Distribution Date, and (ii) in the case of a Class of the Class X Certificates, one month’s interest on that amount remaining unpaid at the WAC Rate for such Distribution Date.
“Interested Person”: As of any date of determination, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator,
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the Controlling Class Representative, any Mortgage Loan Seller, a Mortgagor (with respect to its corresponding Mortgage Loan only), a holder of a related mezzanine loan (with respect to its corresponding Mortgage Loan only), a manager of a Mortgaged Property (with respect to its corresponding Mortgage Loan only), any Independent Contractor engaged by the Special Servicer pursuant to Section 3.16 of this Agreement (with respect to its corresponding Mortgage Loan only), or any Person actually known to a Responsible Officer of the Trustee or the Certificate Administrator to be an Affiliate of any of the preceding entities (as applicable, with respect to its corresponding Mortgage Loan only); and, with respect to a Defaulted Serviced Whole Loan, the applicable Other Depositor, the applicable Other Master Servicer, the applicable Other Special Servicer (or any independent contractor engaged by such Other Special Servicer), or the applicable Other Trustee, the related Serviced Companion Loan Holder or its Companion Loan Holder Representative, any holder of a related mezzanine loan, or any Person actually known to a Responsible Officer of the Trustee or the Certificate Administrator to be an Affiliate of any of the preceding entities.
“Investment”: Any direct or indirect ownership interest in any security, note or other financial instrument related to the Certificates or issued or executed by a Mortgagor, a loan directly or indirectly secured by any of the foregoing or a hedging transaction (however structured) that references or relates to any of the foregoing.
“Investment Account”: As defined in Section 3.07(a) of this Agreement.
“Investment Company Act”: The Investment Company Act of 1940, as it may be amended from time to time.
“Investment Decisions”: Investment, trading, lending or other financial decisions, strategies or recommendations with respect to Investments, whether on behalf of the Master Servicer or any Affiliate thereof, the Special Servicer or any Affiliate thereof, the Operating Advisor or any Affiliate thereof, the Certificate Administrator or any Affiliate thereof, or the Trustee or any Affiliate thereof, as applicable, or any Person on whose behalf the Master Servicer or any Affiliate thereof, the Special Servicer or any Affiliate thereof, the Operating Advisor or any Affiliate thereof, the Certificate Administrator or any Affiliate thereof, or the Trustee or any Affiliate thereof, as applicable, has discretion in connection with Investments.
“Investor Certification”: A certificate representing that such Person executing the certificate is a Certificateholder, the Controlling Class Representative to the extent the Controlling Class Representative is not a Certificateholder, a Beneficial Owner or a prospective purchaser of a Certificate (or any investment advisor or manager of the foregoing) and that (i) for purposes of obtaining certain information and notices (including access to information and notices on the Certificate Administrator’s Website) pursuant to this Agreement, (A) such Person is not a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of any of the foregoing or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee, advisor of or investor in or of any of the foregoing and (B) except in the case of a prospective purchaser of a Certificate, such Person has received a copy of the Prospectus Supplement and the Prospectus, substantially in the form of Exhibit M-1 to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website and/or (ii) for purposes of exercising Voting Rights (which does not apply to a prospective
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purchaser of a Certificate), (A) such Person is not a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of any of the foregoing or an agent of any Mortgagor, (B) such Person is or is not the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or an Affiliate of any of the foregoing, (C) such Person has received a copy of the Prospectus Supplement and the Prospectus, substantially in the form of Exhibit M-2 to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website or the Master Servicer’s website and (D) such Person agrees to keep any Privileged Information confidential and will not violate any securities laws; provided that, for purposes of clause (ii), if such Person is an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, such certification shall indicate whether an Affiliate Ethical Wall exists between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, as applicable. A holder of a mezzanine loan will be considered an Affiliate of a Mortgagor with respect to the related Mortgage Loan upon the commencement of foreclosure proceedings by the related mezzanine lender. The Certificate Administrator may require that Investor Certifications be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to a mezzanine lender upon notice from the Special Servicer pursuant to this Agreement that an event of default has occurred under such mezzanine loan. The Special Servicer, to the extent it has actual knowledge, shall promptly give notice to the Certificate Administrator that an event of default under a mezzanine loan has occurred in the form of Exhibit GG attached hereto or such other form as may be mutually agreed to by the Special Servicer and the Certificate Administrator.
“Investor Q&A Forum”: As defined in Section 4.02(a) of this Agreement.
“Investor Registry”: As defined in Section 4.02(a) of this Agreement.
“IRS”: The Internal Revenue Service.
“KBRA”: Kroll Bond Rating Agency, Inc. and its successors in interest. If neither KBRA nor any successor remains in existence, “KBRA” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“Liquidation Event”: With respect to any Mortgage Loan (or Serviced Whole Loan), any of the following events: (i) such Mortgage Loan (or Serviced Whole Loan) is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan (or Serviced Whole Loan); (iii) such Mortgage Loan is repurchased or substituted for by the applicable Mortgage Loan Seller pursuant to Section 6 of the related Loan Purchase Agreement; (iv) such Mortgage Loan is purchased or otherwise acquired by the Special Servicer, the Master Servicer, the Holders of the Controlling Class, Holders of the Class R Certificates or the Remaining Certificateholder pursuant to Section 9.01 of this Agreement; (v) such Mortgage Loan (or Serviced Whole Loan) is purchased by the holder of a mezzanine loan or a Companion
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Loan pursuant to the related intercreditor, co-lender or similar agreement; (vi) the taking of a Mortgaged Property (or portion thereof) by exercise of the power of eminent domain or condemnation; (vii) such Mortgage Loan (or Serviced Whole Loan) is purchased by another party in accordance with Section 3.17 of this Agreement; or (viii) in the case of a Non-Serviced Mortgage Loan, such Mortgage Loan is liquidated by any party pursuant to terms analogous to those set forth in the preceding clauses contained in the applicable Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement. With respect to any REO Property (and the related REO Mortgage Loan or REO Companion Loan), any of the following events: (i) a Final Recovery Determination is made with respect to such REO Property; (ii) such REO Property is purchased or otherwise acquired by the Master Servicer, the Special Servicer, the Holders of the Controlling Class, Holders of the Class R Certificates or the Remaining Certificateholder pursuant to Section 9.01 of this Agreement; (iii) the taking of a REO Property (or portion thereof) by exercise of the power of eminent domain or condemnation; (iv) such REO Property is purchased by the holder of a mezzanine loan pursuant to the related intercreditor agreement; or (v) such REO Property is purchased by another party in accordance with Section 3.17 of this Agreement.
“Liquidation Expenses”: All customary, reasonable and necessary costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in connection with the liquidation of any Specially Serviced Loan or REO Property acquired in respect thereof or final pay-off of a Corrected Mortgage Loan (including, without limitation, legal fees and expenses, committee or referee fees, and, if applicable, brokerage commissions, and conveyance taxes associated with such Mortgage Loan or Mortgaged Property).
“Liquidation Fee”: With respect to each Specially Serviced Loan as to which the Special Servicer receives a full or discounted pay-off (or unscheduled partial payment to the extent such prepayment is required by the Special Servicer as a condition to a workout or results from the Special Servicer’s collection and enforcement efforts) from the related Mortgagor, except as otherwise described below, with respect to any Mortgage Loan (or Serviced Whole Loan) repurchased or substituted as contemplated by Section 2.03 of this Agreement and/or any Specially Serviced Loan or any REO Property as to which the Special Servicer receives Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds, an amount calculated by the application of the applicable Liquidation Fee Rate to the related payment or proceeds (exclusive of any portion of such pay-off or proceeds that represents Penalty Charges); provided that, except as contemplated by the following provisos, no Liquidation Fee will be less than $25,000; provided, further, that the Liquidation Fee (which, if payable, shall, prior to the reduction in accordance with this proviso, be at least $25,000) with respect to any related Specially Serviced Loan or REO Property shall be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the Specially Serviced Loan or REO Property as described in the definition of “Excess Modification Fees” in this Agreement, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee; provided, further, that (a) the Liquidation Fee shall be zero with respect to any Mortgage Loan or Serviced Whole Loan or any Mortgaged Property purchased or repurchased pursuant to clauses (iii) through (v) of the first sentence of the definition of Liquidation Event (unless with respect to (A) clause (iii), the applicable Mortgage Loan Seller does not repurchase or substitute for such Mortgage Loan until after more than
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180 days following its receipt of notice or discovery of a Material Breach or Material Document Defect, and (B) clause (v), the mezzanine loan holder or the Subordinate Companion Loan Holder does not purchase such Mortgage Loan or Serviced Whole Loan within 90 days of when the first purchase option first becomes exercisable under the related intercreditor agreement or Co-Lender Agreement, as applicable) or pursuant to clauses (ii) or (iv) of the second sentence of such definition (unless with respect to clause (iv), the mezzanine loan holder does not purchase such REO Property within 90 days of when the first purchase option first becomes exercisable) and (b) the Liquidation Fee with respect to each Mortgage Loan or REO Mortgage Loan repurchased or substituted for after more than 180 days following the Mortgage Loan Seller’s receipt of notice or discovery of a Material Breach or Material Document Defect shall be in an amount equal to the Liquidation Fee Rate of the outstanding principal balance of such Mortgage Loan or REO Mortgage Loan; provided, further, that if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a)(ii) of the definition of “Specially Serviced Loan” regarding the related Mortgagor’s failure to make a Balloon Payment and the related Liquidation Proceeds are received within 90 days following the related maturity date in connection with the full and final pay-off of the related Mortgage Loan or Serviced Whole Loan, the Special Servicer will not be entitled to collect a Liquidation Fee, but may collect and retain appropriate fees from the related Mortgagor in connection with such liquidation.
“Liquidation Fee Rate”: A rate equal to the lesser of (a) such rate as would result in a Liquidation Fee of $1,000,000 and (b) 1.0% with respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan), each Specially Serviced Loan and each REO Property; provided, however, that if the rate in clause (b) above would result in a Liquidation Fee that would be less than $25,000 in circumstances where a Liquidation Fee is to be paid, then such rate as would yield a Liquidation Fee equal to $25,000.
“Liquidation Proceeds”: The amount (other than Insurance Proceeds and Condemnation Proceeds) received in connection with a Liquidation Event.
“Loan Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the loan agreement, if any, between the related originator(s) and the Mortgagor, pursuant to which such Mortgage Loan or Serviced Whole Loan, as applicable, was made.
“Loan Number”: With respect to any Mortgage Loan, the loan number by which such Mortgage Loan was identified on the books and records of the Depositor or any Sub-Servicer for the Depositor, as set forth in the Mortgage Loan Schedule.
“Loan Purchase Agreement”: The Column Loan Purchase Agreement, the UBSRES Loan Purchase Agreement, the BSPCC Loan Purchase Agreement, the Bancorp Loan Purchase Agreement, and/or the Bank of New York Mellon Loan Purchase Agreement, as applicable.
“Loan Seller Defeasance Rights and Obligations”: As defined in Section 3.09(d)(i) of this Agreement.
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“Loan-to-Value Ratio”: With respect to any Mortgage Loan or Whole Loan, as of any date of determination, the fraction, expressed as a percentage, the numerator of which is the then unpaid principal balance of such Mortgage Loan or Whole Loan, as applicable, and the denominator of which is the Appraised Value of the related Mortgaged Property as determined by an Appraisal thereof.
“Lockbox Account”: With respect to any Mortgaged Property, if applicable, any account created pursuant to any documents relating to a Mortgage Loan or Serviced Whole Loan to receive rental or other income generated by the Mortgaged Property. Any Lockbox Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the related Mortgage Loan or Serviced Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon.
“Lockbox Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the Lockbox or other similar agreement, if any, between the related originator(s) and the Mortgagor, pursuant to which the related Lockbox Account, if any, may have been established.
“Lower-Tier Distribution Account”: The account or accounts created and maintained as a separate account (or separate sub-account within the same account as the Upper-Tier Distribution Account) or accounts by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement, which (subject to any changes in the identity of the Trustee or the Certificate Administrator) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Lower-Tier Distribution Account” and which must be an Eligible Account. The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.
“Lower-Tier Principal Balance”: The principal balance of any Lower-Tier Regular Interest outstanding as of any date of determination. As of the Closing Date, the Lower-Tier Principal Balance of each Lower-Tier Regular Interest shall equal the Original Lower-Tier Principal Balance as set forth in the Preliminary Statement hereto. On each Distribution Date, the Lower-Tier Principal Balance of each Lower-Tier Regular Interest shall be permanently reduced by all distributions of principal deemed to have been made in respect of such Lower-Tier Regular Interest on such Distribution Date pursuant to Section 4.01(a)(ii) of this Agreement, and shall be further permanently reduced on such Distribution Date by all Realized Losses deemed to have been allocated thereto on such Distribution Date pursuant to Section 4.01(e) of this Agreement, and increased on any Distribution Date (as and to the extent provided in the penultimate sentence of the first paragraph of Section 4.01(f) of this Agreement, such that at all times the Lower-Tier Principal Balance of a Lower-Tier Regular Interest shall equal the Certificate Principal Balance of the Corresponding Certificates.
“Lower-Tier Regular Interests”: The Class LA-1, Class LA-2, Class LA-3, Class LA-4, Class LA-SB, Class LA-S, Class LB, Class LC, Class LD, Class LE, Class LF and Class LNR Interests.
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“Lower-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Mortgage Loans (other than the Excess Interest), any related REO Property (or a beneficial interest in the applicable portion of the “REO Property” under the applicable Other Pooling and Servicing Agreement related to any Non-Serviced Mortgage Loan) acquired in respect thereof and all proceeds of such REO Property, other property of the Trust Fund related thereto and amounts held in respect thereof from time to time in the Collection Account, any Serviced Whole Loan Custodial Account, the Interest Reserve Account and the related REO Account and amounts held from time to time in the Lower-Tier Distribution Account and the Excess Liquidation Proceeds Reserve Account, in each case excluding amounts allocable to the Companion Loans and any interest or other income earned on such amounts allocable to the Companion Loans.
“Lower-Tier Residual Interest”: The sole class of “residual interests”, within the meaning of Code Section 860G(a)(2), in the Lower-Tier REMIC and evidenced by the Class R Certificates.
“MAI”: Member of the Appraisal Institute.
“Major Decision”: Collectively:
(a) any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Mortgage Loans and/or Serviced Whole Loans as come into and continue in default;
(b) any modification, consent to a modification or waiver of any monetary term (other than Penalty Charges) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted pay-offs but excluding waiver of Penalty Charges) of a Mortgage Loan or Serviced Whole Loan or any extension of the Maturity Date of any Mortgage Loan or Serviced Whole Loan;
(c) any sale of a Defaulted Mortgage Loan or REO Property (other than in connection with the termination of the Trust Fund) for less than the applicable Purchase Price (excluding any expenses incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the breach or document defect giving rise to a repurchase or substitution obligation under a Mortgage Loan Purchase Agreement);
(d) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;
(e) any release of collateral or any acceptance of substitute or additional collateral for a Mortgage Loan or Serviced Whole Loan, or any consent to either of the foregoing, other than immaterial condemnation actions and other similar takings, or if otherwise required pursuant to the specific terms of the related Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;
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(f) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan or Serviced Whole Loan if lender consent is required, or any consent to such waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor or consent to the incurrence of additional debt, other than any such transfer or incurrence of debt as may be effected without the consent of the lender under the related loan agreement or related to an immaterial easement, right of way or similar agreement;
(g) any property management company changes or franchise changes (in each case, to the extent the lender is required to consent or approve under the Mortgage Loan Documents);
(h) releases of any escrow accounts, reserve accounts or letters of credit held as performance or “earn-out” escrows or reserves other than those required pursuant to the specific terms of the related Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;
(i) any acceptance of an assumption agreement or any other agreement permitting transfers of interests in a Mortgagor or guarantor releasing a Mortgagor or guarantor from liability under a Mortgage Loan or Serviced Whole Loan other than pursuant to the specific terms of such Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;
(j) the determination of the Special Servicer pursuant to clause (b) or clause (c) of the definition of “Specially Serviced Loan”;
(k) following a default or an event of default with respect to a Mortgage Loan or Serviced Whole Loan, any acceleration of such Mortgage Loan or Serviced Whole Loan, as the case may be, or initiation of judicial, bankruptcy or similar proceedings under the related Mortgage Loan Documents or with respect to the related Mortgagor or Mortgaged Property;
(l) any modification, waiver or amendment of an intercreditor agreement, co-lender agreement or similar agreement with any mezzanine lender or subordinate debt holder related to a Mortgage Loan or Serviced Whole Loan, or an action to enforce rights with respect thereto, in each case, in a manner that materially and adversely affects the holders of the Control Eligible Certificates;
(m) any determination of an Acceptable Insurance Default;
(n) any proposed modification or waiver of any material provision in the related Mortgage Loan Documents governing the type, nature or amount of insurance coverage required to be obtained and maintained by the related Mortgagor; and
(o) any approval of any casualty insurance settlements or condemnation settlements, and any determination to apply casualty proceeds or condemnation awards to the reduction of the debt rather than to the restoration of the Mortgaged Property.
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“Mall of New Hampshire Co-Lender Agreement”: With respect to the Mall of New Hampshire Whole Loan, the co-lender agreement, dated as of August 18, 2015, by and between the holder of the Mall of New Hampshire Mortgage Loan and the Mall of New Hampshire Companion Loan Holder, relating to the relative rights of the holder of the Mall of New Hampshire Mortgage Loan and the Mall of New Hampshire Companion Loan Holder, as the same may be amended from time to time in accordance with the terms thereof.
“Mall of New Hampshire Companion Loan”: With respect to the Mall of New Hampshire Whole Loan, the related promissory note made by the related Mortgagor and secured by the Mall of New Hampshire Mortgage and designated as Note A-2, which note is not included in the Trust.
“Mall of New Hampshire Companion Loan Holder”: The holder of the Mall of New Hampshire Companion Loan.
“Mall of New Hampshire Mortgage Loan”: With respect to the Mall of New Hampshire Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Mall of New Hampshire, which is evidenced by promissory note designated as Note A-1.
“Mall of New Hampshire Whole Loan”: The Mall of New Hampshire Mortgage Loan, together with the Mall of New Hampshire Companion Loan, each of which is secured by the Mall of New Hampshire Mortgage. References herein to the Mall of New Hampshire Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Mall of New Hampshire Mortgage.
“Manager”: With respect to any Mortgage Loan or Serviced Whole Loan, any property manager for the related Mortgaged Properties.
“Master Servicer”: Midland Loan Services, a Division of PNC Bank, National Association, a national banking association, and its successor in interest, or any successor Master Servicer appointed as herein provided.
“Master Servicer Remittance Date”: With respect to any Distribution Date, the Business Day immediately preceding such Distribution Date.
“Master Servicer Servicing Personnel”: The divisions and individuals of the Master Servicer who are involved in the performance of the duties of the Master Servicer under this Agreement.
“Material Breach”: As defined in Section 2.03(a) of this Agreement.
“Material Document Defect”: As defined in Section 2.03(a) of this Agreement.
“Maturity Date”: With respect to each Mortgage Loan, the maturity date as set forth on the Mortgage Loan Schedule; and with respect to each Companion Loan, the Maturity Date for the related Mortgage Loan.
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“Modification Fees”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, any and all fees collected from the related Mortgagor with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the related Mortgage Loan Documents (as evidenced by a signed writing) agreed to by the Master Servicer or the Special Servicer, other than (a) any Assumption Fees, Consent Fees or assumption application fees and (b) any fee in connection with a defeasance of such Mortgage Loan (or Serviced Whole Loan).
“Modified Asset”: Any Mortgage Loan or any Serviced Whole Loan as to which any Servicing Transfer Event has occurred and which has been modified by the Special Servicer pursuant to Section 3.24 of this Agreement in a manner that:
(a) affects the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing Monthly Payments current with respect to such Mortgage Loan or Serviced Whole Loan);
(b) except as expressly contemplated by the related Mortgage Loan Documents, results in a release of the lien of the related Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount, or the delivery of substitute real property collateral with a fair market value (as is), that is not less than the fair market value (as is) of the property to be released, as determined by an appraisal delivered to the Special Servicer (at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer, otherwise materially impairs the security for such Mortgage Loan or Serviced Whole Loan or materially reduces the likelihood of timely payment of amounts due thereon.
“Monthly Payment”: With respect to any Mortgage Loan or Serviced Companion Loan, as applicable (other than any REO Mortgage Loan or REO Serviced Companion Loan) and any Due Date, the scheduled monthly payment of principal (if any) and interest at the related Mortgage Loan Rate, which is payable by the related Mortgagor on such Due Date under the related Note or Notes. The Monthly Payment with respect to any Due Date for (i) an REO Mortgage Loan or REO Serviced Companion Loan, (ii) any Mortgage Loan or Serviced Companion Loan that is delinquent at its respective Maturity Date and with respect to which the Special Servicer or Other Special Servicer, as applicable, has not entered into an extension or (iii) any ARD Loan after the related Anticipated Repayment Date, is the monthly payment that would otherwise have been payable on such Due Date had the related Note(s) not been discharged or the related Maturity Date or Anticipated Repayment Date had not been reached, as the case may be, determined as set forth in the preceding sentence and on the assumption that all other amounts, if any, due thereunder are paid when due. The Monthly Payment for any Serviced Whole Loan is the aggregate Monthly Payment for the related Mortgage Loan and Serviced Companion Loan.
“Moody’s”: Moody’s Investors Service, Inc. and its successors in interest. If neither Moody’s Investors Service, Inc. nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other
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comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“Morningstar”: Morningstar Credit Ratings, LLC and its successors in interest. If neither Morningstar Credit Ratings, LLC nor any successor remains in existence, “Morningstar” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
“Mortgage”: The mortgage, deed of trust or other instrument creating a first lien on or first priority ownership interest in a Mortgaged Property securing the Note(s) evidencing a Mortgage Loan or Serviced Whole Loan.
“Mortgage File”: With respect to any Mortgage Loan or the related Serviced Whole Loan, subject to Section 2.01(b), collectively the following documents:
(1) (A) the original executed Note(s) for such Mortgage Loan, endorsed (without recourse, representation or warranty, express or implied) to the order of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3” or in blank, and further showing a complete, unbroken chain of endorsement from the originator (if such originator is not the applicable Mortgage Loan Seller) (or, alternatively, if the original executed Note(s) have been lost, a lost note affidavit and indemnity with a copy of such Note(s)), and (B) in the case of a Whole Loan, a copy of the executed Note(s) for each related Companion Loan;
(2) an original or copy of the Mortgage, together with originals or copies of any and all intervening assignments thereof, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon or certified by the applicable recorder’s office;
(3) an original or copy of any related Assignment of Leases (if such item is a document separate from the Mortgage), together with originals or copies of any and all intervening assignments thereof, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon or certified by the applicable recorder’s office;
(4) an original executed assignment, in recordable form (except for missing recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), of (A) the Mortgage and (B) any related Assignment of Leases (if such item is a document separate from the Mortgage), in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-
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Through Certificates, Series 2015-C3” or in blank and, in the case of any Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 and the holder of the related Companion Loan, as their interests may appear” or a copy of such assignment (if the related Mortgage Loan Seller or its designee, rather than the Trustee or Certificate Administrator, is responsible for the recording thereof);
(5) an original of the assignment of all unrecorded documents relating to the Mortgage Loan (if not already assigned pursuant to clause (4) above, in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3” or in blank and, in the case of any Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Mortgage Pass-Through Certificates, Series 2015-C3 and the holder of the related Companion Loan, as their interests may appear”;
(6) originals or copies of final written modification agreements in those instances where the terms or provisions of the Note(s) for such Mortgage Loan (or, if applicable, any Note(s) of a Serviced Whole Loan) or the related Mortgage have been modified, in each case (unless the particular item has not been returned from the applicable recording office) with evidence of recording indicated thereon if the instrument being modified is a recordable document;
(7) the original (which may be in the form of an electronically signed copy) or a copy of the policy or certificate of lender’s title insurance issued in connection with such Mortgage Loan or the related Serviced Whole Loan (or, if such policy has not been issued, a “marked-up” pro forma title policy marked as binding and countersigned by the title insurer or its authorized agent, or an irrevocable, binding commitment to issue such title insurance policy);
(8) an original or copy of the related Ground Lease relating to such Mortgage Loan (or the related Serviced Whole Loan, if applicable), if any, and any ground lessor estoppel;
(9) an original or copy of the related Loan Agreement, if any;
(10) an original of any guaranty under such Mortgage Loan or the related Serviced Whole Loan, if any;
(11) an original or copy of the lock box agreement or cash management agreement relating to such Mortgage Loan or the related Serviced Whole Loan, if any;
(12) an original or copy of the environmental indemnity from the related Mortgagor, if any;
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(13) an original or copy of the related escrow agreement and the related security agreement (in each case, if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof;
(14) an original assignment of the related security agreement, in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3” or in blank and, in the case of any Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 and the holder of the related Companion Loan, as their interests may appear”;
(15) any filed copies (bearing evidence of filing) or evidence of filing of any UCC financing statements in favor of the originator of such Mortgage Loan or the related Serviced Whole Loan or in favor of any assignee prior to the Trustee, and an original UCC-3 assignment thereof, in form suitable for filing, in favor of the Trustee (or, in each case, a copy thereof, certified to be the copy of such assignment submitted or to be submitted for filing);
(16) in the case of any Mortgage Loan or the related Serviced Whole Loan as to which there exists a related mezzanine loan, the original or a copy of the related intercreditor agreement;
(17) an original or copy of any related environmental insurance policy;
(18) a copy of any letter of credit relating to such Mortgage Loan or the related Whole Loan and any related assignment thereof (with the original to be delivered to the Master Servicer);
(19) copies of any franchise agreement, property management agreement or hotel management agreement and related comfort letters (together with (i) copies of any notices of transfer that are necessary to transfer or assign to the Trust or the Trustee the benefits of such comfort letter or (ii) if the related comfort letter contemplates that a request be made of the related franchisor to issue a replacement comfort letter for the benefit of the Trust or Trustee, a copy of the notice requesting the issuance of such replacement comfort letter (the copy of such notice shall be delivered by the related Mortgage Loan Seller to the Custodian for inclusion in the Mortgage File within the time period set forth in the last paragraph of Section 2.01(b)) and/or estoppel letters relating to such Mortgage Loan or the related Serviced Whole Loan and any related assignment thereof; and
(20) in the case of a Whole Loan, an original or a copy of the related Co-Lender Agreement;
provided that, whenever the term “Mortgage File” is used to refer to documents actually received by the Certificate Administrator or a Custodian appointed thereby, such term shall not be deemed
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to include such documents and instruments required to be included therein unless they are actually so received.
With respect to each Non-Serviced Mortgage Loan, the preceding document delivery requirements shall be met by the delivery by the applicable Mortgage Loan Seller to the Custodian of the originals of the items specified in clause (1) and an original of the related Co-Lender Agreement, if available (and, if not, then a copy) and, to the extent the Custodian is not the custodian on the lead securitization of such Non-Serviced Mortgage Loan, then a copy of each of the other documents specified above, but, in the case of endorsements and assignments to the Trustee, instead endorsed or assigned to the Other Trustee on behalf of the holders of the related Companion Loan Securities and the Trustee (other than with respect to the documents specified in clause (1), for which originals shall be required); provided that if the Custodian ceases to be Custodian or custodian on the lead securitization, it shall obtain the copies described in this sentence. Notwithstanding any contrary provision set forth above, in connection with the WPC Department Store Portfolio Mortgage Loan (1) instruments of assignment may be in blank and need not be recorded pursuant to this Agreement until the earlier of (i) the WPC Department Store Portfolio Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Other Pooling and Servicing Agreement, (ii) the WPC Department Store Portfolio Mortgage Loan becomes a Specially Serviced Loan prior to the WPC Department Store Portfolio Securitization Date, in which case such instruments shall be assigned and recorded in accordance with this Agreement upon such occurrence, and (iii) the expiration of 180 days following the Closing Date, in which case assignments and recordations shall be effected in accordance with the provisions relating to Serviced Whole Loans until the occurrence, if any, of the WPC Department Store Portfolio Securitization Date and (2) following the WPC Department Store Portfolio Securitization Date, the Person selling the WPC Department Store Portfolio Companion Loan designated as Note A-2 to the related Other Depositor, at its own expense, will be entitled to direct the Trustee or Custodian to deliver the originals of all mortgage loan documents in its possession (other than the promissory note(s) evidencing such Mortgage Loan) to the related Other Trustee or the custodian therefor. Such person will require the retention by or delivery to the Trustee or Custodian of photocopies of the mortgage loan documents so delivered to such Other Trustee or other custodian. Such person shall also cause the completion and recordation of instruments of assignment in the name of such Other Trustee or other custodian, and shall be required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded; provided that, to the extent any such assignments have been recorded prior to the WPC Department Store Portfolio Securitization Date, the Trustee shall execute and deliver assignments to the Other Trustee.
“Mortgage Loan”: Each of the mortgage loans transferred and assigned to the Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund, the mortgage loans originally so transferred, assigned and held being identified on the Mortgage Loan Schedule as of the Cut-Off Date. Such term shall include any Specially Serviced Loan, REO Mortgage Loan or defeased Mortgage Loan and each Non-Serviced Mortgage Loan (but not the Companion Loans).
“Mortgage Loan Documents”: With respect to any Mortgage Loan or Serviced Whole Loan, the documents executed or delivered in connection with the origination or any
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subsequent modification of such Mortgage Loan or Serviced Whole Loan or subsequently added to the related Mortgage File.
“Mortgage Loan Rate”: With respect to any Mortgage Loan (including an REO Mortgage Loan) or Serviced Companion Loan (including an REO Serviced Companion Loan), the per annum rate at which interest accrues (or, if and while it is an REO Mortgage Loan or REO Companion Loan, is deemed to accrue) on such Mortgage Loan or Serviced Companion Loan, as the case may be, as stated in the related Note(s) or Co-Lender Agreement, in each case without giving effect to the Default Rate, Excess Interest or the Revised Rate with respect to any Mortgage Loan or any related note(s) held by any Companion Loan Holder, as the case may be.
“Mortgage Loan Schedule”: The list of Mortgage Loans included in the Trust Fund as of the Closing Date being attached hereto as Exhibit B, which list shall set forth the following information with respect to each Mortgage Loan:
(i) the Loan Number;
(ii) the street address (including city, state and zip code) and name of the related Mortgaged Property;
(iii) the Cut-Off Date Principal Balance;
(iv) the original Mortgage Loan Rate;
(v) the (A) remaining term to stated maturity and (B) Stated Maturity Date;
(vi) in the case of a Balloon Mortgage Loan, the remaining amortization term;
(vii) the Servicing Fee Rate (separately identifying any primary servicing fee rate or subservicing fee rate included in the Servicing Fee Rate), and in the case of a Serviced Whole Loan, separately identifying the Servicing Fee Rate applicable to the related Serviced Companion Loan(s) in such Serviced Whole Loan;
(viii) the Mortgage Loan Seller(s);
(ix) whether the Mortgage Loan is cross-collateralized and the cross-collateralized group it belongs to;
(x) whether the Mortgage Loan is an ARD Loan;
(xi) the Anticipated Repayment Date, if applicable;
(xii) the Revised Rate, if applicable; and
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(xiii) whether such Mortgage Loan is part of a Serviced Whole Loan, in which case the information required by clauses (iii), (iv), (v), (vi) and (vii) above shall also be set forth for the Companion Loan in the related Serviced Whole Loan.
“Mortgage Loan Seller”: Each of Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon and their respective successors in interest.
“Mortgage Loan Seller Sub-Servicer”: A Sub-Servicer required to be retained by the Master Servicer by a Mortgage Loan Seller, as listed on Exhibit S to this Agreement, or any successor thereto.
“Mortgage Pool”: All of the Mortgage Loans and any successor REO Mortgage Loans, collectively. The Mortgage Pool does not include the Companion Loans or any related REO Companion Loans.
“Mortgaged Property”: The underlying property securing a Mortgage Loan and the related Companion Loan(s), including any REO Property (including with respect to a Non-Serviced Mortgage Loan), consisting of a fee simple estate, and, with respect to certain Mortgage Loans and the related Companion Loans, a leasehold estate, or both a leasehold estate and a fee simple estate, or a leasehold estate in a portion of the property and a fee simple estate in the remainder, in a parcel of land improved by a commercial property, together with any personal property, fixtures, leases and other property or rights pertaining thereto.
“Mortgagor”: The obligor or obligors on a Note and the related note(s) in favor of a Companion Loan Holder(s), including, without limitation, any Person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under such Note(s) and the related note(s) in favor of a Companion Loan Holder(s).
“Mortgagor Accounts”: As defined in Section 3.07(a) of this Agreement.
“Net Condemnation Proceeds”: The Condemnation Proceeds received with respect to any Mortgage Loan or Serviced Companion Loan (including an REO Mortgage Loan or REO Serviced Companion Loan) net of the amount of (i) costs and expenses incurred with respect thereto and (ii) amounts required to be applied to the restoration or repair of the related Mortgaged Property; provided that, in the case of a Non-Serviced Mortgage Loan, “Net Condemnation Proceeds” under this Agreement shall be limited to any related Condemnation Proceeds that are received by the Trust Fund in connection with such Non-Serviced Mortgage Loan, pursuant to the allocations set forth in the related Co-Lender Agreement.
“Net Insurance Proceeds”: Insurance Proceeds, to the extent such proceeds are not to be applied to the restoration of the related Mortgaged Property or released to the Mortgagor in accordance with the express requirements of the Mortgage or Note(s) or other Mortgage Loan Documents included in the Mortgage File or in accordance with the Servicing Standard, or with respect to the environmental insurance policy, applied to pay any costs, expenses, penalties, fines or similar items; provided that, in the case of a Non-Serviced Mortgage Loan, “Net Insurance Proceeds” under this Agreement shall be limited to any related Insurance
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Proceeds that are received by the Trust Fund in connection with such Non-Serviced Mortgage Loan, pursuant to the allocations set forth in the related Co-Lender Agreement.
“Net Liquidation Proceeds”: The Liquidation Proceeds received with respect to any Mortgage Loan or Serviced Whole Loan (including an REO Mortgage Loan or REO Companion Loan) net of the amount of Liquidation Expenses incurred with respect thereto.
“Net Mortgage Loan Rate”: Except as set forth in the last sentence of this definition, with respect to any Mortgage Loan (including any REO Mortgage Loan), the per annum rate equal to the Mortgage Loan Rate for such Mortgage Loan minus the related Administrative Cost Rate. Notwithstanding the foregoing, if any Mortgage Loan does not accrue interest on the basis of a 360-day year consisting of twelve 30-day months, then, for purposes of calculating Pass-Through Rates and the WAC Rate, the Net Mortgage Loan Rate of such Mortgage Loan for any one-month period preceding a related Due Date shall be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest actually accrued (exclusive of Default Interest and Excess Interest) in respect of such Mortgage Loan during such one-month period at a per annum rate equal to the related Mortgage Loan Rate minus the related Administrative Cost Rate; provided, however, that, for purposes of calculating Pass-Through Rates and the WAC Rate, with respect to each Mortgage Loan that accrues interest on the basis of a 360-day year and the actual number of days during each one-month interest accrual period, (i) the Net Mortgage Loan Rate for the one-month period preceding the Due Dates in January and February in any year which is not a leap year and in February in any year which is a leap year (unless, in either case, the related Distribution Date is the final Distribution Date), shall be determined net of any Withheld Amounts and (ii) the Net Mortgage Loan Rate for the one-month period preceding the Due Date in March shall be determined taking into account the addition of any such Withheld Amounts. Also notwithstanding the foregoing, for purposes of calculating Pass-Through Rates and the WAC Rate, the Net Mortgage Loan Rate of any Mortgage Loan shall be determined without regard to any modification, waiver or amendment of the terms of such Mortgage Loan, whether agreed to by the Special Servicer or an Other Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the related Mortgagor, and without regard to the related Mortgaged Property becoming an REO Property or otherwise.
“Net Operating Income”: With respect to any Mortgaged Property, for any Mortgagor’s fiscal year end, Net Operating Income will be calculated in accordance with the standard definition of “Net Operating Income” approved from time to time endorsed and put forth by CREFC®.
“Net REO Proceeds”: With respect to each REO Property and any related REO Mortgage Loan or REO Companion Loan, REO Proceeds with respect to such REO Property, REO Mortgage Loan or REO Companion Loan (other than the proceeds of a liquidation thereof) net of any insurance premiums, taxes, assessments, ground rents and other costs and expenses permitted to be paid therefrom pursuant to Section 3.16(a) of this Agreement; provided that, in the case of an REO Property that relates to a Non-Serviced Mortgage Loan, “Net REO Proceeds” under this Agreement shall be limited to any REO Proceeds that are received by the
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Trust Fund in connection with such Non-Serviced Mortgage Loan, pursuant to the allocations set forth in the related Co-Lender Agreement.
“New Lease”: Any lease of REO Property entered into on behalf of the Trust Fund, including any lease renewed or extended on behalf of the Trust Fund, if the Trust Fund has the right to renegotiate the terms of such lease.
“Nonrecoverable Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable Property Advance. Workout-Delayed Reimbursement Amounts shall constitute a Nonrecoverable Advance only when the Person making such determination in accordance with the procedures specified in Section 3.20 and Section 4.06, the definition of Nonrecoverable P&I Advance or the definition of Nonrecoverable Property Advance, as applicable, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from late collections or any other recovery on or in respect of the related Mortgage Loan or Serviced Whole Loan or REO Mortgage Loan or REO Whole Loan, or (b) has determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties.
“Nonrecoverable P&I Advance”: With respect to any Mortgage Loan, any P&I Advance previously made or proposed to be made in respect of such Mortgage Loan or a related REO Mortgage Loan by the Master Servicer or the Trustee, which P&I Advance such party or the Special Servicer has determined pursuant to and in accordance with Section 4.06 of this Agreement, would not or will not be ultimately recoverable from late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO Mortgage Loan or any related Subordinate Companion Loan or related REO Companion Loan, as the case may be.
“Nonrecoverable Property Advance”: Any Property Advance (including any Emergency Advance) previously made or proposed to be made in respect of a Mortgage Loan, Whole Loan or REO Property by the Master Servicer, the Special Servicer (with respect to any Emergency Advance) or the Trustee, or in the case of the Non-Serviced Mortgage Loans, any comparable advance made by the Other Master Servicer, Other Special Servicer (with respect to any emergency advance, to the extent applicable) or Other Trustee, which Property Advance (or other comparable advance) such party or the Special Servicer has determined pursuant to and in accordance with Section 3.20 of this Agreement, in accordance with the Servicing Standard (or, with respect to the Trustee, its good faith business judgment), will not be ultimately recoverable from late payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, or any other recovery on or in respect of such Mortgage Loan, Whole Loan or REO Property, as the case may be. Any Property Advance (including any Emergency Advance) that is not required to be repaid by the related Mortgagor under the terms of the related Mortgage Loan Documents shall be deemed to be a Nonrecoverable Advance for purposes of the Master Servicer’s, the Special Servicer’s or the Trustee’s entitlement to reimbursement for such Advance. The determination as to the recoverability of any servicing advance previously made or proposed to be made with respect to any Non-Serviced Mortgage Loan shall be made by the Other Master
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Servicer or Other Special Servicer, as the case may be, pursuant to the Other Pooling and Servicing Agreement, and any such determination so made shall be conclusive and binding upon the Trust and the Certificateholders.
“Non-Book Entry Certificates”: As defined in Section 5.02(c)(iii) of this Agreement.
“Non-Reduced Certificates”: As of any date of determination, any Class of Principal Balance Certificates then outstanding for which (a)(1) the initial Certificate Principal Balance of such Class of Certificates minus (2) the sum (without duplication) of (x) the aggregate payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of such Class of Certificates, (y) any Appraisal Reduction Amounts allocated to such Class of Certificates as of such date of determination and (z) any Realized Losses previously allocated to such Class of Certificates, is equal to or greater than (b) 25% of the remainder of (i) the initial Certificate Principal Balance of such Class of Certificates less (ii) any payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of that Class of Certificates as of such date of determination.
“Non-Serviced Companion Loan”: Each of the Westfield Wheaton Companion Loans, the Soho-Tribeca Grand Hotel Portfolio Companion Loans, the Westfield Trumbull Companion Loans, the WPC Department Store Portfolio Companion Loans (after the WPC Department Store Portfolio Securitization Date) and the Sterling & Milagro Companion Loan, as applicable.
“Non-Serviced Companion Loan Holder”: The holder of a Non-Serviced Companion Loan.
“Non-Serviced Mortgage Loan”: Each of the Westfield Wheaton Mortgage Loan, the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan, the Westfield Trumbull Mortgage Loan, the WPC Department Store Portfolio Mortgage Loan (after the WPC Department Store Portfolio Securitization Date) and the Sterling & Milagro Mortgage Loan, as applicable.
“Non-Serviced Whole Loan”: The Westfield Wheaton Whole Loan, the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the Westfield Trumbull Whole Loan, the WPC Department Store Portfolio Whole Loan (after the WPC Department Store Portfolio Securitization Date) and the Sterling & Milagro Whole Loan, as applicable.
“Non-Serviced Whole Loan Controlling Holder”: The “directing holder” or similarly defined party under an Other Pooling and Servicing Agreement, or, with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder.
“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.03(f) of this Agreement.
“Non-U.S. Tax Person”: A person other than a U.S. Tax Person.
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“Note”: With respect to any Mortgage Loan or Companion Loan as of any date of determination, the note(s) or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Mortgage Loan or Companion Loan, as the case may be, including any amendments or modifications, or any renewal or substitution notes, as of such date.
“Notice of Termination”: Any of the notices given to the Certificate Administrator by the Master Servicer, the Depositor or any Holder of a Class R Certificate pursuant to Section 9.01(c).
“Notional Amount”: For any date of determination, (a) with respect to the Class X-A Certificates, the Class X-A Notional Amount, (b) with respect to the Class X-B Certificates, the Class X-B Notional Amount, (c) with respect to the Class X-D Certificates, the Class X-D Notional Amount, (d) with respect to the Class X-E Certificates, the Class X-E Notional Amount, (e) with respect to the Class X-F Certificates, the Class X-F Notional Amount, (f) with respect to the Class X-NR Certificates, the Class X-NR Notional Amount and (g) with respect to each Component, the applicable Component Notional Amount.
“NRSRO”: A nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act.
“NRSRO Certification”: A certification executed by an NRSRO (other than a Rating Agency) in favor of the Rule 17g-5 Information Provider substantially in the form attached as Exhibit M-5 hereto (which may also be submitted electronically to the Rule 17g-5 Information Provider) that states that (i) such NRSRO has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), (ii) such NRSRO has access to the Rule 17g-5 Information Provider’s Website regarding the Certificates and (iii) such NRSRO shall keep any information obtained from the 17g-5 Information Provider confidential. An NRSRO Certification will be deemed to have been executed by an NRSRO if the Depositor so directs the Rule 17g-5 Information Provider.
“OCC”: The Office of the Comptroller of Currency, and its successors in interest.
“Offering Circular”: The offering circular dated August 10, 2015 relating to the Private Certificates (other than the Class Z Certificates).
“Officer’s Certificate”: With respect to any Person, a certificate signed by an authorized officer of such Person or, in the case of the Master Servicer or the Special Servicer, a Servicing Officer, and delivered to the Depositor, the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer, as the case may be.
“Operating Advisor”: Pentalpha Surveillance LLC, a Delaware limited liability company, or its successor in interest, or any successor Operating Advisor appointed as herein provided.
“Operating Advisor Annual Report”: As defined in Section 3.28(d)(ii) of this Agreement.
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“Operating Advisor Consulting Fee”: A fee for each Major Decision as to which the Operating Advisor has consultation rights equal to the lesser of (a) $10,000, or (b) the amount the related Mortgagor agrees to pay with respect to any Mortgage Loan (or Serviced Whole Loan, if applicable), payable pursuant to Section 3.06(a) and Section 3.06A(a) of this Agreement; provided, however, that no such fee shall be payable unless paid by the related Mortgagor; provided, further, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision; provided, further, that the Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the Master Servicer or the Special Servicer, as applicable, shall consult with the Operating Advisor prior to any such waiver or reduction).
“Operating Advisor Fee”: With respect to each Mortgage Loan (including any Non-Serviced Mortgage Loan) and any Distribution Date, an amount accrued during the related Interest Accrual Period at the applicable Operating Advisor Fee Rate on the Stated Principal Balance of such Mortgage Loan (or such Non-Serviced Mortgage Loan, as applicable) as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan is computed and shall be prorated for partial periods. Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Operating Advisor under this Agreement. For the avoidance of doubt, the Operating Advisor Fee shall be payable from the Lower-Tier REMIC.
“Operating Advisor Fee Rate”: With respect to each Interest Accrual Period, a rate equal to 0.0016% per annum.
“Operating Advisor Surveillance Personnel”: The divisions or personnel of the Operating Advisor who are involved in the performance of the duties of the Operating Advisor under this Agreement.
“Operating Advisor Standard”: As defined in Section 3.28(b) of this Agreement.
“Operating Advisor Termination Event”: As defined in Section 7.06(a) of this Agreement.
“Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be counsel for the Depositor, the Operating Advisor, the Special Servicer or the Master Servicer, as the case may be, reasonably acceptable to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) qualification of a Trust REMIC or the imposition of tax under the REMIC Provisions on any income or property of any such Trust REMIC, (b) compliance with the REMIC Provisions (including application of the definition of “Independent Contractor”), (c) qualification of the Grantor Trust as a grantor trust or (d) a resignation of the Master Servicer or Special Servicer pursuant to Section 6.04, must be an opinion of counsel who is Independent of the Depositor, the Special Servicer and the Master Servicer.
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“Opting-Out Party”: A defined in Section 6.09(h) of this Agreement.
“Original Lower-Tier Principal Balance”: With respect to any Lower-Tier Regular Interest, the initial principal balance thereof as of the Closing Date, in each case as specified in the Preliminary Statement.
“Other 17g-5 Information Provider”: With respect to a Non-Serviced Mortgage Loan or Serviced Companion Loan, as applicable, the 17g-5 information provider under the applicable Other Pooling and Servicing Agreement.
“Other Certificate Administrator”: With respect to a Non-Serviced Mortgage Loan, the certificate administrator under the applicable Other Pooling and Servicing Agreement.
“Other Depositor”: With respect to any Other Securitization Trust, the related “depositor” (within the meaning of Item 1101(e) of Regulation AB) of the related Other Securitization Trust.
“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.
“Other Master Servicer”: With respect to a Non-Serviced Mortgage Loan or Serviced Companion Loan, as applicable, the master servicer under the applicable Other Pooling and Servicing Agreement.
“Other Operating Advisor”: With respect to a Non-Serviced Mortgage Loan, the operating advisor under the applicable Other Pooling and Servicing Agreement.
“Other Paying Agent”: With respect to a Non-Serviced Mortgage Loan or Serviced Companion Loan, as applicable, the paying agent under the applicable Other Pooling and Servicing Agreement.
“Other Pooling and Servicing Agreement”: The pooling and servicing agreement or other comparable agreement governing the creation of any Other Securitization Trust and the issuance of securities backed by the assets of such Other Securitization Trust. With respect to the Non-Serviced Mortgage Loans, the CSAIL 2015-C1 Pooling and Servicing Agreement (with respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan and the Westfield Trumbull Whole Loan), the CSAIL 2015-C2 Pooling and Servicing Agreement (with respect to the Westfield Wheaton Whole Loan and the Sterling & Milagro Whole Loan) and the pooling and servicing agreement governing the WPC Department Store Portfolio Companion Loan designated as Note A-2 (with respect to the WPC Department Store Portfolio Whole Loan, from
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and after the WPC Department Store Portfolio Securitization Date) are “Other Pooling and Servicing Agreements”. In addition, each of the Serviced Companion Loans (or a portion thereof) are expected to be included in future securitizations, for which the related pooling and servicing agreements shall also be Other Pooling and Servicing Agreements.
“Other Securitization Trust”: (a) With respect to a Serviced Mortgage Loan, any “issuing entity” (within the meaning of Item 1101(f) of Regulation AB) that holds a Companion Loan or REO Companion Loan (or any portion thereof or interest therein), as identified in writing to the parties to this Agreement, and (b) with respect to a Non-Serviced Mortgage Loan, the “issuing entity” (within the meaning of Item 1101(f) of Regulation AB) that holds the Companion Loan or REO Companion Loan designated as the controlling note pursuant to the related Co-lender agreement, as identified in writing to the parties to this Agreement.
“Other Special Servicer”: With respect to a Non-Serviced Mortgage Loan or Serviced Companion Loan, as applicable, the special servicer under the applicable Other Pooling and Servicing Agreement.
“Other Trustee”: With respect to a Non-Serviced Mortgage Loan or Serviced Companion Loan, as applicable, the trustee under the applicable Other Pooling and Servicing Agreement.
“Ownership Interest”: Any record or beneficial interest in a Class R Certificate.
“P&I Advance”: As to any Mortgage Loan (including the Non-Serviced Mortgage Loans and any REO Mortgage Loan), any advance made by the Master Servicer or the Trustee pursuant to Section 4.06 of this Agreement. Each reference to the payment or reimbursement of a P&I Advance shall be deemed to include, whether or not specifically referred to but without duplication, payment or reimbursement of interest thereon at the Advance Rate to but excluding the date of payment or reimbursement.
“Pari Passu Companion Loan”: Each of the Charles River Plaza North Pari Passu Companion Loan, Starwood Capital Extended Stay Portfolio Companion Loans, Mall of New Hampshire Companion Loan, Westfield Wheaton Companion Loans, Arizona Grand Resort & Spa Companion Loan, Soho-Tribeca Grand Hotel Portfolio Pari Passu Companion Loans, Westfield Trumbull Companion Loans, WPC Department Store Companion Loans, Sterling & Milagro Companion Loan and Cape May Hotels Companion Loan.
“Pass-Through Rate”: Each of the Class A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class X-A Pass-Through Rate, the Class X-B Pass-Through Rate, the Class X-D Pass-Through Rate, the Class X-E Pass-Through Rate, the Class X-F Pass-Through Rate, the Class X-NR Pass-Through Rate, the Class A-S Pass-Through Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate and the Class NR Pass-Through Rate. The Class Z Certificates and the Class R Certificates do not have Pass-Through Rates.
“Paying Agent”: The paying agent appointed pursuant to Section 5.06 of this Agreement.
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“Penalty Charges”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable (or successor REO Mortgage Loan or successor REO Serviced Companion Loan), any amounts actually collected thereon from the Mortgagor that represent default charges, penalty charges, late fees and/or Default Interest, subject to any allocation provisions of any related Co-Lender Agreement and excluding any amounts allocable to a Serviced Companion Loan pursuant to the related Co-Lender Agreement and excluding any Excess Interest.
“Percentage Interest”: As to any Certificate, the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Regular Certificate, the percentage interest is equal to the initial denomination as of the Closing Date of such Certificate divided by the initial Certificate Principal Balance or Notional Amount, as applicable, of such Class of Certificates. With respect to any Class Z or Class R Certificate, the percentage interest is set forth on the face thereof.
“Performing Party”: As defined in Section 10.11 of this Agreement.
“Permitted Investments”: Any one or more of the following obligations or securities payable on demand or having a scheduled maturity on or before the Business Day preceding the date upon which such funds are required to be drawn (provided that funds invested by the Certificate Administrator in Permitted Investments managed or advised by the Certificate Administrator may (or, as and when contemplated under Section 3.07(c), shall) mature on the Distribution Date) and a maximum maturity of 365 days, regardless of whether issued by the Depositor, the Master Servicer, the Trustee, the Certificate Administrator or any of their respective Affiliates and having at all times the required ratings, if any, provided for in this definition, unless each Rating Agency shall have provided a Rating Agency Confirmation:
(i) obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit
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System (consolidated system-wide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or similar deposits, bankers’ acceptances and repurchase agreements of any bank, (A) if it has a term of three months or less, (1) the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s and (2) the short-term obligations of which are rated in the highest short-term debt rating category of Fitch and KBRA, (B) if it has a term of more than three months and not in excess of six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated at least “Aa3” by Moody’s and (C) if it has a term of more than six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated “Aaa” by Moody’s (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(v) demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, (A) if it has a term of three months or less, (1) the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s and (2) the short-term obligations of which are rated in the highest short-term debt rating category of Fitch and KBRA, (B) if it has a term of more than three months and not in excess of six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated at least “Aa3” by Moody’s and (C) if it has a term of more than six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated “Aaa” by Moody’s (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar amount of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be
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tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(vi) debt obligations of any corporation incorporated under the laws of the United States or any state thereof, (A) if it has a term of three months or less, (1) the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s and (2) the short-term obligations of which are rated in the highest short-term debt rating category of Fitch and KBRA, (B) if it has a term of more than three months and not in excess of six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated at least “Aa3” by Moody’s and (C) if it has a term of more than six months, the short-term obligations of which are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which are rated at least “Aaa” by Moody’s (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(vii) commercial paper of any corporation incorporated under the laws of the United States or any state thereof (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof), (A) if it has a term of less than three months, the short-term obligations of which are rated at least “P-1” by Moody’s or, in the case of Moody’s, the long-term obligations of which are rated at least “A2” by Moody’s, “F1” by Fitch and in the highest short-term debt rating category of KBRA; (B) if it has a term of more than three months and not in excess of six months, (1) the short-term debt obligations of which are rated at least “P-1” by Moody’s and the long-term debt obligations of which are rated at least “Aa3” by Moody’s and (2) the short-term debt obligations of which are rated in the highest short-term rating category by Fitch and KBRA; and (C) if it has a term of more than six months, (1) the short-term debt obligations of which are rated at least “P-1” by Moody’s and the long-term debt obligations of which are rated at least “Aaa” by Moody’s, (2) the short-term debt obligations of which are rated at least “F1+” by Fitch (or “F1” by Fitch, if the long-term debt obligations of which are rated at least “AA-” by Fitch) and (3) the short-term debt obligations of which are rated in the highest short-term rating category by KBRA (or, in the case of any such Rating Agency as set forth in clauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move
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proportionately with that index, and (C) such investments must not be subject to liquidation prior to their maturity;
(viii) the Wells Fargo Advantage Heritage Money Market Fund or any other money market fund (in each case, the “Fund”) so long as the Fund is rated by Moody’s and Fitch in its highest money market fund ratings category (or, if not rated by either such Rating Agency, otherwise acceptable to such Rating Agency, KBRA and Morningstar, as confirmed in a Rating Agency Confirmation);
(ix) any other demand, money market or time deposit, demand obligation or any other obligation, security or investment with respect to which Rating Agency Confirmation has been obtained from each Rating Agency; and
(x) such other demand, money market or time deposit, demand obligation or any other obligation, security or investment that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)–(ix) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, demand obligation or any other obligation, security or investment;
provided, however, that such instrument continues to qualify as a “cash flow investment” pursuant to Code Section 860G(a)(6) earning a passive return in the nature of interest and that no instrument or security shall be a Permitted Investment if (i) such instrument or security evidences a right to receive only interest payments, (ii) the right to receive principal and interest payments derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment, (iii) the rating for such instrument or security includes an “r” designation or (iv) if such instrument may be redeemed at a price below the purchase price; and provided, further, that no amount beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the Master Servicer receives an Opinion of Counsel, at the expense of the party directing such Permitted Investment, to the effect that such investment will not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC. Permitted Investments that are subject to prepayment or call may not be purchased at a price in excess of par.
Notwithstanding the foregoing, to the extent that the Mortgage Loan Documents with respect to a particular Mortgage Loan require the funds in the related Mortgagor Accounts to be invested in investments other than those itemized in clauses (i) through (ix) above, the Master Servicer shall invest the funds in such Mortgagor Accounts in accordance with the terms of the related Mortgage Loan Documents.
For purposes of any condition set forth above, to the effect that any investment or the issuer thereof must have a minimum rating by KBRA, such condition shall be deemed to be waived if such investment or the issuer thereof, as applicable, is not rated by KBRA.
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“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title insurance and/or other insurance commissions and fees, title agency fees and appraisal fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Mortgage Loan, Serviced Whole Loan or REO Property, in each case, in accordance with Article III of this Agreement.
“Permitted Transferee”: With respect to a Class R Certificate, any Person or agent of such Person other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an ownership interest in any Class R Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Disqualified Non-U.S. Tax Person, (d) an entity treated as a U.S. partnership if any of its partners, directly or indirectly (other than through a U.S. corporation) is (or is permitted to be under the partnership agreement) a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to which income from a Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.
“Person”: Any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Plan”: As defined in Section 5.03(m) of this Agreement.
“Prepayment Assumption”: The assumption that there will be zero prepayments with respect to the Mortgage Loans; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.
“Prepayment Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan that was subject to a Principal Prepayment in full or in part during the related Prepayment Period, which Principal Prepayment was applied to such Mortgage Loan after the Due Date in such Prepayment Period, the amount of interest (net of the related Servicing Fee and any related Excess Interest and/or Default Interest) that accrued for such Mortgage Loan on the amount of such Principal Prepayment during the period commencing on the date after such Due Date and ending on the date as of which such Principal Prepayment was applied to the unpaid principal balance of the Mortgage Loan, inclusive, to the extent collected from the related Mortgagor (exclusive of any related Yield Maintenance Charge that may have been collected).
“Prepayment Interest Shortfall”: With respect to any Distribution Date, for each Mortgage Loan that was subject to a Principal Prepayment in full or in part during any Prepayment Period, which Principal Prepayment was applied to such Mortgage Loan prior to the Due Date in such Prepayment Period, the amount of interest (net of the related Servicing Fee and any related Excess Interest and/or Default Interest) to the extent not collected from the related Mortgagor, that would have accrued on such Mortgage Loan on the amount of such Principal Prepayment during the period commencing on the date as of which such Principal Prepayment
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was applied to the unpaid principal balance of the Mortgage Loan and ending on the day immediately preceding such Due Date, inclusive.
“Prepayment Period”: With respect to any Distribution Date, the period beginning the day after the Determination Date in the month immediately preceding the month in which such Distribution Date occurs (or beginning on the day after the Cut-Off Date, in the case of the first Distribution Date) through and including the Determination Date immediately preceding such Distribution Date.
“Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of The Wall Street Journal, Eastern edition (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time. The Certificate Administrator shall notify in writing the Master Servicer with regard to any determination of the Prime Rate in accordance with the parenthetical in the preceding sentence.
“Principal Balance Certificates”: The Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificates.
“Principal Distribution Amount”: For any Distribution Date will be equal to the sum, without duplication, of:
(A) the Scheduled Principal Distribution Amount for such Distribution Date;
(B) the Unscheduled Payments of the Mortgage Loans (including the REO Mortgage Loans) received during the applicable Prepayment Period (or, in the case of the Non-Serviced Mortgage Loans, by the Business Day immediately preceding the related Master Servicer Remittance Date); and
(C) the Principal Shortfall, if any, for such Distribution Date;
provided that the Principal Distribution Amount for any Distribution Date shall be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances (including any servicing advance with respect to a Non-Serviced Mortgage Loan under the related Other Pooling and Servicing Agreement reimbursed out of general collections on the Mortgage Loans) plus interest on such Nonrecoverable Advances that are paid or reimbursed from principal collections on the Mortgage Loans (including the REO Mortgage Loans) in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date and (ii) Workout-Delayed Reimbursement Amounts that were paid or reimbursed from principal collections on the Mortgage Loans (including the REO Mortgage Loans) in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date (provided that, in the case of clause (i) and (ii) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including the REO Mortgage Loans) for a prior Distribution Date are subsequently recovered on the related Mortgage Loan (including an REO Mortgage Loan), such
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recovery will increase the Principal Distribution Amount for the Distribution Date related to the applicable Prepayment Period in which such recovery occurs).
The principal component of the amounts set forth above shall be determined in accordance with Section 1.02 hereof.
“Principal Prepayment”: Any payment of principal made by a Mortgagor on a Mortgage Loan or Serviced Whole Loan which is received in advance of its scheduled Due Date and which is not accompanied by an amount of interest representing the full amount of scheduled interest due on any date or dates in any month or months subsequent to the month of prepayment other than any amount paid in connection with the release of the related Mortgaged Property through defeasance.
“Principal Shortfall”: For any Distribution Date, the amount, if any, by which (i) the Principal Distribution Amount for the preceding Distribution Date exceeds (ii) the aggregate amount actually distributed with respect to principal on the Principal Balance Certificates on such preceding Distribution Date in respect of such Principal Distribution Amount.
“Private Certificates”: The Class X-D, Class X-E, Class X-F, Class X-NR, Class E, Class F, Class NR, Class Z and Class R Certificates.
“Privileged Information”: Any (i) correspondence or other communications between the Controlling Class Representative (and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative)) and the Special Servicer related to any Specially Serviced Loan or the exercise of the consent or consultation rights of the Controlling Class Representative under this Agreement or any related Serviced Companion Loan Holder (or its Companion Loan Holder Representative) under any related Co-Lender Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, and (iii) information subject to attorney-client privilege.
“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is (in the case of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, any affected Companion Loan Holder and the Trustee, as evidenced by an Opinion of Counsel (which shall be an Additional Trust Fund Expense) delivered to each of the Master Servicer, the Special Servicer, the Charles River Plaza North Directing Holder (with respect to the Charles River Plaza North Whole Loan), the WPC Department Store Portfolio Directing Holder (with respect to the WPC Department Store Portfolio Whole Loan, as long as the WPC Department Store Portfolio Whole Loan is a Serviced
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Whole Loan) the Controlling Class Representative, the Operating Advisor, the Certificate Administrator and the Trustee) required by law, rule, regulation, order, judgment or decree to disclose such information.
“Privileged Person”: The Depositor, the Underwriters, the Initial Purchasers, the Master Servicer, the Special Servicer, the Controlling Class Representative (but only for so long as a Consultation Termination Event has not occurred and is not continuing), any Serviced Companion Loan Holder that delivers an Investor Certification, the Trustee, the Certificate Administrator, the Operating Advisor, the Mortgage Loan Sellers, a designee of the Depositor and any Person who provides the Certificate Administrator with an Investor Certification in the form of Exhibit M-1 attached to this Agreement, as the case may be, which Investor Certification may be submitted electronically via the Certificate Administrator’s Website; provided that in no event shall a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of any of the foregoing, a principal, partner, member, joint venture, limited partner, employee, representative, director, advisor or investor in any of the foregoing, or an agent of the foregoing, with respect to its corresponding Mortgage Loan only, be considered a Privileged Person.
“Prohibited Party”: Any proposed Servicing Function Participant that is listed on the Depositor’s Do Not Hire List.
“Property Advance”: As to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Whole Loan or REO Property, any advance made by the Master Servicer, the Special Servicer (with respect to any Emergency Advance) or the Trustee in respect of Property Protection Expenses, together with all other customary, reasonable and necessary “out of pocket” costs and expenses (including attorneys’ fees and fees and expenses of real estate brokers) incurred by the Master Servicer, the Special Servicer or the Trustee in connection with the servicing and administration of a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if a default is imminent thereunder or a default, delinquency or other unanticipated event has occurred with respect thereto, or in connection with the administration of any REO Property, including, but not limited to, the cost of (a) compliance with the obligations of the Master Servicer, the Special Servicer or the Trustee, if any, set forth in Section 2.03, Section 3.04 and Section 3.07 of this Agreement, (b) the preservation, insurance, restoration, protection and management of a Mortgaged Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures, (e) any Appraisal or any other appraisal or update thereof expressly permitted or required to be obtained hereunder and (f) the operation, management, maintenance and liquidation of any REO Property; provided that, notwithstanding anything to the contrary, “Property Advances” shall not include allocable overhead of the Master Servicer, the Special Servicer or the Trustee, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses, or costs and expenses incurred by any such party in connection with its purchase of any Mortgage Loan or REO Property pursuant to any provision of this Agreement, or an intercreditor agreement. Each reference to the payment or reimbursement of a Property Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate from and including the date of the making of such Advance to but excluding the date of payment or reimbursement.
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“Property Protection Expenses”: Any costs and expenses incurred by the Master Servicer, the Special Servicer or the Trustee pursuant to Section 3.04, Section 3.07, Section 3.10(f), Section 3.10(g) and Section 3.17(b) or indicated herein as being a cost or expense of the Lower-Tier REMIC to be advanced by the Master Servicer or the Trustee, as applicable.
“Prospectus”: The prospectus dated March 3, 2015, as supplemented by the Prospectus Supplement relating to the Public Certificates.
“Prospectus Supplement”: The prospectus supplement dated August 10, 2015, relating to the Public Certificates.
“Public Certificate”: Each of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A Class X-B, Class A-S, Class B, Class C and Class D Certificates.
“Public Documents”: As defined in Section 4.02(a) of this Agreement.
“Purchase Price”: With respect to any Mortgage Loan (or REO Property), a price equal to the following: (a) the outstanding principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date of purchase; plus (b) all accrued and unpaid interest on the principal balance of such Mortgage Loan (or the related REO Mortgage Loan), other than Excess Interest or Default Interest, at the related Mortgage Loan Rate in effect from time to time through the Due Date in the Collection Period of purchase; plus (c) all related unreimbursed Property Advances (including any Property Advances and Advance Interest Amounts that were reimbursed out of general collections on the Mortgage Loans) (or, in the case of any Non-Serviced Mortgage Loan, the pro rata portion of any comparable amounts allocable to such Mortgage Loan and payable with respect thereto pursuant to the related Co-Lender Agreement); plus (d) all accrued and unpaid Advance Interest Amounts in respect of related Advances (or, in the case of any Non-Serviced Mortgage Loan, all comparable amounts with respect to P&I Advances related to such Non-Serviced Mortgage Loan and, with respect to outstanding Property Advances, the pro rata portion of any comparable amounts payable with respect thereto pursuant to the related Co-Lender Agreement); plus (e) any unpaid Special Servicing Fees and any other unpaid Additional Trust Fund Expenses outstanding or previously incurred in respect of the related Mortgage Loan (or, in the case of any Non-Serviced Mortgage Loan, the pro rata portion of any comparable amounts allocable to such Mortgage Loan and payable with respect thereto pursuant to the related Co-Lender Agreement); plus (f) if such Mortgage Loan is being purchased by a Mortgage Loan Seller pursuant to Section 6 of the related Loan Purchase Agreement, all expenses incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the Breach or Document Defect giving rise to the repurchase or substitution obligation (to the extent not otherwise included in the amount described in clause (c) above) and, if the applicable Mortgage Loan Seller repurchases or substitutes for such Mortgage Loan more than 180 days following the earlier of the responsible party’s discovery or receipt of notice of the subject Material Breach or Material Document Defect, as the case may be, a Liquidation Fee. With respect to any REO Property that relates to a Serviced Whole Loan, the Purchase Price for the Trust Fund’s interest in such REO Property shall be the amount calculated in accordance with the first sentence of this definition in respect of the related REO Mortgage Loan and, solely for purposes of calculating fair prices under the fourth to last sentence of Section 3.17(k) of this Agreement, such amount
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shall be calculated as if the REO Mortgage Loan consisted of the REO Mortgage Loan and the related REO Companion Loan, if applicable.
“Qualified Bidder”: As defined in Section 7.01(b) of this Agreement.
“Qualified Institutional Buyer”: A “qualified institutional buyer” within the meaning of Rule 144A.
“Qualified Insurer”: As used in Section 3.08 and Section 5.08, in the case of (i) all policies not referred to in clause (ii) below, an insurance company or security or bonding company qualified to write the related insurance policy in the relevant jurisdiction and whose claims paying ability is rated at least “A3” by Moody’s (or, if not rated by Moody’s, an equivalent rating such as that listed below by at least two NRSROs (which may include S&P, Fitch, KBRA, Morningstar and/or A.M. Best)) and at least “A” by Fitch (or, if not rated by Fitch, an equivalent rating such as that listed below by at least two NRSROs (which may include S&P, Morningstar, Moody’s, KBRA and/or A.M. Best)), (ii) in the case of the fidelity bond and the errors and omissions insurance required to be maintained pursuant to Section 3.08(c) of this Agreement, a company that shall have a claim paying ability rated at least as follows by at least one of the following NRSROs: “A (low)” by DBRS (or, if not rated by DBRS, an equivalent rating such as that listed above by at least two NRSROs (which may include S&P, KBRA, Fitch and/or AM Best)), “A-” by S&P, “A-” by Fitch, “A3” by Moody’s or “A:X” by A.M. Best, or (iii) in either case, an insurance company not satisfying the ratings criteria of any Rating Agency set forth in clause (i) or (ii), as applicable, but with respect to which the Master Servicer or the Special Servicer, as applicable, has received a Rating Agency Confirmation from such Rating Agency and Morningstar. “Qualified Insurer” shall also mean any entity that satisfies all of the criteria, other than the ratings criteria, set forth in one of the foregoing clauses and whose obligations under the related insurance policy are guaranteed or backed by an entity that satisfies the ratings criteria set forth in such clause (construed as if such entity were an insurance company referred to therein).
“Qualified Mortgage”: A Mortgage Loan that is a “qualified mortgage” within the meaning of Code Section 860G(a)(3) (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective obligation as a qualified mortgage, or any substantially similar successor provision).
“Qualified Substitute Mortgage Loan”: A mortgage loan that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a Mortgage Loan Rate not less than the Mortgage Loan Rate of the deleted Mortgage Loan; (iii) have the same Due Date as and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than two years less than, the remaining term to stated maturity of the deleted Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of (a) the loan-to-value ratio of the deleted Mortgage Loan as of the Cut-Off Date and
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(b) 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply (except in a manner that would not be adverse to the interests of the Certificateholders) as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property that will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to the greater of (a) the debt service coverage ratio of the deleted Mortgage Loan as of the Closing Date and (b) 1.25x; (x) constitute a “qualified replacement mortgage” within the meaning of Code Section 860G(a)(4) as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization schedule that extends to a date that is after the date that is three years prior to the Rated Final Distribution Date; (xii) have prepayment restrictions comparable to those of the deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan unless the Trustee and the Certificate Administrator have received a prior Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved, so long as a Consultation Termination Event has not occurred and is not continuing, by the Controlling Class Representative; (xv) prohibit defeasance within two years of the Closing Date; (xvi) not be substituted for a deleted Mortgage Loan if it would result in the termination of the REMIC status of a Trust REMIC or the imposition of tax on a Trust REMIC other than a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel; (xvii) have an engineering report with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. In the event that more than one mortgage loan is substituted for a deleted Mortgage Loan or Mortgage Loans, then the amounts described in clause (i) above shall be determined on the basis of aggregate principal balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through (xviii) above; provided that the rates described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Loan Rate (net of the Administrative Cost Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on or subject to a cap equal to, the WAC Rate) of any Class of Principal Balance Certificates having a Certificate Principal Balance then-outstanding. When one or more Qualified Substitute Mortgage Loans are substituted for a deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the replacement mortgage loan(s) meet(s) all of the requirements of the above definition and shall send such certification to the Certificate Administrator and the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
“Rated Final Distribution Date”: The Distribution Date occurring in August 2048.
“Rating Agency”: Each of Moody’s, Fitch, KBRA and Morningstar or their successors in interest. If no such rating agency nor any successor thereof remains in existence, “Rating Agency” shall be deemed to refer to such nationally recognized statistical rating organization or other comparable Person reasonably designated by the Depositor, notice of
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which designation shall be given to the Trustee, the Certificate Administrator and the Master Servicer, and specific ratings of Moody’s, Fitch, KBRA and Morningstar herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated. References herein to the highest long-term unsecured debt rating category of Moody’s, Fitch, KBRA or Morningstar shall mean “Aaa” with respect to Moody’s, “AAA” with respect to Fitch, KBRA and Morningstar, and, in the case of any other rating agency, shall mean such highest rating category or better without regard to any plus or minus or numerical qualification.
“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency); provided that upon receipt of a written waiver or other acknowledgment from any applicable Rating Agency indicating its decision not to review or declining to review the matter for which the Rating Agency Confirmation is sought (such written notice, a “Rating Agency Declination”), or as otherwise provided in Section 3.29 of this Agreement, the requirement for the Rating Agency Confirmation from the applicable Rating Agency with respect to such matter shall not apply.
“Rating Agency Declination”: As defined in the definition of “Rating Agency Confirmation” in this Agreement.
“Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (A) the aggregate Certificate Principal Balance of all Classes of Principal Balance Certificates, after giving effect to distributions made on such Distribution Date exceeds (B) the aggregate Stated Principal Balance of the Mortgage Loans (including any REO Mortgage Loans) after giving effect to any and all reductions in such aggregate Stated Principal Balance on such Distribution Date (for purposes of this calculation only, not giving effect to any reductions of such aggregate Stated Principal Balance for principal payments received on the Mortgage Loans that were used to reimburse the Master Servicer or the Trustee from general collections of principal on the Mortgage Loans for Workout-Delayed Reimbursement Amounts, to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances). The allocation of Realized Losses may be reversed as provided in Section 4.01(f) of this Agreement.
“Record Date”: With respect to each Distribution Date and each Class of Certificates, the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day.
“Registered Rating Agency”: (a) Any Rating Agency that has registered as a user of the Rule 17g-5 Information Provider’s Website; or (b) any NRSRO other than the Rating Agencies (i) that has registered as a user of the Rule 17g-5 Information Provider’s Website and (ii) with respect to which the Rule 17g-5 Information Provider has received an NRSRO Certification pursuant to Section 11.13(h) of this Agreement.
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“Regular Certificates”: The Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificates.
“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended and are in effect from time to time, but only to the extent compliance is required as of the applicable date of determination, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
“Regulation S”: Regulation S under the Securities Act.
“Regulation S Global Certificates”: As defined in Section 5.02(c)(i) of this Agreement.
“Regulation S Investor”: With respect to a transferee of a Regulation S Global Certificate, a transferee that acquires such Certificate pursuant to Regulation S.
“Relevant Servicing Criteria”: The Servicing Criteria applicable to a specific party, as set forth on Exhibit T to this Agreement. For clarification purposes, multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer or the Certificate Administrator, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer or the Certificate Administrator.
“Remaining Certificateholder”: Any Holder (or Holders provided they act in unanimity) holding 100% of the Regular Certificates or an assignment of the voting rights thereof; provided, however, that the Certificate Principal Balances of the Class A, Class A-S, Class B, Class C, Class D and Class E Certificates have been reduced to zero.
“REMIC”: A “real estate mortgage investment conduit” within the meaning of Code Section 860D.
“REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Section 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“Rents from Real Property”: With respect to any REO Property, gross income of the character described in Code Section 856(d), which income, subject to the terms and conditions of that Section of the Code in its present form, does not include:
(1) except as provided in Code Section 856(d)(4) or (6), any amount received or accrued, directly or indirectly, with respect to such REO Property, if the determination of such amount depends in whole or in part on the income or profits derived by any
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Person from such property (unless such amount is a fixed percentage or percentages of receipts or sales and otherwise constitutes Rents from Real Property);
(2) any amount received or accrued, directly or indirectly, from any Person if the Trust Fund owns directly or indirectly (including by attribution) a ten percent or greater interest in such Person determined in accordance with Code Sections 856(d)(2)(B) and (d)(5);
(3) any amount received or accrued, directly or indirectly, with respect to such REO Property if any Person Directly Operates such REO Property;
(4) any amount charged for services that are not customarily furnished in connection with the rental of property to tenants in buildings of a similar class in the same geographic market as such REO Property within the meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such charges are separately stated); and
(5) rent attributable to personal property unless such personal property is leased under, or in connection with, the lease of such REO Property and, for any taxable year of the Trust Fund, such rent is no greater than 15 percent of the total rent received or accrued under, or in connection with, the lease.
“REO Account”: A segregated custodial account or accounts created and maintained by the Special Servicer pursuant to Section 3.16 of this Agreement on behalf of the Trustee for the benefit of the Certificateholders and the related Companion Loan Holders, which (subject to any changes in the identities of the Special Servicer or the Trustee) shall be entitled “Rialto Capital Advisors, LLC [or the applicable successor Special Servicer], as Special Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 and the related Companion Loan Holder REO Account, as their interests may appear.” Any such account or accounts shall be an Eligible Account.
“REO Companion Loan”: Any Companion Loan as to which the related Mortgaged Property has become an REO Property.
“REO Extension”: As defined in Section 3.16(a) of this Agreement.
“REO Mortgage Loan”: Any Mortgage Loan as to which the related Mortgaged Property has become an REO Property or a beneficial interest in the related Mortgaged Property acquired upon a foreclosure or deed-in-lieu of foreclosure of any Non-Serviced Mortgage Loan under the applicable Other Pooling and Servicing Agreement.
“REO Proceeds”: With respect to any REO Property and the related REO Mortgage Loan and REO Companion Loan, all revenues and proceeds received by the Special Servicer with respect to such REO Property, REO Mortgage Loan or REO Companion Loan which do not constitute Liquidation Proceeds.
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“REO Property”: A Mortgaged Property title to which has been acquired on behalf of the Trust Fund and any related Companion Loan Holder through foreclosure, deed in lieu of foreclosure or otherwise; provided that a Mortgaged Property that secures a Non-Serviced Mortgage Loan shall constitute an REO Property if and when it is acquired under the applicable Other Pooling and Servicing Agreement on behalf of the Trustee for the benefit of the Trust Fund as the holder of such Non-Serviced Mortgage Loan and of the related Companion Loan Holder(s) through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law in connection with a default or imminent default of such Non-Serviced Mortgage Loan.
“REO Serviced Companion Loan”: Any Serviced Companion Loan as to which the related Mortgaged Property has become an REO Property.
“REO Whole Loan”: Any Whole Loan as to which the related Mortgaged Property has become an REO Property.
“Reportable Event”: As defined in Section 10.06 of this Agreement.
“Reporting Requirements”: As defined in Section 10.11.
“Reporting Servicer”: As defined in Section 10.08 of this Agreement.
“Repurchase Communication”: For purposes of Section 2.03(a) and Section 3.01(c) of this Agreement only, any communication, whether oral or written, which need not be in any specific form.
“Repurchase Request”: As defined in Section 2.03(a) of this Agreement.
“Repurchase Request Rejection”: As defined in Section 2.03(a) of this Agreement.
“Repurchase Request Withdrawal”: As defined in Section 2.03(a) of this Agreement.
“Request for Release”: A request for a release signed by a Servicing Officer, substantially in the form of Exhibit C hereto.
“Requesting Holders”: As defined in Section 3.10(a) of this Agreement.
“Requesting Party”: As defined in Section 3.29(a) of this Agreement.
“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.
“Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee (and, in the event that the Trustee is the Certificate Registrar or the Paying Agent, of the Certificate Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust Office with direct responsibility for the
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administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject. When used with respect to any Certificate Registrar (other than the Trustee or the Certificate Administrator), any officer or assistant officer thereof.
“Restricted Party”: As defined in the definition of “Privileged Information Exception” in this Agreement.
“Restricted Period”: As defined in Section 5.02(c)(i) of this Agreement.
“Review Package”: A package of documents consisting of a memorandum outlining the analysis and recommendation (in accordance with the Servicing Standard) of the Master Servicer or the Special Servicer, as the case may be, with respect to the matters that are the subject thereof, and copies of all relevant documentation.
“Revised Rate”: With respect to any ARD Loan, the increased interest rate after the Anticipated Repayment Date (in the absence of a default) for such ARD Loan, as calculated and as set forth in the related Loan Agreement.
“Rule 144A”: Rule 144A under the Securities Act.
“Rule 144A Global Certificates”: As defined in Section 5.02(c)(ii) of this Agreement.
“Rule 15Ga-1”: Rule 15Ga-1 under the Exchange Act.
“Rule 17g-5”: Rule 17g-5 under the Exchange Act.
“Rule 17g-5 Information Provider”: The Certificate Administrator acting in such capacity under this Agreement.
“Rule 17g-5 Information Provider’s Website”: The website established and maintained by the Rule 17g-5 Information Provider pursuant to Section 11.06 and Section 11.13 of this Agreement, initially located at www.ctslink.com, under the “NRSRO” tab for the related transaction.
“S&P”: Standard & Poor’s Ratings Services, and its successors in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings (as reasonably determined by the Depositor) of the party so designated.
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“Sarbanes-Oxley Act”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).
“Sarbanes-Oxley Certification”: As defined in Section 10.04 of this Agreement.
“Scheduled Principal Distribution Amount”: For any Distribution Date will be equal to the sum, without duplication, of:
(A) the principal component of all scheduled Monthly Payments and Balloon Payments which became due on the related Due Date in the related Collection Period (if received by the Master Servicer by the Business Day prior to the Master Servicer Remittance Date or (except in the case of Balloon Payments) advanced by the Master Servicer or the Trustee in respect of such Distribution Date); and
(B) the principal component of any payment on any Mortgage Loan (including an REO Mortgage Loan) received or applied on or after the date on which such payment was due on deposit in the Collection Account as of the related Determination Date (or, in the case of the Non-Serviced Mortgage Loans, by the Business Day immediately preceding the related Master Servicer Remittance Date), net of the principal portion of any unreimbursed P&I Advances related to such Mortgage Loan.
“Securities Act”: The Securities Act of 1933, as it may be amended from time to time and the rules and regulations thereunder.
“Service(s)” or “Servicing”: In accordance with Regulation AB, the act of servicing and administering the Mortgage Loans or any other assets of the Trust by an entity (other than the Certificate Administrator and the Trustee) that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities market.
“Serviced Companion Loan”: Each of the Charles River Plaza North Companion Loans, the Starwood Capital Extended Stay Portfolio Companion Loans, the Mall of New Hampshire Companion Loan, the Arizona Grand Resort & Spa Companion Loan and the Cape May Hotels Companion Loan. In addition, prior to the WPC Department Store Portfolio Securitization Date, each WPC Department Store Portfolio Companion Loan will be a Serviced Companion Loan.
“Serviced Companion Loan Holder”: A holder of a Serviced Companion Loan.
“Serviced Companion Loan Securities”: Any commercial mortgage-backed securities that evidence an interest in or are secured by the assets of an Other Securitization Trust, which assets include a Companion Loan that is part of a Serviced Whole Loan (or a portion thereof or interest therein).
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“Serviced Whole Loan”: Any mortgage loan serviced under this Agreement that is divided into one or more notes, which includes a mortgage note that is included in the Trust and one or more pari passu or subordinate mortgage notes not included in the Trust. Each of the Charles River Plaza North Whole Loan, the Starwood Capital Extended Stay Portfolio Whole Loan, the Mall of New Hampshire Whole Loan, the Arizona Grand Resort & Spa Whole Loan and the Cape May Hotels Whole Loan shall be a Serviced Whole Loan. In addition, prior to the WPC Department Store Portfolio Securitization Date, the WPC Department Store Portfolio Whole Loan shall be a Serviced Whole Loan (and shall include any successor REO Whole Loan).
“Serviced Whole Loan Custodial Account”: With respect to any Serviced Whole Loan, the respective segregated account or sub-account created and maintained by the Master Servicer pursuant to Section 3.05A of this Agreement on behalf of the holders of such Serviced Whole Loan, which (subject to any changes in the identities of the Master Servicer or the Trustee) shall be entitled “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, and the related Companion Loan Holder, as their interests may appear.”
“Serviced Whole Loan Special Servicer”: Any Person responsible for performing the duties of a special servicer hereunder with respect to any Serviced Whole Loan or any related REO Property.
“Servicer”: As defined in Section 10.01(c) of this Agreement.
“Servicer Indemnified Party”: As defined in Section 8.05(c) of this Agreement.
“Servicer Termination Event”: As defined in Section 7.01 of this Agreement.
“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.
“Servicing Fee”: With respect to each Mortgage Loan or Serviced Companion Loan (including if it is or is part of a Specially Serviced Loan) or any successor REO Mortgage Loan or successor REO Serviced Companion Loan (other than any interest in REO Property acquired with respect to any Non-Serviced Whole Loan) and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the related Servicing Fee Rate on the Stated Principal Balance of such Mortgage Loan or such Serviced Companion Loan, as the case may be, as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan or Serviced Whole Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, notwithstanding Section 3.05 or Section 3.12 of this Agreement, (1) the Servicing Fee shall be payable from the Lower-Tier REMIC and (2) the portion thereof payable with respect to each Non-Serviced Mortgage Loan to an Other Master Servicer shall be paid under the applicable Other Pooling and Servicing Agreement, shall not be payable to the
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Master Servicer and will previously have been deducted by an Other Master Servicer prior to remittance to the Trust and shall not be withdrawn from the Collection Account.
“Servicing Fee Rate”: With respect to each Mortgage Loan (including any Non-Serviced Mortgage Loan) (or any successor REO Mortgage Loan with respect thereto), the per annum rate set forth on the Mortgage Loan Schedule and, (i) with respect to the Charles River Plaza North Companion Loans (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum, (ii) with respect to the Starwood Capital Extended Stay Portfolio Companion Loans (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum, (iii) with respect to the Mall of New Hampshire Companion Loan (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum, (iv) with respect to the Arizona Grand Resort & Spa Companion Loan (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum, (v) with respect to the WPC Department Store Portfolio Companion Loans (prior to the WPC Department Store Companion Loan Securitization Date) (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum, and (vi) with respect to the Cape May Hotels Companion Loan (or any successor REO Companion Loan with respect thereto), 0.00250% (0.25 basis points) per annum; provided that, for the avoidance of doubt, with respect to each of the Westfield Wheaton Mortgage Loan, the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan, the Westfield Trumbull Mortgage Loan, the WPC Department Store Portfolio Mortgage Loan (following the occurrence of the WPC Department Store Portfolio Companion Loan Securitization Date) and the Sterling and Milagro Mortgage Loan a portion of the Servicing Fee computed at a per annum rate of 0.0025% (0.25 basis points) shall be payable to the related Other Master Servicer, and (1) for the purposes of computing the Servicing Fee payable to the Master Servicer in respect of such Mortgage Loans hereunder, the Servicing Fee Rate with respect to such Mortgage Loans shall be deemed to be a per annum rate equal 0.0025% (0.25 basis points) and (2) for the purposes of computing the Administrative Cost Rate, the Servicing Fee Rate with respect to such Mortgage Loans shall be deemed to a per annum rate equal 0.005% (0.5 basis points).
“Servicing File”: Any documents (other than documents required to be part of the related Mortgage File but including copies of such documents required to be part of the related Mortgage File) related to the origination or the servicing of the Mortgage Loans or Companion Loans that are in the possession of or under the control of the applicable Mortgage Loan Seller, including but not limited to appraisals, environmental reports, engineering reports, legal opinions, and the applicable Mortgage Loan Seller’s asset summary, delivered to the Master Servicer or the Special Servicer; provided that no information that is proprietary to the related Mortgage Loan Seller nor any draft documents, privileged or internal communications, credit underwriting, due diligence analysis or data shall be required to be delivered as part of the Servicing File. Notwithstanding anything to the contrary contained herein, with respect to each Non-Serviced Mortgage Loan, the Servicing File shall consist of a copy of each Servicing File delivered under the applicable Other Pooling and Servicing Agreement.
“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than the Certificate Administrator, the Operating Advisor, the Master Servicer, the Special Servicer and the Trustee, that is performing activities with respect to the Trust Fund that address the Servicing Criteria, unless such Person’s activities
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relate only to 5% or less of the Mortgage Loans by unpaid principal balance calculated in accordance with the provisions of Regulation AB.
“Servicing Officer”: Any officer or employee of the Master Servicer or the Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans and the Serviced Companion Loans or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee, the Operating Advisor and the Certificate Administrator by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.
“Servicing Standard”: With respect to the Master Servicer or the Special Servicer, to service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans), the Serviced Whole Loans and each REO Property (other than any interest in REO Property acquired with respect to any Non-Serviced Whole Loan) that such party is obligated to service and administer pursuant to this Agreement on behalf of the Trust Fund and the Trustee (as trustee for Certificateholders or, with respect to each Serviced Whole Loan, on behalf of the Certificateholders and the Serviced Companion Loan Holder(s), as a collective whole as if such Certificateholders or, with respect to any Serviced Whole Loan, such Certificateholders and the related Serviced Companion Loan Holder(s), constituted a single lender) as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be: (i) in accordance with the higher of the following standards of care: (A) with the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers comparable mortgage loans with similar borrowers and comparable REO properties for other third-party portfolios (giving due consideration to the customary and usual standards of practice of prudent institutional commercial mortgage lenders servicing their own mortgage loans and REO properties), and (B) with the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers comparable mortgage loans and REO properties owned by the Master Servicer or the Special Servicer, as the case may be, and in either case, exercising reasonable business judgment and acting in accordance with applicable law, the terms of this Agreement and the terms of the respective Mortgage Loan or Serviced Whole Loan; (ii) with a view to: the timely recovery of all payments of principal and interest, including Balloon Payments, under the Mortgage Loans and Serviced Whole Loans or, in the case of (1) a Specially Serviced Loan or (2) a Mortgage Loan or Serviced Whole Loan as to which the related Mortgaged Property is an REO Property, the maximization of recovery of principal and interest on the Mortgage Loan (or Serviced Whole Loan) to the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (or, if any Companion Loan is involved, with a view to the maximization of recovery of principal and interest on such Serviced Whole Loan to the Certificateholders and the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and Serviced Companion Loan Holder(s) constituted a single lender) (and, with respect to the Charles River Plaza North Whole Loan, taking into account the subordinate nature of the Charles River Plaza North Subordinate Companion Loan)) of principal and interest, including Balloon Payments, on a present value basis (the relevant discounting of anticipated collections that will be distributable to the
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Certificateholders (or, in the case of any Serviced Whole Loan, to the Certificateholders and the related Companion Loan Holder) to be performed at the Calculation Rate); and (iii) without regard to (A) any relationship, including as lender on any other debt, that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof, may have with any of the related Mortgagors, or any Affiliate thereof, or any other party to this Agreement; (B) the ownership of any Certificate (or any Serviced Companion Loan or other indebtedness secured by the related Mortgaged Property or any security backed by a Companion Loan) by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof; (C) the obligation of the Master Servicer to make Advances; (D) the right of the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof, to receive compensation or reimbursement of costs hereunder generally or with respect to any particular transaction; and (E) the ownership, servicing or management for others of any other mortgage loan or real property not subject to this Agreement by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof; provided that the foregoing standards shall apply with respect to a Non-Serviced Mortgage Loan and any related REO Property only to the extent that the Master Servicer or the Special Servicer has any express duties or rights to grant consent with respect thereto pursuant to this Agreement.
“Servicing Transfer Event”: With respect to any Mortgage Loan or any Serviced Whole Loan, the occurrence of any of the events described in clauses (a) through (g) of the definition of “Specially Serviced Loan”.
“Significant Obligor”: Any “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to the Trust as of the Closing Date. For the avoidance of doubt, there are no Significant Obligors relating to the Trust.
“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is fifteen (15) days after the Distribution Date occurring on or immediately following the 45th day after the end of such calendar quarter.
“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the 90th day after the end of such calendar year.
“Similar Law”: As defined in Section 5.03(m) of this Agreement.
“Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement”: With respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the related co-lender agreement, dated as of March 3, 2015, by and between the holder of the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and the Soho-Tribeca Grand Hotel Portfolio Companion Loan Holders, relating to the relative rights of the holder of the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and the Soho-Tribeca Grand Hotel Portfolio Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
“Soho-Tribeca Grand Hotel Portfolio Companion Loan Holder”: A holder of a Soho-Tribeca Grand Hotel Portfolio Companion Loans.
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“Soho-Tribeca Grand Hotel Portfolio Companion Loans”: With respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the related promissory notes made by the related Mortgagor and secured by the Soho-Tribeca Grand Hotel Portfolio Mortgage and designated as (a) promissory notes A-1 and A-2 (which are not included in the Trust and are pari passu in right in payment with the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan) and (b) promissory note B (which is not included in the Trust and is subordinate in right of payment to the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and to promissory notes A-1 and A-2), each to the extent set forth in the related Mortgage Loan Documents and as provided in the related Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement.
“Soho-Tribeca Grand Hotel Portfolio Mortgage”: The Mortgage securing the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and the Soho-Tribeca Grand Hotel Portfolio Companion Loans.
“Soho-Tribeca Grand Hotel Portfolio Mortgage Loan”: With respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Soho-Tribeca Grand Hotel Portfolio, which is evidenced by promissory note A-3 and is pari passu in right of payment with the Soho-Tribeca Grand Hotel Portfolio Pari Passu Companion Loan and senior in right of payment to the Soho-Tribeca Grand Hotel Portfolio Subordinate Companion Loan, to the extent set forth in the related Mortgage Loan Documents and as provided in the related Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement. The Soho-Tribeca Grand Hotel Portfolio Mortgage Loan is a “Non-Serviced Mortgage Loan” and will be serviced pursuant to the CSAIL 2015-C1 Pooling and Servicing Agreement.
“Soho-Tribeca Grand Hotel Portfolio Pari Passu Companion Loans”: With respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the related promissory notes identified as A-1 and A-2, which are pari passu to the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan, and which, together with the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan, are senior in right of payment to the Soho-Tribeca Grand Hotel Portfolio Subordinate Companion Loan, to the extent set forth in the related Mortgage Loan Documents and as provided in the related Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement.
“Soho-Tribeca Grand Hotel Portfolio Subordinate Companion Loan”: With respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the related promissory note identified as B, which is subordinate in right of payment to the Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and the Soho-Tribeca Grand Hotel Portfolio Pari Passu Companion Loan, to the extent set forth in the related Mortgage Loan Documents and as provided in the related Soho-Tribeca Grand Hotel Portfolio Co-Lender Agreement.
“Soho-Tribeca Grand Hotel Portfolio Whole Loan”: The Soho-Tribeca Grand Hotel Portfolio Mortgage Loan, together with the Soho-Tribeca Grand Hotel Portfolio Companion Loans, each of which is secured by the Soho-Tribeca Grand Hotel Portfolio Mortgage. References herein to the Soho-Tribeca Grand Hotel Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Soho-Tribeca Grand Hotel Portfolio Mortgage.
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“Special Notice”: Any (a) notice transmitted to Certificateholders pursuant to Section 5.07(c) of this Agreement, (b) notice of any request by at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer pursuant to Section 6.08(a) of this Agreement and (c) notice of any request by at least 15% of the Voting Rights of the Non-Reduced Certificates to terminate and replace the Operating Advisor pursuant to Section 7.06(b) of this Agreement.
“Special Servicer”: Rialto Capital Advisors, LLC, a Delaware limited liability company, and its successor in interest, or any successor Special Servicer appointed as provided herein.
“Special Servicer Decision”: Collectively:
(a) approving leases, lease modifications or amendments or any requests for subordination non-disturbance and attornment agreements or other similar agreements for leases in excess of the lesser of 30,000 square feet and 30% of the net rentable area of the related Mortgaged Property, so long as it is considered a “major lease” or otherwise reviewable by the lender under the related Mortgage Loan Documents;
(b) approving any waiver regarding the receipt of financial statements (other than immaterial timing waivers);
(c) approving annual budgets for the related Mortgaged Property with increases (in excess of 10%) in operating expenses or payments to affiliates of the related Mortgagor (excluding affiliated managers paid at fee rates agreed to at the origination of the related Mortgage Loan (excluding any Non-Serviced Mortgage Loans) or Serviced Whole Loan);
(d) agreeing to any modification, waiver, consent or amendment of the related Mortgage Loan (other than Non-Serviced Mortgage Loans) or Serviced Whole Loan in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (i) a waiver of a Mortgage Loan event of default, (ii) a modification of the type of defeasance collateral required under the related Mortgage Loan Documents such that defeasance collateral other than direct, non-callable obligations of the United States of America would be permitted or (iii) a modification that would permit a principal prepayment instead of defeasance if the related Mortgage Loan Documents do not otherwise permit such principal prepayment; provided that the foregoing is not otherwise a Major Decision;
(e) any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit held as “performance”, “earn-out”, “holdback” or similar escrows or reserves with respect to any of the Mortgage Loans or Serviced Whole Loans, but excluding (subject to clause (f) below), as to Mortgage Loans and Serviced Whole Loans which are non-Specially Serviced Loans, any routine and/or customary escrow and reserve fundings or disbursements for which the satisfaction of performance-related criteria or lender discretion is not required or permitted pursuant to the terms of the related loan documents (for the avoidance of doubt, other than as set forth in clause (f) below, any request with respect to a Mortgage Loan or Serviced Whole Loan that is a non-Specially Serviced Loan for the funding or
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disbursement of ordinary course impounds, repair and replacement reserves, lender approved budget and operating expenses, and tenant improvements pursuant to an approved lease, each in accordance with the loan documents or any other funding or disbursement as mutually agreed upon by the Master Servicer and Special Servicer, will not constitute a Special Servicer Decision;
(f) any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit in the case of certain Mortgage Loans (but excluding Non-Serviced Whole Loans) whose escrows, reserves, holdbacks and related letters of credit exceed, in the aggregate (but excluding tax and insurance escrows), at the related origination date, 10% of the initial principal balance of such Mortgage Loan (which Mortgage Loans are identified on Exhibit FF to this Agreement), except for the routine funding of tax payments and insurance premiums when due and payable (provided the Mortgage Loan is not a Specially Serviced Mortgage Loan);
(g) in circumstances where no lender discretion is permitted other than confirming that the conditions in the related Mortgage Loan Documents have been satisfied (including determining whether any applicable terms or tests are satisfied), any request to incur additional debt in accordance with the terms of the related Mortgage Loan Documents;
(h) in circumstances where no lender discretion is required other than confirming the satisfaction of the applicable terms of the Loan Documents (including determining whether any applicable terms or tests are satisfied), processing requests for any release of collateral or any acceptance of substitute or additional collateral for a Mortgage Loan; provided that, in any case, Special Servicer Decisions will not include (i) the release, substitution or addition of collateral securing any Mortgage Loan (other than Non-Serviced Mortgage Loans) or Serviced Whole Loan in connection with a defeasance of such collateral; or (ii) that are related to any condemnation action that is pending, or threatened in writing, and would affect a non-material portion of the Mortgaged Property; provided that such release or substitution or addition of collateral is not a Major Decision;
(i) approving easements or rights of way that materially affect the use or value of a Mortgaged Property or the Mortgagor’s ability to make payments with respect to the related Mortgage Loan; and
(j) approving any requests for modification or amendment of a ground lease or entry into a new ground lease.
“Special Servicer Servicing Personnel”: The divisions and individuals of the Special Servicer who are involved in the performance of the duties of the Special Servicer under this Agreement.
“Special Servicing Compensation”: With respect to any Mortgage Loan, Serviced Whole Loan or REO Property, any of the Special Servicing Fee, the Workout Fee, and the Liquidation Fee which shall be due to the Special Servicer or any other fee due to the Special Servicer pursuant to Section 3.12 of this Agreement.
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“Special Servicing Fee”: With respect to each Specially Serviced Loan and any REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan) and any Distribution Date, an amount accrued during the related Interest Accrual Period at the Special Servicing Fee Rate on the Stated Principal Balance of such Specially Serviced Loan as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan, Companion Loan or Whole Loan, as applicable, is computed and shall be prorated for partial periods. For the avoidance of doubt, the Special Servicing Fee shall be deemed payable from the Lower-Tier REMIC.
“Special Servicing Fee Rate”: With respect to any Specially Serviced Loan or REO Property, a rate equal to (a) 0.25% per annum or (b) if such rate in clause (a) would result in a Special Servicing Fee with respect to a Specially Serviced Loan or REO Property (other than an REO Property acquired with respect to any Non-Serviced Whole Loan) that would be less than $3,500 in any given month, then the Special Servicing Fee Rate for such month for such Specially Serviced Loan or REO Property shall be the higher per annum rate as would result in a Special Servicing Fee equal to $3,500 for such month with respect to such Specially Serviced Loan or REO Property.
“Specially Serviced Loan”: Any Mortgage Loan (excluding any Non-Serviced Mortgage Loan) or Serviced Whole Loan (including any related REO Mortgage Loan and, if applicable, any related REO Serviced Companion Loan) as to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Monthly Payment or a Balloon Payment, which failure continues unremedied (without regard to any grace period):
(i) except in the case of a Balloon Mortgage Loan or Serviced Whole Loan delinquent in respect of its Balloon Payment, for 60 days beyond the date on which the subject payment was due, or
(ii) solely in the case of a delinquent Balloon Payment, (A) 60 days beyond the date on which such Balloon Payment was due (except as described in clause B below) or (B) in the case of a Mortgage Loan or Serviced Whole Loan delinquent with respect to the Balloon Payment as to which the related Mortgagor delivered to the Master Servicer or the Special Servicer (and in either such case the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a copy thereof to the other servicer), a refinancing commitment acceptable to the Special Servicer prior to the date 60 days after the Balloon Payment was due, for 120 days beyond the date on which the Balloon Payment was due (or such shorter period beyond the date on which that Balloon Payment as due during which the refinancing is scheduled to occur);
(b) there shall have occurred a default (other than as set forth in clause (a) above and other than an Acceptable Insurance Default) that (i) in the judgment of the
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Master Servicer or the Special Servicer (in the case of the Special Servicer (A) other than with respect to the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder or with respect to the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), (i) with the consent of the Controlling Class Representative, unless a Control Termination Event has occurred and is continuing or (ii) if a Control Termination Event has occurred and is continuing, following consultation with the Controlling Class Representative, unless a Consultation Termination Event has occurred and is continuing, (B) in the case of the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, with the consent of the holder of the Charles River Plaza North Subordinate Companion Loan or (C) in the case of the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), with the consent of the WPC Department Store Portfolio Directing Holder, as applicable), materially impairs the value of the related Mortgaged Property as security for the Mortgage Loan or Serviced Whole Loan or otherwise materially adversely affects the interests of Certificateholders in the Mortgage Loan (or, in the case of a Serviced Whole Loan, the interests of the Certificateholders or the related Serviced Companion Loan Holder in such Serviced Whole Loan), and (ii) continues unremedied for the applicable grace period under the terms of the Mortgage Loan or Serviced Whole Loan (or, if no grace period is specified and the default is capable of being cured, for 30 days); provided that any default that results in acceleration of the related Mortgage Loan or Serviced Whole Loan without the application of any grace period under the related Mortgage Loan Documents shall be deemed not to have a grace period; and provided, further, that any default requiring a Property Advance will be deemed to materially and adversely affect the interests of the Certificateholders in the Mortgage Loan (or, in the case of any Serviced Whole Loan, the interests of the Certificateholders or the related Serviced Companion Loan Holder in the Serviced Whole Loan); or
(c) the Master Servicer or the Special Servicer has determined (and, in the case of the Special Servicer (A) other than with respect to the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder or with respect to the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), (i) with the consent of the Controlling Class Representative, unless a Control Termination Event has occurred and is continuing or (ii) if a Control Termination Event has occurred and is continuing, following consultation with the Controlling Class Representative, unless a Consultation Termination Event has occurred and is continuing, (B) in the case of the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Companion Loan is the Charles River Plaza North Directing Holder, with the consent of the holder of the Charles River Plaza North Companion Loan or (C) in the case of the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), with the consent of the WPC Department Store Portfolio Directing Holder), as applicable, that (i) a default (other than an Acceptable Insurance Default) under the Mortgage Loan or Serviced Whole Loan is reasonably foreseeable, (ii) such default will materially impair
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the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially adversely affects the interests of Certificateholders in the Mortgage Loan (or, in the case of a Serviced Whole Loan, the interests of the Certificateholders or any related Companion Loan Holder in the Serviced Whole Loan), and (iii) the default is likely to continue unremedied for the applicable grace period under the terms of such Mortgage Loan or Serviced Whole Loan or, if no grace period is specified and the default is capable of being cured, for 30 days; provided that any default that results in acceleration of the related Mortgage Loan or Serviced Whole Loan without the application of any grace period under the related Mortgage Loan Documents shall be deemed not to have a grace period; or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in any involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the related Mortgagor and such decree or order shall have remained in force and not dismissed for a period of 60 days (or a shorter period if the Master Servicer or the Special Servicer (and, in the case of the Special Servicer (A) other than with respect to the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder or the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), (i) with the consent of the Controlling Class Representative, unless a Control Termination Event has occurred and is continuing, or (ii) if a Control Termination Event has occurred and is continuing, following consultation with the Controlling Class Representative, unless a Consultation Termination Event has occurred and is continuing, (B) in the case of the Charles River Plaza North Whole Loan, for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, with the consent of the holder of the Charles River Plaza North Subordinate Companion Loan or (C) in the case of the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), with the consent of the WPC Department Store Portfolio Directing Holder) determines in accordance with the Servicing Standard that the circumstances warrant that the related Mortgage Loan or Serviced Whole Loan (or REO Mortgage Loan or REO Serviced Companion Loan) be transferred to special servicing); or
(e) the related Mortgagor consents to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
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(g) the Master Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the related Mortgaged Property;
provided, however, that a Mortgage Loan or Serviced Whole Loan will cease to be a Specially Serviced Loan, when a Liquidation Event has occurred with respect to such Mortgage Loan or Serviced Whole Loan or any related REO Property or, so long as at such time no circumstance identified in clauses (a) through (g) above exists that would cause the Mortgage Loan or Serviced Whole Loan to continue to be characterized as a Specially Serviced Loan, when:
(w) with respect to the circumstances described in clause (a) of this definition, the related Mortgagor has made three consecutive full and timely Monthly Payments under the terms of such Mortgage Loan or Serviced Whole Loan, as applicable (as such terms may be changed or modified in connection with a bankruptcy or similar proceeding involving the related Mortgagor or by reason of a modification, extension, waiver or amendment granted or agreed to by the Master Servicer or the Special Servicer pursuant to Section 3.24 of this Agreement);
(x) with respect to the circumstances described in clauses (c), (d), (e) and (f) of this definition, such circumstances cease to exist in the good faith, reasonable judgment of the Special Servicer, but, with respect to any bankruptcy or insolvency proceedings described in clauses (d), (e) and (f), no later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (b) of this definition, such default is cured as determined by the Special Servicer in its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g) of this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer’s determination and the Master Servicer may conclusively rely on the Special Servicer’s determination as to whether a Servicing Transfer Event has occurred giving rise to a Mortgage Loan’s becoming a Specially Serviced Loan. If any Mortgage Loan that is part of a Serviced Whole Loan becomes a Specially Serviced Loan, then the related Companion Loan shall also become a Specially Serviced Loan. If the Companion Loan that is included in a Serviced Whole Loan becomes a Specially Serviced Loan, then the related Mortgage Loan that is part of such Whole Loan shall also become a Specially Serviced Loan.
“Sponsor”: Each of Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon and their respective successors-in-interest.
“Startup Day”: The day designated as such pursuant to Section 2.11(c) of this Agreement.
“Stated Principal Balance”: With respect to any Mortgage Loan (other than an REO Mortgage Loan), as of any date of determination, an amount equal to (a) the Cut-Off Date Principal Balance of such Mortgage Loan (or, in the case of a Qualified Substitute Mortgage
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Loan, the unpaid principal balance of such Mortgage Loan as of the date of substitution after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received), minus (b) the sum of (i) the principal portion of each Monthly Payment due on such Mortgage Loan after the Cut-Off Date (or, in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution), if received by the Trust or advanced by the Master Servicer or the Trustee on or prior to the most recent Distribution Date coinciding with or preceding such date of determination, (ii) all Unscheduled Payments with respect to such Mortgage Loan for a Distribution Date on or before such date of determination and (iii) any adjustment thereto as a result of a reduction of principal by a bankruptcy court or as a result of a modification reducing the principal balance due on such Mortgage Loan as of the Determination Date for the most recent Distribution Date occurring on or before such date of determination. The Stated Principal Balance of a Serviced Companion Loan (other than an REO Serviced Companion Loan), as of any date of determination, shall equal (a) the principal balance of such Serviced Companion Loan as of the Cut-Off Date, minus (b) the sum of (i) the principal portion of each Monthly Payment due on such Serviced Companion Loan after the Cut-Off Date, if received by the related Serviced Companion Loan Holder on or prior to the most recent Distribution Date coinciding with or preceding such date of determination, (ii) all Unscheduled Payments with respect to such Serviced Companion Loan for a Distribution Date on or before such date of determination and (iii) any adjustment thereto as a result of a reduction of principal by a bankruptcy court or as a result of a modification reducing the principal balance due on such Serviced Companion Loan as of the Determination Date for the most recent Distribution Date occurring on or before such date of determination. The Stated Principal Balance of a Mortgage Loan with respect to which title to the related Mortgaged Property has been acquired on behalf of the Trust Fund and/or the related Serviced Companion Loan Holder(s), as applicable, is equal to the Stated Principal Balance thereof outstanding on the date on which such title is acquired less any Unscheduled Payments and the principal portion of any P&I Advances with respect to such REO Mortgage Loan or REO Companion Loan for a Distribution Date on or before such date of determination but after the date on which such title is acquired. The Stated Principal Balance of a Serviced Companion Loan with respect to which title to the related Mortgaged Property has been acquired on behalf of the Trust Fund and the related Serviced Companion Loan Holder(s) is equal to the Stated Principal Balance thereof outstanding on the date on which such title is acquired less any Unscheduled Payments with respect to such Serviced Companion Loan for a Distribution Date on or before such date of determination but after the date on which such title is acquired. The Stated Principal Balance of a Serviced Whole Loan (including an REO Whole Loan), as of any date of determination, shall equal the sum of the then-aggregate Stated Principal Balances of the related Mortgage Loan (including an REO Mortgage Loan) and the related Serviced Companion Loan(s) (including any REO Serviced Companion Loan(s)). For purposes of this definition, if remittances are made to any Serviced Companion Loan Holder on any day of the month other than the Distribution Date in such month, then such remittances shall be deemed made on the Distribution Date in such month. The Stated Principal Balance of any Non-Serviced Mortgage Loan will be calculated in accordance with the definition of “Stated Principal Balance” in the applicable Other Pooling and Servicing Agreement but shall also take into account P&I Advances made by the Master Servicer or Trustee in the manner described above. Notwithstanding the foregoing, the Stated Principal Balance of a Specially Serviced Loan with respect to which the Special Servicer has made a Final Recovery Determination is zero.
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“Starwood Capital Extended Stay Portfolio Co-Lender Agreement”: With respect to the Starwood Capital Extended Stay Portfolio Whole Loan, the co-lender agreement, dated as of August 18, 2015, by and between the holder of the Starwood Capital Extended Stay Portfolio Mortgage Loan and the Starwood Capital Extended Stay Portfolio Companion Loan Holders, relating to the relative rights of the holder of the Starwood Capital Extended Stay Portfolio Mortgage Loan and the Starwood Capital Extended Stay Portfolio Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
“Starwood Capital Extended Stay Portfolio Companion Loans”: With respect to the Starwood Capital Extended Stay Portfolio Whole Loan, the related promissory notes made by the related Mortgagor and secured by the Starwood Capital Extended Stay Portfolio Mortgage and designated as Note A-1-B, Note A-2 and Note A-3, which notes are not included in the Trust.
“Starwood Capital Extended Stay Portfolio Companion Loan Holder”: A holder of a Starwood Capital Extended Stay Portfolio Companion Loan.
“Starwood Capital Extended Stay Portfolio Mortgage Loan”: With respect to the Starwood Capital Extended Stay Portfolio Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Starwood Capital Extended Stay Portfolio, which is evidenced by promissory note designated as Note A-1-A.
“Starwood Capital Extended Stay Portfolio”: The Starwood Capital Extended Stay Portfolio Mortgage Loan, together with the Starwood Capital Extended Stay Portfolio Companion Loans, each of which is secured by the Starwood Capital Extended Stay Portfolio Mortgage. References herein to the Starwood Capital Extended Stay Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Starwood Capital Extended Stay Portfolio Mortgage.
“Sterling & Milagro Co-Lender Agreement”: With respect to the Sterling & Milagro Whole Loan, the co-lender agreement, dated as of May 20, 2015, by and between the holder of the Sterling & Milagro Mortgage Loan and the Sterling & Milagro Companion Loan Holders, relating to the relative rights of the holder of the Sterling & Milagro Mortgage Loan and the Sterling & Milagro Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
“Sterling & Milagro Companion Loan”: With respect to the Sterling & Milagro Whole Loan, the related promissory notes made by the related Mortgagor and secured by the Sterling & Milagro Mortgage and designated as Note A-1, which note is not included in the Trust.
“Sterling & Milagro Companion Loan Holder”: A holder of a Sterling & Milagro Companion Loan.
“Sterling & Milagro Mortgage”: The Mortgage securing the Sterling & Milagro Mortgage Loan and the Sterling & Milagro Companion Loan.
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“Sterling & Milagro Mortgage Loan”: With respect to the Sterling & Milagro Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Sterling & Milagro, which is evidenced by promissory Note A-2. The Sterling & Milagro Mortgage Loan is a “Non-Serviced Mortgage Loan” and will be serviced pursuant to the CSAIL 2015-C2 Pooling and Servicing Agreement.
“Sterling & Milagro Whole Loan”: The Sterling & Milagro Mortgage Loan, together with the Sterling & Milagro Companion Loan, each of which is secured by the Sterling & Milagro Mortgage. References herein to the Sterling & Milagro Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Sterling & Milagro Mortgage.
“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall or general servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities market) of Mortgage Loans but performs one or more discrete functions of the Servicing Criteria with respect to Mortgage Loans under the direction or authority of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, an Additional Servicer, or a Sub-Servicer.
“Subordinate Companion Loan”: Each of the Charles River Plaza North Subordinate Companion Loan and the Soho-Tribeca Grand Hotel Portfolio Subordinate Companion Loan.
“Subordinate Companion Loan Holder”: The holder of the related Subordinate Companion Loan.
“Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(a) of this Agreement, an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. In the event that one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loans.
“Sub-Servicer”: Any Person that Services Mortgage Loans on behalf of the Master Servicer, the Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of all or a material portion of the servicing functions required to be performed by the Master Servicer, the Special Servicer, a Servicing Function Participant or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans, that are identified in the Servicing Criteria. As of the Closing Date, the Sub-Servicer(s) set forth on Exhibit S to this Agreement will be the Sub-Servicer for the related Mortgage Loan(s) set forth on Exhibit S to this Agreement.
“Sub-Servicing Agreement”: The written contract between the Master Servicer, an Additional Servicer or the Special Servicer, as the case may be, and any Sub-Servicer relating
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to servicing and administration of Mortgage Loans as provided in Section 3.01(c) of this Agreement.
“Successful Bidder”: As defined in Section 7.01(b) of this Agreement.
“Supplemental Servicer Schedule”: With respect to the Mortgage Loans to be serviced by the Master Servicer, a list attached hereto as Exhibit P, which list sets forth the following information with respect to each Mortgage Loan:
(i) the Mortgagor’s name;
(ii) property type;
(iii) the original balance;
(iv) the origination date;
(v) the original and remaining amortization term;
(vi) whether such Mortgage Loan has a guarantor;
(vii) whether such Mortgage Loan is secured by a letter of credit;
(viii) the original balance of any reserve or escrowed funds and the monthly amount of any reserve or escrowed funds;
(ix) the grace period with respect to both default interest and late payment charges;
(x) whether such Mortgage Loan is insured by RVI, lease enhancement policy or environmental policies;
(xi) whether an operation and maintenance plan exists and, if so, what repairs are required;
(xii) whether a cash management agreement or lockbox agreement is in place;
(xiii) the number of units, pads, rooms or square feet of the Mortgaged Property;
(xiv) the amount of the Monthly Payment due on the first Due Date following the Closing Date;
(xv) the interest accrual basis;
(xvi) Administrative Cost Rate;
(xvii) whether the Mortgage Loan is secured by a Ground Lease;
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(xviii) whether the related Mortgage Loan is a Defeasance Loan; and
(xix) whether such Mortgage Loan is part of any Serviced Whole Loan, in which case the information required by clauses (xiv), (xv) and (xvi) above shall also be set forth for the Companion Loan in such Serviced Whole Loan.
Such list may be in the form of more than one list, collectively setting forth all of the information required.
“Tax Returns”: The federal income tax return on IRS Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC under the REMIC Provisions, and the federal income tax return to be filed by the Certificate Administrator on behalf of the Grantor Trust due to its classification as a grantor trust under subpart E, part I of subchapter J of the Code, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the IRS or any other governmental taxing authority under any applicable provisions of federal, state or local tax laws.
“Temporary Regulation S Global Certificate”: As defined in Section 5.02(c)(i) of this Agreement.
“Terminated Party”: As defined in Section 7.01(c) of this Agreement.
“Termination Date”: The Distribution Date on which the Trust Fund is terminated pursuant to Section 9.01.
“Third Party Reports”: With respect to any Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report or property condition report, if any.
“Transfer”: Any direct or indirect transfer or other form of assignment of any Ownership Interest in a Class R Certificate.
“Transferee Affidavit”: As defined in Section 5.03(n)(ii) of this Agreement.
“Transferor Letter”: As defined in Section 5.03(n)(ii) of this Agreement.
“Treasury Regulations”: Applicable final or temporary regulation of the U.S. Department of the Treasury.
“Trust”: The trust created by this Agreement.
“Trust Fund”: The corpus of the trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution);
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(iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of this Agreement; and (xi) the Lower-Tier Regular Interests.
“Trust Reimbursement Amount”: As defined in Section 3.06A(a) of this Agreement.
“Trust Reimbursement Amount No. 1”: As defined in Section 3.06(a) of this Agreement.
“Trust Reimbursement Amount No. 2”: As defined in Section 3.06A(a) of this Agreement.
“Trust REMIC”: Each of the Lower-Tier REMIC and the Upper-Tier REMIC.
“Trustee”: Wells Fargo Bank, National Association, a national banking association, in its capacity as trustee, and its successor in interest, or any successor trustee appointed as herein provided.
“Trustee Personnel”: The divisions and individuals of the Trustee who are involved in the performance of the duties of the Trustee under this Agreement.
“Trustee/Certificate Administrator Fee”: With respect to each Mortgage Loan and for any Distribution Date, an amount accrued during the related Interest Accrual Period at the Trustee/Certificate Administrator Fee Rate on the Stated Principal Balance of such Mortgage Loan as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the Trustee/Certificate Administrator Fee shall be payable from the Lower-Tier REMIC.
“Trustee/Certificate Administrator Fee Rate”: With respect to each Mortgage Loan, a rate equal to 0.0032% per annum.
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“UBSRES”: UBS Real Estate Securities Inc., a Delaware corporation, and its successors in interest.
“UBSRES Loan Purchase Agreement”: The mortgage loan purchase agreement, dated as of August 1, 2015, by and between UBSRES and the Depositor.
“Underwriters”: Credit Suisse Securities (USA) LLC, UBS Securities LLC and Drexel Hamilton, LLC.
“Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) (B) and (C) of Section 3.06(a) of this Agreement but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan or REO Property in respect of which the Advance was made.
“Unscheduled Payments”: With respect to any Distribution Date and the Mortgage Loans (including the REO Mortgage Loans and REO Companion Loans) and the Serviced Companion Loans, as applicable, the aggregate of (a) all principal prepayments received on the Mortgage Loans (including any Non-Serviced Mortgage Loan, any REO Mortgage Loan, and any interest in REO Property acquired with respect to any Non-Serviced Whole Loan) or the Serviced Companion Loans, as applicable, during the applicable Prepayment Period and (b) the principal portions of all Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds (in each case, net of Special Servicing Fees, Liquidation Fees, accrued interest on Advances and other Additional Trust Fund Expenses incurred in connection with the related Mortgage Loan) and, if applicable, Net REO Proceeds received with respect to the Mortgage Loans and any REO Properties (including any interest in REO Property acquired with respect to any Non-Serviced Whole Loan) or the Serviced Companion Loans, as applicable, during the applicable Prepayment Period, but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made in respect of a preceding Distribution Date.
“Upper-Tier Distribution Account”: The trust account or accounts created and maintained as a separate trust account (or separate sub-account within the same account as the Lower-Tier Distribution Account) or accounts by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement, which (subject to any changes in the identity of the Trustee or the Certificate Administrator) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Upper-Tier Distribution Account” and which must be an Eligible Account.
“Upper-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Lower-Tier Regular Interests and amounts held from time to time in the Upper-Tier Distribution Account.
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“Upper-Tier Residual Interest”: The sole class of “residual interests”, within the meaning of Code Section 860G(a)(2), in the Upper-Tier REMIC and evidenced by the Class R Certificates.
“U.S. Tax Person”: A citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any State thereof or the District of Columbia, an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence as of August 20, 1996 that have elected to be treated as U.S. Tax Persons).
“Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates. At all times during the term of this Agreement, the percentage of the Voting Rights assigned to each Class shall be (a) 0%, in the case of the Class Z and Class R Certificates, (b) 2% in the aggregate to the Class X-A, Class X-B, Class X-D, Class X-E, Class X-F and Class X-NR Certificates, allocated between such Classes based on their respective interest entitlements on the most recent prior Distribution Date, and (c) in the case of any of any Class of Principal Balance Certificates, a percentage equal to the product of (i) 98% multiplied by (ii) a fraction, the numerator of which is equal to the Certificate Principal Balance of such Class and the denominator of which is equal to the aggregate of the Certificate Principal Balances of all Classes of Principal Balance Certificates (or, if with respect to a vote of Non-Reduced Certificates, the aggregate of the Certificate Principal Balances of all Classes of the Non-Reduced Certificates). The Voting Rights of any Class of Certificates shall be allocated among Holders of Certificates of such Class in proportion to their respective Percentage Interests. The aggregate Voting Rights of Holders of more than one Class of Certificates shall be equal to the sum of the products of each such Holder’s Voting Rights and the percentage of Voting Rights allocated to the related Class of Certificates.
“WAC Rate”: With respect to any Distribution Date, a per annum rate equal to the weighted average of the Net Mortgage Loan Rates in effect for the Mortgage Loans (including the REO Mortgage Loans) as of their respective Due Dates in the month preceding the month in which such Distribution Date occurs, weighted on the basis of the respective Stated Principal Balances of the Mortgage Loans (including the REO Mortgage Loans) immediately following the Distribution Date (or, if applicable, the Closing Date) in such preceding month.
“Westfield Trumbull Co-Lender Agreement”: With respect to the Westfield Trumbull Whole Loan, the related co-lender agreement, dated as of March 20, 2015, by and between the holder of the Westfield Trumbull Mortgage Loan and the Westfield Trumbull Companion Loan Holders, relating to the relative rights of the holder of the Westfield Trumbull Mortgage Loan and the Westfield Trumbull Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
“Westfield Trumbull Companion Loans”: With respect to the Westfield Trumbull Whole Loan, the related promissory notes made by the related Mortgagor and secured by the
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Westfield Trumbull Mortgage and designated as (i) in the case of one Westfield Trumbull Companion Loan, A-1 and B-1 and (ii) in the case of another Westfield Trumbull Companion Loan, A-3 and B-3, which notes are not included in the Trust. Notes A-1, A-2 and A-3 (the “Westfield Trumbull A Notes”) are senior to Notes B-1, B-2 and B-3 (the “Westfield Trumbull B Notes”). Each Westfield Trumbull A Note is pro rata and pari passu in right of payment with each other Westfield Trumbull A Note and each Westfield Trumbull B Note is pro rata and pari passu in right of payment with each other Westfield Trumbull B Note to the extent set forth in the related Mortgage Loan Documents and as provided in the Westfield Trumbull Co-Lender Agreement.
“Westfield Trumbull Companion Loan Holder”: A holder of a Westfield Trumbull Companion Loan.
“Westfield Trumbull Mortgage”: The Mortgage securing the Westfield Trumbull Mortgage Loan and the Westfield Trumbull Companion Loans.
“Westfield Trumbull Mortgage Loan”: With respect to the Westfield Trumbull Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Westfield Trumbull, which is evidenced by promissory notes A-2 and B-2. The Westfield Trumbull Mortgage Loan is a “Non-Serviced Mortgage Loan” and will be serviced pursuant to the CSAIL 2015-C1 Pooling and Servicing Agreement.
“Westfield Trumbull Whole Loan”: The Westfield Trumbull Mortgage Loan, together with the Westfield Trumbull Companion Loans, each of which is secured by the Westfield Trumbull Mortgage. References herein to the Westfield Trumbull Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Westfield Trumbull Mortgage.
“Westfield Wheaton Co-Lender Agreement”: With respect to the Westfield Wheaton Whole Loan, the related amended and restated co-lender agreement, dated as of May 20, 2015, by and between the holder of the Westfield Wheaton Mortgage Loan and the Westfield Wheaton Companion Loan Holders, relating to the relative rights of the holder of the Westfield Wheaton Mortgage Loan and the Westfield Wheaton Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
“Westfield Wheaton Companion Loan”: With respect to the Westfield Wheaton Whole Loan, the related promissory notes made by the related Mortgagor and secured by the Westfield Wheaton Mortgage and designated as (i) in the case of one Westfield Wheaton Companion Loan, A-1-1 and B-1-1, and (ii) in the case of another Westfield Wheaton Companion Loan, A-3 and B-3, which notes are not included in the Trust. Notes A-1-1, A-1-2, A-2 and A-3 (the “Westfield Wheaton A Notes”) are senior to Notes B-1-1, B-1-2, B-2 and B-3 (the “Westfield Wheaton B Notes”). Each Westfield Wheaton A Note is pro rata and pari passu in right of payment with each other Westfield Wheaton A Note and each Westfield Wheaton B Note is pro rata and pari passu in right of payment with each other Westfield Wheaton B Note to the extent set forth in the related Mortgage Loan Documents and as provided in the Westfield Wheaton Co-Lender Agreement.
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“Westfield Wheaton Companion Loan Holder”: A holder of a Westfield Wheaton Companion Loan.
“Westfield Wheaton Mortgage”: The Mortgage securing the Westfield Wheaton Mortgage Loan and the Westfield Wheaton Companion Loans.
“Westfield Wheaton Mortgage Loan”: With respect to the Westfield Wheaton Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as Westfield Wheaton, which is evidenced by promissory notes A-1-2, A-2, B-1-2 and B-2. The Westfield Trumbull Mortgage Loan is a “Non-Serviced Mortgage Loan” and will be serviced pursuant to the CSAIL 2015-C2 Pooling and Servicing Agreement.
“Westfield Wheaton Whole Loan”: The Westfield Wheaton Mortgage Loan, together with the Westfield Wheaton Companion Loans, each of which is secured by the Westfield Wheaton Mortgage. References herein to the Westfield Wheaton Whole Loan shall be construed to refer to the aggregate indebtedness secured under the Westfield Wheaton Mortgage.
“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
“WHFIT Regulations”: Treasury Regulations section 1.671-5, as amended.
“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.
“Whole Loan”: Each of the Charles River Plaza Whole Loan, the Starwood Capital Extended Stay Portfolio Whole Loan, the Mall of New Hampshire Whole Loan, the Westfield Wheaton Whole Loan, the Arizona Grand Resort & Spa Whole Loan, the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the Westfield Trumbull Whole Loan, the WPC Department Store Portfolio Whole Loan, the Sterling & Milagro Whole Loan and the Cape May Hotels Whole Loan (and shall include any successor REO Mortgage Loan or successor REO Companion Loan).
“Whole Loan Control Appraisal Event”: The Charles River Plaza North Control Appraisal Event.
“Whole Loan Directing Holder”: With respect to the Charles River Plaza North Whole Loan, the Charles River Plaza North Directing Holder.
“WPC Department Store Portfolio Co-Lender Agreement”: With respect to the WPC Department Store Portfolio Whole Loan, the related co-lender agreement, dated as of August 18, 2015, by and between the holder of the WPC Department Store Portfolio Mortgage Loan and the WPC Department Store Portfolio Companion Loan Holders, relating to the relative rights of the holder of the WPC Department Store Portfolio Mortgage Loan and the WPC Department Store Portfolio Companion Loan Holders, as the same may be amended from time to time in accordance with the terms thereof.
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“WPC Department Store Portfolio Companion Loans”: With respect to the WPC Department Store Portfolio Whole Loan, the related promissory notes made by the related Mortgagor and secured by the WPC Department Store Portfolio Mortgage and designated as Note A-1 and Note A-2 and are not included in the Trust.
“WPC Department Store Portfolio Companion Loan Holder”: A holder of a WPC Department Store Portfolio Companion Loan.
“WPC Department Store Portfolio Directing Holder”: Initially, the holder of the WPC Department Store Portfolio Companion Loan designated as Note A-2 and, after the WPC Department Store Portfolio Securitization Date, the “controlling class representative” or such other party specified in the related Other Pooling and Servicing Agreement.
“WPC Department Store Portfolio Mortgage”: The Mortgage securing the WPC Department Store Portfolio Mortgage Loan and the WPC Department Store Portfolio Companion Loans.
“WPC Department Store Portfolio Mortgage Loan”: With respect to the WPC Department Store Portfolio Whole Loan, the Mortgage Loan included in the Trust and identified on the Mortgage Loan Schedule as WPC Department Store Portfolio, which is evidenced by promissory note A-3. From and after the WPC Department Store Portfolio Securitization Date, the WPC Department Store Portfolio Mortgage Loan will be a “Non-Serviced Mortgage Loan” and will be serviced pursuant to the related Other Pooling and Servicing Agreement.
“WPC Department Store Portfolio Securitization Date”: With respect to the WPC Department Store Portfolio Whole Loan, the date on which the WPC Department Store Portfolio Companion Loan designated as Note A-2 is included in a securitization trust; provided that the holder of such WPC Department Store Portfolio Companion Loan provides each of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee (in each case only to the extent such party will not also be a party to the related Non-Trust Pooling and Servicing Agreement) with notice in accordance with the terms of the related Co-Lender Agreement that the WPC Department Store Portfolio Companion Loan designated as Note A-2 is to be included in the securitization related to such Other Pooling and Servicing Agreement.
“WPC Department Store Portfolio Whole Loan”: The WPC Department Store Portfolio Mortgage Loan, together with the WPC Department Store Portfolio Companion Loans, each of which is secured by the WPC Department Store Portfolio Mortgage. References herein to the WPC Department Store Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness secured under the WPC Department Store Portfolio Mortgage.
“Withheld Amounts”: As defined in Section 3.23 of this Agreement.
“Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan or Serviced Whole Loan, the amount of any Advance made with respect to such Mortgage Loan or Serviced Whole Loan on or before the date such Mortgage Loan or Serviced Whole Loan becomes (or, but for the making of three monthly payments under its modified terms, would then constitute) a Corrected Mortgage Loan, together with (to the extent accrued and
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unpaid) interest on such Advances, to the extent that (i) such Advance is not reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan or Whole Loan becomes a Corrected Mortgage Loan and (ii) the amount of such Advance becomes a future obligation of the Mortgagor to pay under the terms of modified Mortgage Loan Documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.
“Workout Fee”: The fee paid to the Special Servicer with respect to each Corrected Mortgage Loan equal to the Workout Fee Rate applied to each collection of interest (excluding Default Interest and Excess Interest) and principal (other than any amount for which a Liquidation Fee is paid) received on such Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan; provided that no Workout Fee shall be payable by the Trust with respect to any Corrected Mortgage Loan if and to the extent that the Corrected Mortgage Loan became a Specially Serviced Loan under clause (c) of the definition of “Specially Serviced Loan” (and no other clause thereof) and no mortgage loan event of default actually occurs, unless the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan is modified by the Special Servicer in accordance with the terms hereof; provided, further, that if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” and the related collection of principal and interest is received within 90 days following the related maturity date in connection with the full and final pay-off of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the Special Servicer will not be entitled to collect a Workout Fee, but may collect and retain appropriate fees from the related Mortgagor in connection with such workout; provided, further, that the Workout Fee with respect to any Specially Serviced Loan that becomes a Corrected Mortgage Loan shall be reduced by any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to such Mortgage Loan or Serviced Whole Loan as described in the definition of “Excess Modification Fees” in this Agreement, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee.
“Workout Fee Rate”: A rate equal to the lesser of (a) 1.0% with respect to any Corrected Mortgage Loan and (b) such lower rate as would result in a Workout Fee of $1,000,000 when applied to each expected payment of principal and interest (excluding Default Interest and Excess Interest) on any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, if applicable, from the date such Mortgage Loan (or Serviced Whole Loan, if applicable) becomes a Corrected Mortgage Loan, through and including the related Maturity Date (or if the rate in clause (a) above would result in a Workout Fee that would be less than $25,000 when applied to each expected payment of principal and interest (other than Default Interest and Excess Interest) on the related Mortgage Loan (or Serviced Whole Loan, if applicable) from the date such Mortgage Loan (or Serviced Whole Loan, if applicable) becomes a Corrected Mortgage Loan through and including the then related maturity date, then the Workout Fee Rate shall be a rate equal to such higher rate as would result in a Workout Fee equal to $25,000 when applied to each expected payment of principal and interest (other than Default Interest and Excess Interest) on such Mortgage Loan (or Serviced Whole Loan, if applicable) from the date such Mortgage Loan (or Serviced Whole Loan, if applicable) becomes a Corrected Mortgage Loan through and including the then related maturity date).
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“Yield Maintenance Charge”: With respect to any Mortgage Loan and Companion Loan, the yield maintenance charge or prepayment premium, if any, payable under the related Note(s) (in the case of a Mortgage Loan) or the related note(s) in favor of the Companion Loan Holder (in the case of a Serviced Companion Loan) in connection with certain prepayments.
“YM Groups”: As defined in Section 4.01(c) of this Agreement.
“YM Group A”: As defined in Section 4.01(c) of this Agreement.
“YM Group B”: As defined in Section 4.01(c) of this Agreement.
Section 1.02 Certain Calculations. Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans shall be made in accordance with the terms of the related Note(s) and Mortgage.
(b) For purposes of distribution of Yield Maintenance Charges pursuant to Section 4.01(c) of this Agreement on any Distribution Date, the Class of Principal Balance Certificates as to which any prepayment shall be deemed to be distributed shall be determined on the assumption that the portion of the Principal Distribution Amount paid to the Principal Balance Certificates on such Distribution Date in respect of principal shall consist first of scheduled payments included in the definition of Principal Distribution Amount and second of prepayments included in such definition.
(c) Any Mortgage Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer, the Special Servicer or the Certificate Administrator; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with Section 3.01(b) of this Agreement to reduce the outstanding principal balance of such Mortgage Loan on which interest accrues.
(d) All amounts collected by or on behalf of the Trust in respect of any Mortgage Loan (in the case of any Non-Serviced Mortgage Loan, subject to any prior allocations under the related Co-Lender Agreement and/or the applicable Other Pooling and Servicing Agreement) in the form of payments from the related Mortgagor, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds shall be allocated to amounts due and owing under the related Mortgage Loan Documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, if applicable, the related Co-Lender Agreement; provided, however, that in the absence of such express provisions of the related Mortgage Loan Documents or if and to the extent that such provisions authorize the mortgagee to use its discretion and in any event for purposes of calculating distributions hereunder after an event of default under the related Mortgage Loan (to the extent not cured or waived), in each case only to the extent such amount is an obligation of the related Mortgagor in the related Mortgage Loan Documents, all such amounts collected shall be deemed to be allocated for purposes of collecting amounts due under the Mortgage Loan in the following order of priority:
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(i) as a recovery of any unreimbursed Advances with respect to such Mortgage Loan and unpaid interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to such Mortgage Loan;
(ii) as a recovery of Nonrecoverable Advances and any interest thereon, to the extent previously reimbursed from principal collections with respect to such Mortgage Loan;
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on such Mortgage Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on such Mortgage Loan at the related Mortgage Loan Rate through and including the end of the related Mortgage Loan interest accrual period in which such collections are received by or on behalf of the Trust, over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.06(a) of this Agreement in connection with Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest on earlier dates pursuant to clause (v) below);
(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if the Mortgage Loan has been liquidated or in the case of an ARD Loan after the related Anticipated Repayment Date, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(v) as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.06(a) of this Agreement in connection with related Appraisal Reduction Amounts (to the extent that collections have not been allocated as recovery of accrued and unpaid interest on earlier dates pursuant to this clause (v));
(vi) as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to such Mortgage Loan;
(vii) as a recovery of any other reserves to the extent then required to be held in escrow with respect to such Mortgage Loan;
(viii) as a recovery of any Yield Maintenance Charge then due and owing under such Mortgage Loan, but only to the extent collected;
(ix) as a recovery of any Default Interest, Excess Interest or late payment charges then due and owing under such Mortgage Loan;
(x) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under such Mortgage Loan;
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(xi) as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both Consent Fees and Operating Advisor Consulting Fees are due and owing, first, allocated to Consent Fees and then, allocated to Operating Advisor Consulting Fees); and
(xii) as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance;
provided that, to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of a Mortgaged Property (including following a condemnation) if, immediately following such release, the loan-to-value ratio of the related Mortgage Loan or the related Serviced Whole Loan exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any), must be allocated to reduce the principal balance of the Mortgage Loan or the related Serviced Whole Loan in the manner permitted by such REMIC Provisions.
(e) Collections by or on behalf of the Trust in respect of any REO Property for any REO Mortgage Loan (in the case of a Non-Serviced Mortgage Loan, subject to any prior allocations under the related Co-Lender Agreement and/or the applicable Other Pooling and Servicing Agreement) (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property (and, if applicable, except as expressly set forth in the related Co-Lender Agreement and/or the related Other Pooling and Servicing Agreement) shall be deemed allocated for purposes of collecting amounts due under the related REO Mortgage Loan, in each case only to the extent such amount is or was an obligation of the related Mortgagor in the related Mortgage Loan Documents, in the following order of priority:
(i) as a recovery of any unreimbursed Advances with respect to the related REO Mortgage Loan and interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to the related REO Mortgage Loan;
(ii) as a recovery of Nonrecoverable Advances and any interest thereon, to the extent previously allocated from principal collections with respect to the related REO Mortgage Loan;
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on the related REO Mortgage Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on the related REO Mortgage Loan at the related Mortgage Loan Rate through and including the end of the related Mortgage Loan interest accrual period in which such collections are received by or on behalf of the Trust, over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for the related REO Mortgage Loan that have theretofore occurred under Section 4.06(a) of this Agreement in connection with related Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest on earlier dates pursuant to clauses (v) below or clause (d)(v) above);
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(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(v) as a recovery of accrued and unpaid interest on such REO Mortgage Loan to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances for the related REO Mortgage Loan that have theretofore occurred under Section 4.06(a) of this Agreement in connection with related Appraisal Reduction Amounts (to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest on earlier dates pursuant to this clause (v) or clause (d)(v) above);
(vi) as a recovery of any Yield Maintenance Charge then due and owing under the related REO Mortgage Loan, but only to the extent collected;
(vii) as a recovery of any Default Interest, Excess Interest or late payment charges then due and owing under the related REO Mortgage Loan;
(viii) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under the related REO Mortgage Loan; and
(ix) as a recovery of any other amounts then due and owing under the related REO Mortgage Loan (if both Consent Fees and Operating Advisor Consulting Fees are due and owing, first, allocated to Consent Fees and then, allocated to Operating Advisor Consulting Fees).
(f) The applications of amounts received in respect of any Mortgage Loan pursuant to paragraph (d) of this Section 1.02 shall be determined by the Master Servicer (for non-Specially Serviced Loans) and the Special Servicer (for Specially Serviced Loans) in accordance with the Servicing Standard. The applications of amounts received in respect of any Mortgage Loan or any REO Property pursuant to paragraph (e) of this Section 1.02 shall be determined by the Special Servicer in accordance with the Servicing Standard.
(g) All net present value calculations and determinations made hereunder with respect to the Mortgage Loans, the Companion Loans or a Mortgaged Property or REO Property (other than the Trust’s interest in any REO Property acquired with respect to any Non-Serviced Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using the Calculation Rate.
(h) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the applicable Other Pooling and Servicing Agreement related to a Non-Serviced Mortgage Loan or the applicable beneficial interest in any related REO Property are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement, as applicable, and the related Non-Serviced Mortgage Loan.
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Section 1.03 Certain Constructions.
(a) For purposes of this Agreement, references to the most or next most subordinate Class of Certificates outstanding at any time shall mean the most or next most subordinate Class of Certificates then outstanding as among the Class A, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificates; provided, however, that for purposes of determining the most subordinate Class of Certificates, in the event that the Class A Certificates are the only Classes of Principal Balance Certificates outstanding, the Class A Certificates and the Class X-A Certificates together will be treated as the most subordinate Class of Certificates. For purposes of this Agreement, each Class of Regular Certificates shall be deemed to be outstanding only to the extent its respective Certificate Principal Balance or Notional Amount has not been reduced to zero. For purposes of this Agreement, the Class R Certificates shall be deemed to be outstanding so long as the Trust REMICs have not been terminated pursuant to Section 9.01 of this Agreement.
(b) For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other gender;
(ii) references herein to “Articles”, “Sections”, “Subsections”, “Paragraphs” and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement;
(iii) a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions;
(iv) the words “herein”, “hereof”, “hereunder”, “hereto”, “hereby” and other words of similar import refer to this Agreement as a whole and not to any particular provision; and
(v) the terms “include” or “including” shall mean without limitation by reason of enumeration.
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust to be designated as CSAIL 2015-C3 Commercial Mortgage Trust, appoint the Trustee to serve as trustee of such trust and assign, sell, transfer, set over and
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otherwise convey to the Trustee (as holder of the Lower-Tier Regular Interests) in trust without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4, 5 (other than Section 5(e) and 5(f)), 6 (other than Section 6(a)(i) and 6(a)(x)) and to the extent related to the foregoing, 7, 11, 12, 13, 14, 16, 17, 18 and 23 of each Loan Purchase Agreement, (iii) the Co-Lender Agreements and (iv) all Escrow Accounts, Lockbox Accounts and all other assets included or to be included in the Trust Fund for the benefit of the Certificateholders. Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (other than payments of principal, interest and other amounts due and payable on the Mortgage Loans on or before the Cut-Off Date and excluding any Loan Seller Defeasance Rights and Obligations with respect to the Mortgage Loans). Such assignment of each Mortgage Loan that is part of a Whole Loan is further subject to the terms and conditions of the applicable Other Pooling and Servicing Agreement and each related Co-Lender Agreement. The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 11.08 of this Agreement, is intended by the parties to constitute a sale.
(b) In connection with the Depositor’s assignment pursuant to Section 2.01(a) of this Agreement, the Depositor shall direct each Mortgage Loan Seller (pursuant to the related Loan Purchase Agreement) to deliver to and deposit with the Custodian (on behalf of the Certificate Administrator), on or before the Closing Date, the Mortgage File for each Mortgage Loan, with copies to be delivered within five (5) Business Days after the Closing Date, to the Master Servicer (other than with respect to a Non-Serviced Mortgage Loan) and the Special Servicer; provided, however, that copies of any document in the Mortgage File that also constitutes a Designated Servicing Document shall be delivered to the Master Servicer (other than with respect to a Non-Serviced Mortgage Loan) on or before the Closing Date. None of the Certificate Administrator, the Trustee, the Custodian, the Master Servicer or the Special Servicer shall be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the document delivery requirements of the related Loan Purchase Agreement and this Section 2.01(b). Notwithstanding anything herein to the contrary, with respect to letters of credit (exclusive of those relating to Non-Serviced Mortgage Loans), the applicable Mortgage Loan Seller shall deliver to the Master Servicer and the Master Servicer shall hold the original (or copy, if such original has been submitted by the applicable Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of such letter of credit (changing the beneficiary thereof to the Trust (in care of the Master Servicer) that may be required in order for the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan Documents) and the applicable Mortgage Loan Seller shall be deemed to have satisfied any delivery requirements of the related Loan Purchase Agreement and this Section 2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to the Custodian together with an Officer’s Certificate of the applicable Mortgage Loan Seller certifying that such document has been delivered to the Master Servicer or an Officer’s Certificate from the Master Servicer certifying that it holds the letter(s) of credit pursuant to this Section 2.01(b). If a letter of credit referred to in the previous sentence is not in a form that would allow the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan Documents, the applicable Mortgage Loan Seller shall deliver the appropriate assignment or amendment documents (or copies of such assignment or amendment documents if the related
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Mortgage Loan Seller has submitted the originals to the related issuer of such letter of credit for processing) to the Master Servicer within 90 days of the Closing Date; provided that with respect to the WPC Department Store Portfolio Mortgage Loan, no such assignments shall be made until the earlier of (i) the WPC Department Store Portfolio Securitization Date, in which case such assignments shall be made in accordance with the related Other Pooling and Servicing Agreement, and (ii) the earlier of (A) 180 days after the Closing Date and (B) such time as any such letter of credit is required to be drawn upon by the Master Servicer, in which case such assignments shall be made in favor of the Trustee for the benefit of the Certificateholders and for the benefit of the holder of the related Companion Loan, until the occurrence of the WPC Department Store Portfolio Securitization Date, as the case may be. Contemporaneous with the WPC Department Store Portfolio Securitization Date, any such letter of credit shall be assigned to the related Other Master Servicer or related Other Trustee, as applicable, as provided in the related Other Pooling and Servicing Agreement. The applicable Mortgage Loan Seller shall pay any costs of assignment or amendment of such letter(s) of credit required in order for the Master Servicer to draw on such letter(s) of credit on behalf of the Trust and shall cooperate with the reasonable requests of the Master Servicer or the Special Servicer, as applicable, in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is assigned or amended in order that it may be drawn by the Master Servicer on behalf of the Trust.
After the Depositor’s transfer of the Mortgage Loans to the Trustee pursuant to this Section 2.01(b), the Depositor shall not take any action inconsistent with the Trust’s ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that each Mortgage Loan Seller has covenanted in the applicable Loan Purchase Agreement that it shall record and file, or, in the case of Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon, shall cause AMO to record and file, at the related Mortgage Loan Seller’s expense, in the appropriate public office for real property records or UCC financing statements, as appropriate, each related assignment of Mortgage and assignment of Assignment of Leases, in favor of the Trustee referred to in clause (4) of the definition of “Mortgage File” and each related UCC-3 assignment referred to in clause (15) of the definition of “Mortgage File” and, with respect to any Mortgage Loan to which the Custodian has agreed to record and file such documents, the Custodian shall promptly undertake to record or file any such document upon its receipt thereof. This subsection (c) shall not apply to any Non-Serviced Mortgage Loan because the documents referred to herein have been assigned to the Other Trustee. Notwithstanding the foregoing, in the case of the WPC Department Store Portfolio Whole Loan (prior to its becoming a Non-Serviced Mortgage Loan), the timing of any recordation of the documents referred to herein shall be governed by the last paragraph of the definition of “Mortgage File” and, following the WPC Department Store Portfolio Securitization Date, if such recordation has been effected, such documents shall be assigned in accordance with the last paragraph of the definition of “Mortgage File”.
The Depositor hereby represents and warrants that the applicable Mortgage Loan Seller has covenanted in the related Loan Purchase Agreement as to each Mortgage Loan (exclusive of a Non-Serviced Mortgage Loan), that if it cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3) and (6) (if recorded) and (15) of the definition of “Mortgage File” solely because of a delay caused by the public recording or
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filing office where such document or instrument has been delivered for recordation or filing, as applicable, a copy of the original certified by the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted for recording, shall be forwarded to the Custodian. Each assignment referred to in the prior paragraph that is recorded and the file copy of each UCC-3 assignment referred to in the previous paragraph shall reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the applicable Mortgage Loan Seller or its designee, in which case the applicable Mortgage Loan Seller shall deliver or cause the delivery of the recorded/filed original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the Custodian shall obtain therefrom a certified copy of the recorded original. On a monthly basis, at the expense of the applicable Mortgage Loan Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof.
If the Custodian has received written notice that any of the aforementioned assignments is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Custodian shall direct the applicable Mortgage Loan Seller (pursuant to the Loan Purchase Agreement) promptly to prepare or cause the preparation of a substitute therefor or to cure such defect, as the case may be, and the Mortgage Loan Seller shall record or file, or cause AMO to record or file, or with respect to any assignments the Custodian has agreed to file as described above, to deliver to the Custodian the substitute or corrected document. The Custodian shall upon receipt from the applicable Mortgage Loan Seller cause the same to be duly recorded or filed, as appropriate.
(d) In connection with the Depositor’s assignment pursuant to Section 2.01(a) of this Agreement, except with respect to Non-Serviced Mortgage Loans, the Depositor shall direct the applicable Mortgage Loan Seller (pursuant to the related Loan Purchase Agreement) to deliver to and deposit (or cause to be delivered and deposited) with the Master Servicer within five (5) Business Days after the Closing Date, (i) all documents and records not otherwise required to be contained in the Mortgage File that (A) relate to the origination and/or servicing and administration of the Mortgage Loans or any related Serviced Companion Loan, (B) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Certificates) and the Serviced Companion Loans or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans and the Serviced Companion Loans or holders of interests therein and (C) are in the possession or under the control of the applicable Mortgage Loan Seller, together with (ii) all unapplied Escrow Payments and reserve funds in the possession or under the control of the applicable Mortgage Loan Seller that relate to such Mortgage Loans or any related Serviced Companion Loans, provided that copies of any document in the Mortgage File and any other document, record or item referred to above in this sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided, further, that the applicable Mortgage Loan Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data, or internal worksheets, memoranda, communications or evaluations. In addition, attached as Exhibit P to this Agreement is the Supplemental Servicer Schedule. The Master Servicer shall hold all such
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documents, records and funds on behalf of the Trustee in trust for the benefit of the Certificateholders (and, insofar as they also relate to the Serviced Companion Loan, on behalf of and for the benefit of the applicable Companion Loan Holder).
(e) In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall deliver, and hereby represents and warrants that it has delivered, to the Custodian and the Master Servicer, on or before the Closing Date, a fully executed original counterpart of each Loan Purchase Agreement, as in full force and effect, without amendment or modification, on the Closing Date.
(f) The Custodian with respect to the Serviced Whole Loans, shall also hold the related Mortgage File for the use and benefit of the Companion Loan Holders.
(g) The parties to this Agreement acknowledge and agree, with respect to each Mortgage Loan that is part of a Serviced Whole Loan and each Non-Serviced Mortgage Loan, that the Trust assumes the obligations and rights of the holder of such Mortgage Loan under the respective Co-Lender Agreement and any applicable Other Pooling and Servicing Agreement.
(h) It is not intended that this Agreement create a partnership or a joint-stock association.
(i) With respect to the Mortgage Loans secured by the Mortgaged Properties identified as Starwood Capital Extended Stay Portfolio, Hampton Inn – Point Loma, Hilton Arden West, Holiday Inn Express, Renaissance Casa de Palmas, Wyndham Deerfield Beach Resort, Staybridge Suites Brandywine, Country Inn & Suites Baltimore North and Best Western Plus at the Falls on the Mortgage Loan Schedule, which are each subject to one or more franchise agreements, each with a related comfort letter in favor of the respective Mortgage Loan Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trust or otherwise have a new comfort letter issued in the name of the Trust, the related Mortgage Loan Seller or its designee will be required in the related Loan Purchase Agreement to provide any such required notice or make any such required request to the related franchisor (with a copy of such notice or request to the Master Servicer) within 45 days of the Closing Date (or any shorter period if required by the applicable comfort letter), and the Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).
Section 2.02 Acceptance by the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee, by its execution and delivery of this Agreement, hereby accepts receipt, directly or through the Custodian on its behalf, of (i) the Mortgage Loans and all documents delivered to it that constitute portions of the related Mortgage Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or the Custodian on its behalf holds and will hold such documents and any other documents subsequently received by it that constitute portions of the Mortgage Files, and that the Custodian on behalf of the Trustee holds and will hold the Mortgage
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Loans and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders and, if applicable, the Companion Loan Holders pursuant to Section 2.01(f) of this Agreement. With respect to each Serviced Whole Loan, the Custodian shall also hold the portion of such Mortgage File that relates to the Companion Loan in such Serviced Whole Loan in trust for the use and benefit of the related Companion Loan Holder. In connection with the foregoing, the Custodian hereby certifies to each of the other parties hereto, the applicable Mortgage Loan Seller, each Underwriter and each Initial Purchaser that, as to each Mortgage Loan, (i) all documents specified in clause (l) of the definition of “Mortgage File” are in its possession or the possession of the Custodian on its behalf, and (ii) the original Note(s) (or, if accompanied by a lost note affidavit, the copy of such Note(s)) received by it or the Custodian with respect to such Mortgage Loan has been reviewed by it or by the Custodian on its behalf and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Mortgagor), (B) appears to have been executed (where appropriate) and (C) purports to relate to such Mortgage Loan.
(b) On or about the 60th day following the Closing Date (and, if any exceptions are noted, again on or about the 90th day following the Closing Date and monthly thereafter until the earliest of (i) the second anniversary of the Closing Date, (ii) the day on which all material exceptions have been removed and (iii) the day on which the applicable Mortgage Loan Seller has repurchased or substituted for the last affected Mortgage Loan), the Custodian shall review the documents delivered to it with respect to each Mortgage Loan, and the Custodian shall, subject to Section 2.01(c), Section 2.02(c) and Section 2.02(d) of this Agreement and the terms of the respective Loan Purchase Agreements, certify in writing (substantially in the form of Exhibit N to this Agreement) to each of the other parties hereto, the applicable Mortgage Loan Seller, each Underwriter and each Initial Purchaser (and upon request, in the case of a Serviced Whole Loan, to the related Companion Loan Holder) that, as to each Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification, which exception report (and any updates thereto) shall also be electronically delivered in Excel-compatible format): (i) all documents specified in clauses (1), (2), (3), (4) (other than with respect to a Non-Serviced Mortgage Loan), (5), (7), (15) and (20) (for any Mortgage Loan that is part of a Whole Loan) of the definition of “Mortgage File” are in its possession or the related Mortgage Loan Seller has otherwise satisfied the delivery requirements in accordance with the related Loan Purchase Agreement; (ii) the recordation/filing contemplated by Section 2.01(c) of this Agreement has been completed (based solely on receipt by the Custodian of the particular recorded/filed documents); (iii) all documents received by it or the Custodian with respect to such Mortgage Loan have been reviewed by it or the Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Mortgagor), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a) of this Agreement and this Section 2.02(b) and only as to the foregoing documents (together with any Loan Agreement that has been delivered by the related Mortgage Loan Seller), the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv) and (v)(B) of the definition of “Mortgage Loan Schedule” accurately reflects the information set forth in the Mortgage File. With respect to the items listed in clauses (2), (3), (4) and (6) of the definition of “Mortgage File” if the original of such document is not in the Custodian’s possession because it has not
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been returned from the applicable recording office, then the Custodian’s certification prepared pursuant to this Section 2.02(b) should indicate the absence of such original. If the Custodian’s obligation to deliver the certifications contemplated in this subsection terminates because two years have elapsed since the Closing Date, the Custodian shall deliver a comparable certification to any party hereto, the related Companion Loan Holder and any Underwriter and any Initial Purchaser on request.
(c) It is acknowledged that none of the Trustee, the Master Servicer, the Special Servicer, the Certificate Administrator or the Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Master Servicer, the Special Servicer, the Certificate Administrator or the Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Custodian’s review of the Mortgage Files is limited solely to confirming that the documents specified in clauses (1), (2), (3), (4) (other than with respect to a Non-Serviced Mortgage Loan), (5), (7), (15) and (20) (for any Mortgage Loan that is part of a Whole Loan) of the definition of “Mortgage File” have been received, appear regular on their face and such additional information as will be necessary for delivering the certifications required by Section 2.02(a) and 2.02(b) of this Agreement.
(e) If, after the Closing Date, the Depositor comes into possession of any documents or records that constitute part of the Mortgage File or Servicing File for any Mortgage Loan, the Depositor shall promptly deliver such document to the Custodian with a copy to the Master Servicer (if it constitutes part of the Servicing File).
Section 2.03 Mortgage Loan Sellers’ Repurchase, Substitution or Cures of Mortgage Loans for Document Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) If (i) any party hereto (A) discovers or receives notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or (B) discovers or receives notice alleging a breach of any representation or warranty of the applicable Mortgage Loan Seller made pursuant to Section 6(c) of the related Loan Purchase Agreement with respect to any Mortgage Loan (a “Breach”), or (ii) the Special Servicer or the Depositor receives a Repurchase Communication of a request or demand for repurchase or replacement of any Mortgage Loan alleging a Document Defect or Breach (any such request or demand, a “Repurchase Request”), then such Person shall give prompt written notice thereof to the applicable Mortgage Loan Seller, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event),
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the other parties hereto, any related Companion Loan Holder (if applicable) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider (to the extent notice has not previously been delivered to such Persons pursuant to this sentence). If any such Document Defect or Breach materially and adversely affects, or any such Document Defect is deemed in accordance with Section 2.03(b) of this Agreement to materially and adversely affect, the value of the related Mortgage Loan (or any related REO Property) or the interests of the Certificateholders therein or causes any Mortgage Loan to fail to be a Qualified Mortgage, (then such Document Defect shall constitute a “Material Document Defect” or such Breach shall constitute a “Material Breach”), as the case may be. The Special Servicer shall determine in its reasonable, good faith discretion and in accordance with the Servicing Standard, with respect to any affected Mortgage Loan or REO Mortgage Loan, whether a Document Defect is a Material Document Defect or a Breach is a Material Breach. If such Document Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer shall give prompt written notice thereof to the applicable Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event). Promptly upon becoming aware of any Material Document Defect or Material Breach (including through a written notice given by the Master Servicer or the Special Servicer, as provided above), the Master Servicer, if relating to a Non-Specially Serviced Loan, or the Special Servicer, if relating to a Specially Serviced Loan, shall require the applicable Mortgage Loan Seller, not later than 90 days from the earlier of the applicable Mortgage Loan Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (or, in the case of a Material Document Defect or Material Breach relating to a Mortgage Loan not being a Qualified Mortgage, not later than 90 days from any party discovering such Material Document Defect or Material Breach), to cure the same in all material respects (which cure shall include payment of losses and any Additional Trust Fund Expenses associated therewith) or, if such Material Document Defect or Material Breach, as the case may be, cannot be cured within such 90 day period, either to (before the end of such 90 day period) (i) repurchase the affected Mortgage Loan or any related REO Property (or the Trust’s interest therein with respect to any Mortgage Loan that is part of a Whole Loan) at the applicable Purchase Price by wire transfer of immediately available funds to the Collection Account or (ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith, all in conformity with the applicable Loan Purchase Agreement and this Agreement; provided, however, that if (i) such Material Document Defect or Material Breach is capable of being cured but not within such 90 day period, (ii) such Material Document Defect or Material Breach is not related to any Mortgage Loan’s not being a Qualified Mortgage and (iii) the applicable Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within such 90 day period, then such Mortgage Loan Seller shall have an additional 90 days to complete such cure or, in the event of a failure to so cure, to complete such repurchase or substitution (it being understood and agreed that, in connection with such Mortgage Loan Seller’s receiving such additional 90 day period, such Mortgage Loan Seller shall deliver an Officer’s Certificate to the Trustee, the Master Servicer, the Special Servicer and the Certificate Administrator setting forth the reasons such Material Document Defect or
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Material Breach is not capable of being cured within the initial 90 day period and what actions such Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that such Mortgage Loan Seller anticipates that such Material Document Defect or Material Breach will be cured within such additional 90 day period); and provided, further, that, if any such Material Document Defect is still not cured after the initial 90 day period and any such additional 90 day period solely due to the failure of such Mortgage Loan Seller to have received the recorded document, then such Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and substitution obligations in respect of such Document Defect so long as such Mortgage Loan Seller certifies to the Trustee, the Master Servicer, the Special Servicer and the Certificate Administrator every 30 days thereafter that the Document Defect is still in effect solely because of its failure to have received the recorded document and that such Mortgage Loan Seller is diligently pursuing the cure of such defect (specifying the actions being taken), except that no such deferral of cure, repurchase or substitution may continue beyond the date that is 18 months following the Closing Date. If the affected Mortgage Loan is to be repurchased, the Master Servicer shall designate the Collection Account as the account to which funds in the amount of the Purchase Price are to be wired. If the affected Mortgage Loan is to be substituted for, the Master Servicer shall designate the Collection Account as the account to which funds in the amount of the Substitution Shortfall Amount are to be wired. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis. Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Monthly Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-Off Date and received by the Master Servicer or the Special Servicer on behalf of the Trust on or prior to the related date of repurchase or substitution, shall be part of the Trust Fund. Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Monthly Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the Master Servicer or the Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by the Master Servicer to the Mortgage Loan Seller effecting the related repurchase or substitution promptly following receipt.
If the Special Servicer or the Depositor receives a Repurchase Communication of a withdrawal of a Repurchase Request of which notice has been previously received or given and which withdrawal is by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”), such party shall give written notice of such Repurchase Request Withdrawal to the applicable Mortgage Loan Seller, the other parties hereto, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), any Companion Loan Holder (if applicable) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider (to the extent notice has not previously been delivered to such Persons pursuant to this sentence). If the Special Servicer receives a Repurchase Communication that any Mortgage Loan that was subject of a Repurchase Request has been repurchased or replaced (a “Repurchase”), or that such Repurchase Request has been rejected (a “Repurchase Request Rejection”), then the Special Servicer shall (in accordance with the following paragraph) give written notice of such Repurchase or Repurchase Request Rejection to the Depositor, the applicable Mortgage Loan Seller unless it is the entity that has repurchased or replaced the
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subject Mortgage Loan or rejected such Repurchase Request, and unless it is the party that notified the Special Servicer thereof, the Certificate Administrator and the Trustee.
Each notice of a Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection required to be given by a party pursuant to this Section 2.03(a) (each, a “15Ga-1 Notice”) shall be given no later than ten (10) Business Days after receipt of a Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable, and shall include (i) the identity of the related Mortgage Loan, (ii) the date that the Repurchase Communication regarding the Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection was received, as applicable, (iii) if known, the basis for the Repurchase Request (as asserted in the Repurchase Request) and (iv) in the case of 15Ga-1 Notices provided by the Special Servicer with respect to a Repurchase Request, a statement as to whether the Special Servicer currently plans to pursue such Repurchase Request.
If the Trustee, the Certificate Administrator, the Master Servicer, the Operating Advisor or the Custodian receives a Repurchase Communication of a Repurchase Request, a Repurchase Request Withdrawal, a Repurchase or a Repurchase Request Rejection, then such party shall promptly forward such Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection to the Special Servicer (with respect to any Mortgage Loan or REO Mortgage Loan) and, with respect to any Mortgage Loan, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative, and include the following statement in the related correspondence: “This is a Repurchase Communication regarding [a “Repurchase Request”] [a “Repurchase Request Withdrawal”] [a “Repurchase”] [a “Repurchase Request Rejection”] under Section 2.03(a) of the Pooling and Servicing Agreement relating to the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass Through Certificates, Series 2015-C3, requiring action by you as the recipient of such [Repurchase Request] [Repurchase Request Withdrawal] [Repurchase] [Repurchase Request Rejection] thereunder”. Upon receipt of any Repurchase Communication of a Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection by the Special Servicer pursuant to the foregoing provisions of this paragraph, the Special Servicer shall be deemed to be the recipient of such Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, and the Special Servicer shall comply with the notice procedures set forth in the preceding paragraphs of this Section 2.03(a) with respect to such Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection.
No Person that is required to provide a 15Ga-1 Notice pursuant to this Section 2.03(a) (a “15Ga-1 Notice Provider”) shall be required to provide any information in a 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. Each Loan Purchase Agreement will provide that (i) any 15Ga-1 Notice provided pursuant to this Section 2.03(a) is so provided only to assist the related Mortgage Loan Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to this Section 2.03(a) by a 15Ga-1 Notice Provider in a 15Ga-1 Notice shall be deemed to constitute a waiver or defense to
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the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to the related Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a 15Ga-1 Notice.
On or before the Closing Date, the Depositor shall deliver to the Master Servicer a copy of each Loan Purchase Agreement, which the Master Servicer shall provide to each Sub-Servicer.
With respect to each Non-Serviced Mortgage Loan, the parties to this Agreement agree that if a “material document defect” exists with respect to the related Non-Serviced Companion Loan under the Other Pooling and Servicing Agreement that governs servicing of the related Whole Loan and the related Mortgage Loan Seller (or other responsible repurchasing entity) repurchases such related Companion Loan pursuant to or as contemplated by such Other Pooling and Servicing Agreement, then such Mortgage Loan Seller shall also repurchase such Non-Serviced Mortgage Loan; provided, however, that such repurchase obligation does not apply to any “material document defect” related solely to the promissory note for such Companion Loan.
(b) Subject to the applicable Mortgage Loan Seller’s right to cure as contemplated in this Section 2.03, and further subject to Section 2.01(b) and Section 2.01(c) of this Agreement, failure of such Mortgage Loan Seller to deliver the documents referred to in clauses (1), (2), (7), (8), (18) and (19) in the definition of “Mortgage File” in accordance with this Agreement and the applicable Loan Purchase Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except a deemed Material Document Defect described above) shall be considered to be a Material Document Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation.
(c) In connection with any repurchase of, or substitution of a Qualified Substitute Mortgage Loan for, a Mortgage Loan pursuant to this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of them of a receipt executed by the applicable Mortgage Loan Seller evidencing such repurchase or substitution, all portions of the Mortgage File and other documents (including, without limitation, the Servicing File), and all escrows and reserve funds, pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the applicable Mortgage Loan Seller or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security thereof to the Mortgage Loan Seller or its designee; provided that such tender by the Trustee and the Custodian shall be conditioned upon its receipt (and such receipt shall be deemed to be the Master Servicer’s direction to the Trustee and the Custodian to so tender) from
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the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution have been satisfied. The Master Servicer shall, and is hereby authorized and empowered by the Trustee to, prepare, execute and deliver in its own name, on behalf of the Certificateholders and the Trustee or any of them, the endorsements and assignments contemplated by this Section 2.03(c), and such other instruments as may be necessary or appropriate to transfer title to an REO Property (including with respect to a Non-Serviced Mortgage Loan) in connection with the repurchase of, or substitution for, an REO Mortgage Loan and the Trustee shall execute and deliver any powers of attorney necessary to permit the Master Servicer to do so; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or any of its agents or subcontractors.
(d) The related Loan Purchase Agreement provides the sole remedies available to the Certificateholders, or the Certificate Administrator or the Trustee on behalf of the Certificateholders, respecting any Document Defect or Breach with respect to any Mortgage Loan.
Section 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to the Master Servicer, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification (except where the failure to qualify would not have a materially adverse effect on the consummation of any transactions contemplated by this Agreement); the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement; the Depositor has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
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(iii) Neither the execution and delivery by the Depositor of this Agreement nor the compliance by the Depositor with the provisions hereof, nor the consummation by the Depositor of the transactions contemplated by this Agreement, will (A) conflict with or result in a breach of, or constitute a default under, the certificate of incorporation or by-laws of the Depositor or, after giving effect to the consents or taking of the actions contemplated by clause (B) of this paragraph (iii), any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties, or any of the provisions of any indenture or agreement or other instrument to which the Depositor is a party or by which it is bound or result in the creation or imposition of any lien, charge or encumbrance upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument or (B) require any consent of, notice to, or filing with any person, entity or governmental body, which has not been obtained or made by the Depositor, except where, in any of the instances contemplated by clause (A) above or this clause (B), the failure to do so will not have a material and adverse effect on the consummation of any transactions contemplated by this Agreement;
(iv) There is no litigation, charge, investigation, action, suit or proceeding pending or, to the Depositor’s knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality the outcome of which could be reasonably expected to materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement;
(v) The Depositor is not transferring the Mortgage Loans to the Trustee with any intent to hinder, delay or defraud its present or future creditors;
(vi) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Depositor are pending or contemplated;
(vii) Immediately prior to the transfer of the Mortgage Loans to the Trustee for the benefit of the Certificateholders pursuant to this Agreement, the Depositor had such right, title and interest in and to each Mortgage Loan as was transferred to it by the related Mortgage Loan Seller pursuant to the related Loan Purchase Agreement;
(viii) The Depositor has not transferred any of its right, title and interest in and to the Mortgage Loans (as such was transferred to it by the Mortgage Loan Sellers pursuant to the Loan Purchase Agreements) to any Person other than the Trustee; and
(ix) The Depositor is transferring all of its right, title and interest in and to the Mortgage Loans (as such was transferred to it by the Mortgage Loan Sellers pursuant to the Loan Purchase Agreements) to the Trustee for the benefit of the Certificateholders free and clear of any and all liens, pledges, charges, security interests and other encumbrances created by or through the Depositor.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate
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Administrator (or upon written notice thereof from any Certificateholder or any Companion Loan Holder), without implying any duty of any party to investigate or discover, of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or Whole Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, each Certifying Certificateholder, the Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
Section 2.05 Representations, Warranties and Covenants of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to the Depositor, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date, that:
(i) The Master Servicer is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America, and the Master Servicer is in compliance with the laws of the jurisdiction in which each Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not violate the Master Servicer’s organizational documents or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(iii) The Master Servicer has the full power and authority to enter into and consummate all transactions to be performed by it as contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, receivership, insolvency, liquidation, fraudulent transfer, reorganization, moratorium and other laws affecting the enforcement of creditors’ (including bank creditors’) rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law,;
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(v) The Master Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement do not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Master Servicer’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(vi) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer that would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;
(vii) Each officer or employee of the Master Servicer that has responsibilities concerning the servicing and administration of Mortgage Loans and the Serviced Companion Loans is covered by errors and omissions insurance in the amounts and with the coverage required by Section 3.08(c) of this Agreement or the Master Servicer self-insures for such errors and omissions coverage in compliance with the requirements of Section 3.08(c) of this Agreement; and
(viii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Master Servicer of the transactions contemplated by this Agreement, except for those consents, approvals, authorizations and orders that previously have been obtained and those filings and registrations that previously have been completed and except for consents, approvals, authorizations, orders, filings or registrations which are not required in order for the Master Servicer to enter into this Agreement but may be required (and if so required, will be obtained) in connection with the Master Servicer’s subsequent performance of this Agreement.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate Administrator, without imposing any duty on any party to investigate (or upon written notice thereof from any Certificateholder or any Serviced Companion Loan Holder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Serviced Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or Serviced Whole Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, each Certifying Certificateholder and the Serviced Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
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Section 2.06 Representations, Warranties and Covenants of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to, and covenants with, the Trustee, for its own benefit and the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to and with the Depositor and the Master Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in good standing as a limited liability company under the laws of Delaware, and the Special Servicer is in compliance with the laws of the jurisdiction in which each Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special Servicer, and the performance and compliance with the terms of this Agreement by the Special Servicer, do not (A) violate the Special Servicer’s organizational documents, operating agreement or by–laws or (B) constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect either the ability of the Special Servicer to perform its obligations under this Agreement or the financial condition of the Special Servicer;
(iii) The Special Servicer has the full power and authority to enter into and consummate all transactions to be performed by it as contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, receivership, insolvency, liquidation, fraudulent transfer, reorganization, moratorium and other laws affecting the enforcement of creditors’ (including bank creditors’) rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement do not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Special Servicer’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Special Servicer to perform its obligations under this Agreement or the financial condition of the Special Servicer;
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(vi) No litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer that would prohibit the Special Servicer from entering into this Agreement or, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Special Servicer to perform its obligations under this Agreement or the financial condition of the Special Servicer;
(vii) Each officer or employee of the Special Servicer that has or, following a transfer of servicing responsibilities to the Special Servicer pursuant to Section 3.22 of this Agreement, would have, responsibilities concerning the servicing and administration of Mortgage Loans and the Serviced Companion Loans is covered by errors and omissions insurance in the amounts and with the coverage required by Section 3.08(c) of this Agreement or the Special Servicer self-insures for such errors and omissions coverage in compliance with the requirements of Section 3.08(c) of this Agreement; and
(viii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Special Servicer of the transactions contemplated by this Agreement, except for those consents, approvals, authorizations and orders that previously have been obtained and those filings and registrations that previously have been completed and except for consents, approvals, authorizations, orders, filings or registrations which are not required in order for the Special Servicer to enter into this Agreement but may be required (and if so required, will be obtained) in connection with the Special Servicer’s subsequent performance of this Agreement.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate Administrator (or upon written notice thereof from any Certificateholder or any Serviced Companion Loan Holder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Serviced Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, each Certifying Certificateholder, the Serviced Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
Section 2.07 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants for the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the Certificate Administrator, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America; the Trustee possesses and shall continue to possess all requisite authority, power, licenses, permits,
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franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;
(ii) the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not violate the Trustee’s articles of association or by laws or shareholders’ resolutions or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Trustee is a party or which may be applicable to the Trustee or any of its assets;
(iii) except to the extent that the laws of any jurisdiction in which a part of the Trust Fund may be located require that a co-trustee or separate trustee be appointed to act with respect to such property as contemplated by Section 8.08 of this Agreement, the Trustee has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by (A) bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and (B) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(v) the Trustee is not in violation of, and the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Trustee or might have consequences that would materially affect the performance of its duties hereunder or thereunder;
(vi) no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Trustee of this Agreement or if required, such approval has been obtained prior to the Closing Date; and
(vii) no litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate
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Administrator, without imposing any duty on any party to investigate (or upon written notice thereof from any Certificateholder or any Companion Loan Holder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or Serviced Whole Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, each Certifying Certificateholder, the Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
Section 2.08 Representations and Warranties of the Certificate Administrator.
(a) The Certificate Administrator hereby represents and warrants for the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the Trustee, as of the Closing Date, that:
(i) The Certificate Administrator is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America; the Certificate Administrator possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;
(ii) the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not violate the Certificate Administrator’s articles of association or by laws or shareholders’ resolutions or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Certificate Administrator is a party or which may be applicable to the Certificate Administrator or any of its assets;
(iii) the Certificate Administrator has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Certificate Administrator, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by (A) bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and (B) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(v) the Certificate Administrator is not in violation of, and the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state,
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municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Certificate Administrator or might have consequences that would materially affect the performance of its duties hereunder or thereunder;
(vi) no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Certificate Administrator of this Agreement or if required, such approval has been obtained prior to the Closing Date; and
(vii) no litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate Administrator, without imposing any duty on any party to investigate (or upon written notice thereof from any Certificateholder or any Companion Loan Holder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder, the Master Servicer, the Special Servicer or the Certificate Administrator in any Mortgage Loan or Serviced Whole Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, each Certifying Certificateholder, the Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
Section 2.09 Representations, Warranties and Covenants of the Operating Advisor.
(a) The Operating Advisor hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders and the Serviced Companion Loan Holders, and to the Depositor, the Master Servicer, the Special Servicer and the Certificate Administrator, as of the Closing Date, that:
(i) The Operating Advisor is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of Delaware, and the Operating Advisor is in compliance with the laws of the jurisdiction in which each Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Operating Advisor, and the performance and compliance with the terms of this Agreement by the Operating Advisor, do not violate the Operating Advisor’s organizational documents or constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is
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a party or that is applicable to it or any of its assets, in each case, which does or is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement;
(iii) The Operating Advisor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Operating Advisor, enforceable against the Operating Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, receivership, insolvency, liquidation, fraudulent transfer, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(v) The Operating Advisor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement do not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Operating Advisor’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Operating Advisor to perform its obligations under this Agreement;
(vi) No litigation is pending or, to the best of the Operating Advisor’s knowledge, threatened against the Operating Advisor that would prohibit the Operating Advisor from entering into this Agreement or, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement; and
(vii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Operating Advisor of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the Closing Date, and which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a) above shall survive the execution and delivery of this Agreement. Upon discovery by the Depositor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate Administrator (or upon written notice thereof from any Certificateholder or any Companion Loan Holder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder, the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or Serviced Whole Loan, the party discovering such breach shall give prompt written notice to the
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other parties hereto, each Certifying Certificateholder, the Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative.
Section 2.10 Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery of the related Mortgage Files to the Custodian (to the extent the documents constituting the Mortgage Files are actually delivered to the Custodian), subject to the provisions of Section 2.01 and Section 2.02 of this Agreement and, concurrently with such delivery, (i) the Trustee acknowledges and hereby declares that it holds the Mortgage Loans (excluding Excess Interest) for the benefit of the Holders of the Class R Certificates (in respect of the Lower-Tier Residual Interest) and the Lower-Tier REMIC, (ii) the Certificate Administrator acknowledges the issuance of the Lower-Tier Regular Interests and the Lower-Tier Residual Interest in exchange for the assets of the Lower-Tier REMIC, (iii) the Depositor hereby conveys all right, title and interest in and to the Lower-Tier Regular Interests and other property constituting the Upper-Tier REMIC to the Trustee, receipt of which is hereby acknowledged, and the Trustee acknowledges and hereby declares that it holds the same on behalf of the Holders of the Certificates (other than the Class Z Certificates) and the Upper-Tier REMIC, and (iv) the Certificate Administrator acknowledges that it has executed and caused to be authenticated and delivered to and upon the order of the Depositor, (A) in exchange for the assets of the Upper-Tier REMIC, the Regular Certificates and the Upper-Tier Residual Interest, evidencing ownership of the Upper-Tier REMIC, and (B) the Class R Certificates, representing the Lower-Tier Residual Interest and the Upper-Tier Residual Interest, registered in the names set forth in such order and duly authenticated by the Certificate Administrator.
(b) The Trustee acknowledges the assignment of the Excess Interest to the Grantor Trust. The Certificate Administrator acknowledges that it has executed and caused to be authenticated and delivered to and upon the order of the Depositor the Class Z Certificates in exchange for the Excess Interest. Accordingly, the Class Z Certificates are hereby designated as undivided beneficial interests in the portion of the Trust Fund consisting of Excess Interest and the Excess Interest Distribution Account and proceeds thereof, which portions shall be treated as part of a grantor trust within the meaning of subpart E, part I of subchapter J of the Code.
Section 2.11 Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class LA-1, Class LA-2, Class LA-3, Class LA-4, Class LA-SB, Class LA-S, Class LB, Class LC, Class LD, Class LE, Class LF and Class LNR Interests are hereby designated as “regular interests” in the Lower-Tier REMIC within the meaning of Code Section 860G(a)(1), and the Lower-Tier Residual Interest (evidenced by the Class R Certificates) is hereby designated as the sole class of “residual interests” in the Lower-Tier REMIC within the meaning of Code Section 860G(a)(2).
(b) The Regular Certificates are hereby designated as “regular interests” in the Upper-Tier REMIC within the meaning of Code Section 860G(a)(1), and the Upper-Tier
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Residual Interest (evidenced by the Class R Certificates) is hereby designated as the sole class of “residual interests” in the Upper-Tier REMIC within the meaning of Code Section 860G(a)(2).
(c) The Closing Date is hereby designated as the “Startup Day” of the Lower-Tier REMIC and the Upper-Tier REMIC. The “latest possible maturity date” for purposes of Code Section 860G(a)(1) of the Lower-Tier Regular Interests and the Regular Certificates is the Rated Final Distribution Date.
(d) None of the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator shall enter into any arrangement by which the Trust Fund will receive a fee or other compensation for services other than as specifically contemplated herein.
(e) The Class Z Certificates shall represent undivided beneficial interests in its corresponding portion of the Trust Fund consisting of the Class Z Specific Grantor Trust Assets, which will be treated as part of a “grantor trust” within the meaning of subpart E, part I of subchapter J of the Code.
ARTICLE
III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Master Servicer; Administration of the Mortgage Loans; Sub-Servicing Agreements; Non-Serviced Mortgage Loans.
(a) The Master Servicer (with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans, which will be serviced pursuant to the applicable Other Pooling and Servicing Agreement) that are not Specially Serviced Loans) and the Special Servicer (with respect to the Specially Serviced Loans), each as an independent contractor, shall service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans, which will be serviced pursuant to the applicable Other Pooling and Servicing Agreement) and the Serviced Companion Loans on behalf of the Trust Fund and the Trustee (for the benefit of the Certificateholders or, with respect to each Serviced Whole Loan, for the benefit of the Certificateholders and the related Serviced Companion Loan Holder(s) as a collective whole as if such Certificateholders and Serviced Companion Loan Holder(s) constituted a single lender, subject to the terms and conditions of the Co-Lender Agreements) as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance with: (i) any and all applicable laws; (ii) the express terms of this Agreement, the respective Mortgage Loans or Serviced Whole Loans and, in the case of the Serviced Whole Loans, the related Co-Lender Agreements; and (iii) to the extent consistent with the foregoing, the Servicing Standard. To the extent consistent with the foregoing and subject to any express limitations set forth in this Agreement and any related Co-Lender Agreement or mezzanine loan intercreditor agreement, the Master Servicer and the Special Servicer shall seek to maximize the timely and complete recovery of principal and interest, on the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Serviced Companion Loans. Subject only to the Servicing Standard, the Master Servicer and Special Servicer shall have full power and authority,
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acting alone or, in the case of the Master Servicer only, through Sub-Servicers (subject to paragraph (c) of this Section 3.01 and to Section 3.02 of this Agreement), to do or cause to be done any and all things in connection with such servicing and administration which it may deem consistent with the Servicing Standard and, in its judgment exercised in accordance with the Servicing Standard, in the best interests of the Certificateholders and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Holder(s) constituted a single lender, subject to the terms and conditions of the Co-Lender Agreements), including, without limitation, with respect to each Mortgage Loan and Serviced Companion Loan, (A) to prepare, execute and deliver, on behalf of the Certificateholders, the Serviced Companion Loan Holders, the Trustee, the Certificate Administrator and the Custodian or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien on each Mortgaged Property and related collateral; (ii) subject to Section 3.08, 3.09, 3.10 and 3.24 of this Agreement, any modifications, waivers, consents or amendments to or with respect to any documents contained in the related Mortgage File or defeasance of the Mortgage Loan or Companion Loan; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Mortgage Loans (and related Serviced Companion Loans) and the Mortgaged Properties; and (B) to direct, manage, prosecute and/or defend any action, suit or proceeding of any kind filed in the name of the Trust Fund acting by or through the Master Servicer or the Special Servicer, as applicable, in their respective capacity on behalf of the Trustee or the Trust, subject to clause (i) of the following paragraph. Notwithstanding the foregoing, neither the Master Servicer nor the Special Servicer shall modify, amend, waive or otherwise consent to any change of the terms of any Mortgage Loan or Companion Loan except under the circumstances described in Section 3.08, 3.09, 3.10 and 3.24 of this Agreement or in Section 3.03 of this Agreement. The Master Servicer and Special Servicer shall service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Companion Loans in accordance with applicable law and the terms hereof, the related Mortgage Loan Documents and the Co-Lender Agreements and shall provide to the Mortgagors any reports required to be provided to them thereby.
Subject to Section 3.11 of this Agreement, the Trustee shall, upon the receipt of a written request of a Servicing Officer, execute and deliver to the Master Servicer or Special Servicer any powers of attorney substantially in the form of Exhibit AA-1 to this Agreement or such other form as mutually agreed to by the Trustee and the Master Servicer (in the case of the Master Servicer) or Exhibit AA-2 to this Agreement or such other form as mutually agreed to by the Trustee and the Special Servicer (in the case of the Special Servicer), as applicable, and other documents reasonably acceptable to the Trustee prepared by the Master Servicer and Special Servicer and necessary or appropriate (as certified in such written request) to enable the Master Servicer and Special Servicer to carry out their servicing and administrative duties hereunder. Notwithstanding anything contained herein to the contrary, none of the Master Servicer, the Special Servicer or any Sub-Servicer shall, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s, as applicable, representative capacity, unless prohibited by any requirement of the applicable jurisdiction in which any such action, suit or proceeding is brought and if so prohibited, in the manner required by such jurisdiction (provided that the Master Servicer or the Special Servicer, as applicable, shall then provide five (5) Business Days’ written
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notice to the Trustee of the initiation of such action, suit or proceeding (or such shorter time period as is reasonably required in the judgment of the Master Servicer or the Special Servicer, as applicable, made in accordance with the Servicing Standard) prior to filing such action, suit or proceeding), and shall not be required to obtain the Trustee’s consent or indicate the Master Servicer’s or the Special Servicer’s, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. Each of the Master Servicer, the Special Servicer and any Sub-Servicer shall indemnify the Trustee for any and all costs, liabilities and expenses incurred by the Trustee in connection with the negligent or willful misuse of such powers of attorney by the Master Servicer or the Special Servicer or its agents or subcontractors, as applicable.
(b) Unless otherwise provided in the related Mortgage Loan Documents, the Master Servicer shall apply any partial principal prepayment received on a Mortgage Loan (other than the Non-Serviced Mortgage Loans) or Serviced Companion Loan on a date other than a Due Date, to the principal balance of such Mortgage Loan as of the Due Date immediately following the date of receipt of such partial principal prepayment. Unless otherwise provided in the related Mortgage Loan Documents, the Master Servicer shall apply any amounts received on “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) (which shall not be redeemed by the Master Servicer prior to the maturity thereof) in respect of such a Mortgage Loan or Serviced Companion Loan being defeased pursuant to its terms to the principal balance of and interest on such Mortgage Loan or Serviced Companion Loan as of the Due Date immediately following the receipt of such amounts. If with respect to any Mortgage Loan (or Serviced Whole Loan) the related Mortgage Loan Documents permit the lender to (but do not require the lender to), at its option, prior to an event of default under the related Mortgage Loan (or Serviced Whole Loan), apply amounts held in any reserve account as a prepayment or hold such amounts in a reserve account, the Master Servicer or Special Servicer, as the case may be, shall not apply such amounts as prepayment, and instead shall hold such amounts in the applicable reserve account and may not apply such amounts as a prepayment until the occurrence of an event of default under the related Mortgage Loan (or Serviced Whole Loan); provided that any such amounts may be used, if permitted under the related Mortgage Loan Documents, to defease the related Mortgage Loan (or Serviced Whole Loan) or, upon an event of default under the related Mortgage Loan (or Serviced Whole Loan), to prepay the Mortgage Loan (or Serviced Whole Loan).
(c) The Master Servicer may enter into Sub-Servicing Agreements with third parties with respect to any of its obligations hereunder, provided that (i) any such agreement shall be consistent with the provisions of this Agreement, (ii) any such agreement shall be consistent with the Servicing Standard, (iii) the Depositor has consented to the related Sub-Servicer, (iv) any such agreement shall provide that, following receipt of the applicable Loan Purchase Agreement from the Depositor, the Master Servicer shall provide a copy of the applicable Loan Purchase Agreement to the related Sub-Servicer, and that such Sub-Servicer shall notify the Master Servicer in writing within five (5) Business Days after such Sub-Servicer discovers or receives notice alleging a Document Defect or a Breach or receives a Repurchase Communication of a Repurchase Request, a Repurchase Request Withdrawal, a Repurchase or a Repurchase Request Rejection, (v) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant or an Additional
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Servicer, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party and (vi) the Master Servicer shall notify the applicable Mortgage Loan Seller of any such agreement. Any such Sub-Servicing Agreement may permit the Sub-Servicer to delegate its duties to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Section 3.01(c). The Master Servicer shall pay the servicing fees of any Sub-Servicer and shall provide a copy of each Sub-Servicing Agreement (and any assignment thereof) to the Trustee. Any Sub-Servicing Agreement entered into by the Master Servicer shall provide that it may be assumed by the Trustee, if the Trustee has assumed the duties of the Master Servicer or by any successor Master Servicer without cost or obligation to the assuming party or the Trust Fund, upon the assumption by such party of the obligations of the Master Servicer pursuant to Section 7.02. The Special Servicer may not enter into Sub-Servicing Agreements; provided that, if and to the extent Rialto Capital Advisors, LLC or its successor-in-interest is terminated as Special Servicer by the Controlling Class Representative without cause (i.e., not as a result of a Servicer Termination Event) and Rialto Capital Advisors, LLC or its successor-in-interest otherwise satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement, Rialto Capital Advisors, LLC or its successor-in-interest may be appointed as a sub-special servicer of a successor Special Servicer appointed by the Controlling Class Representative, subject to the consent of the Controlling Class Representative.
Any Sub-Servicing Agreement, and any other transactions or services relating to the Mortgage Loans and/or Serviced Whole Loans involving a Sub-Servicer, shall be deemed to be between the Master Servicer and such Sub-Servicer alone, and the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor, the Trust Fund and the Certificateholders shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to the Sub-Servicer, except as set forth in Section 3.01(d) of this Agreement and no provision herein may be construed so as to require the Trust Fund to indemnify any such Sub-Servicer.
(d) If the Trustee or any successor Master Servicer assumes the obligations of the Master Servicer in accordance with Section 7.02, the Trustee or such successor, as applicable, to the extent necessary to permit the Trustee or such successor, as applicable, to carry out the provisions of Section 7.02, shall, without act or deed on the part of the Trustee or such successor, as applicable, succeed to all of the rights and obligations of the Master Servicer under any Sub-Servicing Agreement entered into by the Master Servicer pursuant to Section 3.01(c) of this Agreement. In such event, the Trustee or the successor Master Servicer, as applicable, shall be deemed to have assumed all of the Master Servicer’s interest therein (but not any liabilities or obligations in respect of acts or omissions of the Master Servicer prior to such deemed assumption) and to have replaced the Master Servicer as a party to such Sub-Servicing Agreement to the same extent as if such Sub-Servicing Agreement had been assigned to the Trustee or such successor Master Servicer, as applicable, except that the Master Servicer shall not thereby be relieved of any liability or obligations under such Sub-Servicing Agreement that accrued prior to the succession of the Trustee or the successor Master Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer, assumes the servicing obligations of the Master Servicer, upon request of the Trustee, or such successor Master Servicer, as applicable, the Master Servicer shall at its own expense deliver or cause to be
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delivered to the Trustee or such successor Master Servicer all documents and records relating to any Sub-Servicing Agreement and the Mortgage Loans then being serviced thereunder and an accounting of amounts collected and held by it, if any, and will otherwise use its reasonable efforts to effect the orderly and efficient transfer of any Sub-Servicing Agreement to the Trustee or the successor Master Servicer, as applicable.
(e) The parties hereto acknowledge that each Serviced Whole Loan is subject to the terms and conditions of the related Co-Lender Agreement and recognize the respective rights and obligations of the Trust, as holder of the related Mortgage Loan, and of the related Companion Loan Holder, including: (i) with respect to the allocation of collections on or in respect of such Whole Loan, and the making of remittances, to the Trust, as holder of the related Mortgage Loan, and to the related Companion Loan Holder(s); (ii) the right of any related Subordinate Companion Loan Holder to purchase the related Mortgage Loan; (iii) with respect to the allocation of expenses and losses relating to such Whole Loan to the Trust, as holder of the related Mortgage Loan, and to the related Companion Loan Holders; (iv) the right of any related Subordinate Companion Loan Holder to cure certain defaults; (v) any and all consent, appointment and approval rights of any related Subordinate Companion Loan Holder prior to a Whole Loan Control Appraisal Event (if applicable, as further set forth in the terms and provisions of the related Co-Lender Agreement); (vi) the consultation rights of the related Companion Loan Holder or its Companion Loan Holder Representative; and (vii) the right of any related Subordinate Companion Loan Holder to post collateral to offset any Appraisal Reduction Amount with respect to the related Whole Loan. With respect to any Serviced Whole Loan, the Master Servicer (if such Serviced Whole Loan is a non-Specially Serviced Loan) or the Special Servicer (if such Serviced Whole Loan has become a Specially Serviced Loan or the related Mortgaged Property has been converted to an REO Property) shall (i) prepare and provide to such Companion Loan Holder all notices, reports, statements and communications to be delivered by the holder of the related Mortgage Loan under the related Co-Lender Agreement; and (ii) perform all duties and obligations to be performed by a servicer and perform all servicing-related duties and obligations to be performed by the holder of the related Mortgage Loan pursuant to the related Co-Lender Agreement and/or as set forth herein. All provisions required to be included herein by the related Co-Lender Agreement are deemed included and shall be enforceable to the same extent as if set forth herein. In the event of any conflict between this Agreement and a Co-Lender Agreement, the terms of such Co-Lender Agreement shall control with respect to the related Serviced Whole Loan.
(f) Notwithstanding anything to the contrary herein, (a) at no time shall the Master Servicer or the Trustee be required to make any P&I Advance on any Companion Loan and (b) if the Mortgage Loan (or the related REO Property) that is part of a Serviced Whole Loan is no longer part of the Trust Fund, neither the Master Servicer nor the Trustee, as the case may be, shall have any obligation to make any Property Advance on such Serviced Whole Loan. If pursuant to the foregoing sentence, the Master Servicer or the Trustee does not intend to make a Property Advance with respect to a Serviced Whole Loan that the Master Servicer or the Trustee would have made if the related Mortgage Loan or REO Property were still part of the Trust Fund, the Master Servicer or the Trustee, as the case may be, shall promptly notify the holder of the related Companion Loan of its intention to no longer make such Property Advances and shall additionally promptly notify such holder of any required Property Advance it would have otherwise made upon becoming aware of the need for such Property Advance. Additionally, at
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the time the Mortgage Loan relating to a Serviced Whole Loan is removed from the Trust Fund, the Master Servicer or the Trustee, as the case may be, shall deliver to the related Companion Loan Holder (or the master servicer of any securitization of the related Companion Loan) (i) a copy of the most recent inspection report and the inspection report for the prior calendar year, (ii) copies of all financial statements collected from the related Mortgagor for the most recent calendar year and the prior calendar year, (iii) a copy of the most recent Appraisal and any other Appraisal done in the prior year and (iv) a copy of all tax and insurance bills for the current calendar year and the prior calendar year.
(g) With respect to the Mortgage Loans set forth on Exhibit HH, to the extent required under any Mortgage Loan Documents, the Master Servicer shall, on behalf of the related lender, maintain a Note register for the related Mortgage Loan in accordance with such Mortgage Loan Documents.
(h) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s and the Special Servicer’s obligations and responsibilities hereunder and the Master Servicer’s and the Special Servicer’s authority with respect to each Non-Serviced Mortgage Loan and each Non-Serviced Companion Loan related to the Non-Serviced Mortgage Loans are limited by and subject to the terms of each Co-Lender Agreement and this Agreement and the rights of an Other Master Servicer and an Other Special Servicer with respect thereto under the applicable Other Pooling and Servicing Agreement. The parties further recognize the respective rights and obligations of an Other Trustee and/or the related Companion Loan Holders (or the representatives thereof) under each respective Co-Lender Agreement including with respect to (i) the allocation of collections on or in respect of a Non-Serviced Whole Loan in accordance with the related Co-Lender Agreement, (ii) the purchase of a Non-Serviced Whole Loan or related Non-Serviced Mortgage Loan by the related Non-Serviced Companion Loan Holder or their designees in accordance with the respective Co-Lender Agreement to the extent provided therein and (iii) any cure rights that a Non-Serviced Companion Loan Holder may exercise, if applicable, in accordance with the related Co-Lender Agreement. The Trustee shall cooperate with the Master Servicer in connection with the enforcement of the rights by the Trustee on behalf of the Trust (as holder of each Non-Serviced Mortgage Loan) under each related Co-Lender Agreement and each applicable Other Pooling and Servicing Agreement. The Master Servicer (with the cooperation of and under the power of attorney granted by, the Trustee) shall take such actions as it shall deem reasonably necessary to facilitate the servicing of each Non-Serviced Companion Loan by the related Other Master Servicer and the related Other Special Servicer, including, but not limited to, delivering appropriate requests for release to the custodian (if any) in order to deliver any portion of the related Mortgage Files to the related Other Master Servicer or Other Special Servicer under the applicable Other Pooling and Servicing Agreement.
To the extent that the Trust, as holder of a Non-Serviced Mortgage Loan for the benefit of the Certificateholders, is entitled to consult regarding, to consent to or approve any modification, waiver or amendment of, or other loan level action related to, such Non-Serviced Mortgage Loan, such consultation, consent or approval rights shall be exercised by the Controlling Class Representative or Operating Advisor, as applicable, as provided in Section 3.01(j) and Section 3.24(i), subject to the consent and/or consultation rights any other applicable Person, as provided in such Sections.
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In addition to such consultation, consent or approval rights, the Controlling Class Representative (if no Control Termination Event has occurred and is continuing) and the Operating Advisor (if a Control Termination Event has occurred and is continuing), on behalf of the Trust, as holder of a Non-Serviced Mortgage Loan for the benefit of the Certificateholders, will have the right (exercisable in its sole discretion), to the extent provided in the related Co-Lender Agreement and/or the applicable Other Pooling and Servicing Agreement, to attend (in-person or telephonically) annual meetings with the related Other Master Servicer or Other Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the related Other Master Servicer or Other Special Servicer, as applicable, for the purpose of discussing servicing issues related to the Non-Serviced Mortgage Loan.
None of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee shall have any obligation or authority to supervise any Other Master Servicer, any Other Special Servicer, any Other Operating Advisor, any Other Certificate Administrator, any Other Trustee or any other party to the applicable Other Pooling and Servicing Agreement or to make Property Advances with respect to any of the Non-Serviced Mortgage Loans or a Non-Serviced Companion Loan related to the Non-Serviced Mortgage Loans. The obligation of the Master Servicer and the Special Servicer to provide information to the Certificate Administrator, the Trustee or any other Person with respect to each Non-Serviced Mortgage Loan and any Non-Serviced Companion Loan related to each Non-Serviced Mortgage Loan is dependent on their receipt of the corresponding information from an Other Master Servicer or an Other Special Servicer, as applicable.
(i) The parties hereto acknowledge that each Non-Serviced Whole Loan is subject to the terms and conditions of the respective Co-Lender Agreement and further acknowledge that, pursuant to the respective Co-Lender Agreement, (i) the related Non-Serviced Mortgage Loan and Non-Serviced Companion Loan are to be serviced and administered by an Other Master Servicer and Other Special Servicer in accordance with the applicable Other Pooling and Servicing Agreement, and (ii) in the event that the applicable Non-Serviced Companion Loan is no longer part of the trust fund created by the applicable Other Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan remains an asset of the Trust Fund, then, as set forth in the related Co-Lender Agreement, the related Whole Loan shall be serviced in accordance with the applicable provisions of the applicable Other Pooling and Servicing Agreement as if such agreement was still in full force and effect with respect to the related Whole Loan, until such time as a new servicing agreement has been agreed to by the parties to the related Co-Lender Agreement in accordance with the provisions of such agreement and confirmation has been obtained from the Rating Agencies that such new servicing agreement would not result in a downgrade, qualification or withdrawal of the then-current ratings of any Class of Certificates then-outstanding and any other requirements applicable to the related Non-Serviced Mortgage Loan.
(j) The parties hereto acknowledge that each Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Co-Lender Agreement. The parties hereto recognize the respective rights and obligations of the “Initial Note Holders” and “Note Holders” under the Co-Lender Agreements for such Non-Serviced Mortgage Loans, including with respect to the allocation of collections and losses on or in respect of such Non-Serviced Mortgage Loans and the related Non-Serviced Companion Loans and the making of payments to the “Initial Note
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Holders” and “Note Holders” in accordance with each such Co-Lender Agreement and the Other Pooling and Servicing Agreement. The parties hereto further acknowledge that, pursuant to the related Co-Lender Agreement(s), each Non-Serviced Mortgage Loan and the related Non-Serviced Companion Loan are to be serviced and administered by the related Other Master Servicer and the related Other Special Servicer in accordance with the related Other Pooling and Servicing Agreement. Although each Non-Serviced Mortgage Loan is not serviced and administered hereunder, the Master Servicer and the Special Servicer hereunder for each such Non-Serviced Mortgage Loan shall have certain duties as set forth herein and shall constitute the “Master Servicer” and “Special Servicer” hereunder with respect to each such Non-Serviced Mortgage Loan.
If there are at any time amounts due from the Trust, as holder of each Non-Serviced Mortgage Loan, to any party under the related Co-Lender Agreement or the applicable Other Pooling and Servicing Agreement, the Master Servicer shall pay such amounts out of the Collection Account. If a party to the applicable Other Pooling and Servicing Agreement related to a Non-Serviced Mortgage Loan requests the Master Servicer, Special Servicer, Trustee, Certificate Administrator or Custodian to consult regarding, consent to or approve a modification, waiver or amendment of, or other loan-level action related to, such Non-Serviced Mortgage Loan (and a modification, waiver or amendment of the applicable Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement shall not be subject to the operation of this sentence but shall instead be subject to the operation of the second succeeding sentence), then the Master Servicer shall promptly forward any such request it receives to the Special Servicer and the Special Servicer shall promptly deliver a copy of such request it receives (from the Master Servicer or directly from a party to the applicable Other Pooling and Servicing Agreement) to the Controlling Class Representative (with respect to any consent rights, if no Control Termination Event has occurred and is continuing, and with respect to any consultation rights, if no Consultation Termination Event has occurred) or the Operating Advisor (with respect to any consultation rights, if a Consultation Termination Event has occurred), and the Controlling Class Representative or Operating Advisor (as applicable) shall exercise such right of consultation or consent, as applicable, as provided in Section 3.24(i); provided, however, that (i) insofar as any other Person (including without limitation the Controlling Class Representative or the Operating Advisor) would have consent and/or consultation rights hereunder with respect to a similar modification, waiver or amendment of, or other loan level action related to, a Mortgage Loan that is a Serviced Mortgage Loan, such Person shall likewise have the same consent and/or consultation rights, subject to the same procedures, conditions and/or restrictions, with respect to such modification, waiver or amendment of, or other loan level action related to, such Non-Serviced Mortgage Loan as set forth in this Agreement and (ii) if such Non-Serviced Mortgage Loan were serviced hereunder and such action would not be permitted without Rating Agency Confirmation, then the Controlling Class Representative shall not exercise such right of consent without first having received such Rating Agency Confirmation (payable at the expense of the party requesting such approval, if a Certificateholder or a party to this Agreement, otherwise from the Collection Account). If a Responsible Officer of the Trustee receives actual notice of a “servicer termination event” under the applicable Other Pooling and Servicing Agreement, then the Trustee shall notify the Master Servicer, the Special Servicer and the Controlling Class Representative (in writing), and the Master Servicer and the Special Servicer shall act in
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accordance with the instructions of (prior to the occurrence of a Control Termination Event) the Controlling Class Representative in accordance with the applicable Other Pooling and Servicing Agreement with respect to such termination event (provided that the Master Servicer and the Special Servicer shall only be required to comply with such instructions if such instructions are in accordance with the applicable Other Pooling and Servicing Agreement and not inconsistent with this Agreement); provided that, if such instructions are not provided within a reasonable time period (not to exceed ten (10) Business Days or such lesser response time as is afforded under the applicable Other Pooling and Servicing Agreement) or if the Master Servicer is not permitted by the applicable Other Pooling and Servicing Agreement to follow such instructions or if a Control Termination Event has occurred, then the Master Servicer shall take such action or inaction (to the extent permitted by the applicable Other Pooling and Servicing Agreement), as directed in writing by the Holders of the Certificates entitled to a majority of the Voting Rights (such direction communicated to the Master Servicer by the Certificate Administrator upon receipt) within a reasonable period of time that does not exceed such response time as is afforded under the applicable Other Pooling and Servicing Agreement. If the Trustee receives a request from any party to the applicable Other Pooling and Servicing Agreement for consent to or approval of a modification, waiver or amendment of the applicable Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement, or the adoption of any servicing agreement that is the successor to and/or in replacement of the applicable Other Pooling and Servicing Agreement in effect as of the Closing Date or a change in servicer under the applicable Other Pooling and Servicing Agreement, then the Trustee (if it shall have received a prior Rating Agency Confirmation from each Rating Agency (at the expense of the party requesting such approval of the Trustee, if a Certificateholder or a party to this Agreement, otherwise from the Collection Account) with respect to such consent or approval) shall grant or withhold such consent or approval at the written direction of the Other Master Servicer or Other Special Servicer under the related Other Pooling and Servicing Agreement; provided that unless a Control Termination Event has occurred and is continuing, the Other Master Servicer or Other Special Servicer, as applicable, shall provide such written direction only with the consent of the Controlling Class Representative, and the written direction shall only be valid upon receipt of such consent. The Trustee shall be entitled to rely without investigation on the written direction it receives from the Other Master Servicer or the Other Special Servicer, as applicable. Prior to granting or withholding any such consent, the Trustee shall not take any action and shall not be liable for failing to take any action except upon obtaining such consent and direction. During the continuation of any termination event under the applicable Other Pooling and Servicing Agreement, each of the Trustee, the Master Servicer and the Special Servicer shall have the right (but not the obligation) to take all actions to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies, of the Trust (including the institution and prosecution of all judicial, administrative and other proceedings and the filings of proofs of claim and debt in connection therewith). The reasonable costs and expenses incurred by the Master Servicer, Special Servicer or the Trustee in connection with such enforcement shall be paid by the Master Servicer out of the Collection Account. The Trustee, the Special Servicer and the Master Servicer shall each promptly forward all material notices or other communications delivered to it in connection with the applicable Other Pooling and Servicing Agreement to the other such party, the Depositor and (prior to the occurrence of a Consultation Termination Event) the Controlling Class Representative and, if such notice or communication is in the nature of a notice or communication that would be required to be delivered to the Rule 17g-5 Information Provider (for posting to the Rule 17g-5 Information Provider’s Website in accordance with Section 11.13) if the related Non-Serviced Mortgage Loan were a Mortgage Loan that is serviced and administered under this Agreement,
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to the Rule 17g-5 Information Provider (who shall promptly post such notice to the Rule 17g-5 Information Provider’s Website in accordance with Section 11.13). Any obligation of the Master Servicer or Special Servicer, as applicable, to provide information and collections to the Trustee, the Certificate Administrator, the Controlling Class Representative and the Certificateholders with respect to any Non-Serviced Mortgage Loan shall be dependent on its receipt of the corresponding information and collections from the applicable Other Master Servicer or the applicable Other Special Servicer. Each of the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer shall reasonably cooperate with the Controlling Class Representative or the Operating Advisor, as applicable, to facilitate the exercise by the Controlling Class Representative or the Operating Advisor, as applicable, of any consent, approval or consultation rights set forth in this Section 3.01(j); provided, however, the Trustee, the Certificate Administrator, the Master Servicer and Special Servicer shall have no right or obligation to exercise any consent or consultation rights or obtain a Rating Agency Confirmation on behalf of the Controlling Class Representative.
(k) With respect to each Non-Serviced Mortgage Loan, the parties to this Agreement agree as follows:
(i) pursuant to the applicable Other Pooling and Servicing Agreement, the related Other Master Servicer is obligated to make “Property Advances” and incur “Additional Trust Fund Expenses” (or such other similar term, each as defined in the applicable Other Pooling and Servicing Agreement) with respect to each Non-Serviced Mortgage Loan; the Trust shall be responsible for its pro rata share of any “Nonrecoverable Servicing Advances” (and accrued and unpaid interest thereon) and any “Additional Trust Fund Expenses” (but not any interest on “P&I Advances”) (each as defined in the applicable Other Pooling and Servicing Agreement), but only to the extent that they relate to servicing and administration of a Non-Serviced Mortgage Loan, including without limitation, any unpaid “Special Servicing Fees”, “Liquidation Fees” and “Workout Fees” (each as defined in the applicable Other Pooling and Servicing Agreement) relating to a Non-Serviced Mortgage Loan; and in the event that the funds received with respect to each Non-Serviced Whole Loan are insufficient to cover “Property Advances” or “Additional Trust Fund Expenses” (each as defined in the applicable Other Pooling and Servicing Agreement), (i) the Master Servicer shall, promptly following notice from the Other Master Servicer or the Other Special Servicer, pay or reimburse the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or an Other Trustee, as applicable (such reimbursement, to the extent owed to an Other Special Servicer, an Other Certificate Administrator or an Other Trustee, may be paid by the Master Servicer to an Other Master Servicer, who shall pay such amounts to an Other Special Servicer, an Other Certificate Administrator or an Other Trustee, as applicable), out of general funds in the Collection Account for the Trust’s pro rata share of any such “Nonrecoverable Servicing Advances” (together with advance interest thereon) and/or “Additional Trust Fund Expenses”), and (ii) if the applicable Other Pooling and Servicing Agreement permits the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee to reimburse itself from the Other Securitization Trust’s general collections, then the parties to this Agreement hereby acknowledge and agree that the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee, as
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applicable, may do so and the Master Servicer shall be required to, promptly following notice from the Other Master Servicer, the Other Special Servicer or the Other Trustee, reimburse the Other Securitization Trust out of general funds in the Collection Account for the Trust’s pro rata share of any such “Nonrecoverable Servicing Advances” (together with advance interest thereon) and/or “Additional Trust Fund Expenses” (each as defined in the applicable Other Pooling and Servicing Agreement);
(ii) each Other Securitization Trust and each of the parties to the applicable Other Pooling and Servicing Agreement shall be indemnified with respect to losses, costs and expenses relating to the Non-Serviced Mortgage Loans as and to the same extent the Other Trust is required to indemnify each of such Persons in respect of other mortgage loans in the Other Trust pursuant to the terms of Other Pooling and Servicing Agreement by the Trust to the extent of the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of each Non-Serviced Mortgage Loan and the related Mortgaged Property under the related Other Pooling and Servicing Agreement, and to the extent amounts on deposit in the “Serviced Whole Loan Custodial Account” (or such other similar term, as defined in the applicable Other Pooling and Servicing Agreement) are insufficient for reimbursement of such amounts, the Master Servicer shall, promptly following notice from the related Other Master Servicer, reimburse each of such applicable Persons for the Trust’s pro rata share of the insufficiency out of general funds in the Collection Account;
(iii) in the event of a conflict between the provisions of this Agreement and the related Co-Lender Agreement, the related Co-Lender Agreement shall prevail; provided that in no event shall the Master Servicer or the Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of any Co-Lender Agreement, that would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard or REMIC provisions;
(iv) any provisions required to be included herein pursuant to the related Co-Lender Agreement are deemed included and shall be enforceable to the same extent as if set forth herein; and
(v) the Other Master Servicer, the Other Special Servicer, the Other Trustee and the Other Securitization Trust shall be third party beneficiaries of this Section 3.01(k).
Section 3.02 Liability of the Master Servicer. Notwithstanding any Sub-Servicing Agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer and any Person acting as Sub-Servicer (or its agents or subcontractors) or any reference to actions taken through any Person acting as Sub-Servicer or otherwise, the Master Servicer shall remain obligated and primarily liable for the servicing and administering of the Mortgage Loans (other than with respect to the primary servicing of any Non-Serviced Mortgage Loans) and the Serviced Companion Loans in accordance with the provisions of this Agreement without diminution of such obligation or liability by virtue of such Sub-Servicing Agreements or arrangements or by virtue of indemnification from any Person
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acting as Sub-Servicer (or its agents or subcontractors) to the same extent and under the same terms and conditions as if the Master Servicer alone were servicing and administering the Mortgage Loans (other than with respect to the primary servicing of any Non-Serviced Mortgage Loans) and the Serviced Companion Loans. The Master Servicer shall be entitled to enter into an agreement with any Sub-Servicer providing for indemnification of the Master Servicer by such Sub-Servicer, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification, but no such agreement for indemnification shall be deemed to limit or modify this Agreement.
Section 3.03 Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer (with respect to non-Specially Serviced Loans) or the Special Servicer (with respect to Specially Serviced Loans), as applicable, shall use commercially reasonable efforts in accordance with the Servicing Standard to collect all payments called for under the terms and provisions of the Mortgage Loans (excluding the Non-Serviced Mortgage Loans) (and the Serviced Companion Loans) it is obligated to service hereunder (including Special Servicing Fees (in the case of the Special Servicer only), Workout Fees, Liquidation Fees (in the case of the Special Servicer only) and any other fees payable to the Master Servicer or the Special Servicer if and to the extent the related Mortgage Loan Documents require the related Mortgagor to pay such fees), and shall follow the Servicing Standard with respect to such collection procedures; provided that with respect to each ARD Loan, so long as the related Mortgagor is in compliance with each provision of the related Loan Documents, the Master Servicer and the Special Servicer shall not take any enforcement action with respect to the failure of the related Mortgagor to make any payment of Excess Interest, other than requests for collection, until the Maturity Date of the related ARD Loan or until the outstanding principal balance of such ARD Loan (exclusive of any portion representing accrued Excess Interest) has been paid in full); provided, further, that, with respect to any ARD Loan, the Master Servicer or Special Servicer, as the case may be, may take action to enforce the Trust Fund’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan Documents. For clarification, no obligation of the Master Servicer or the Special Servicer to use commercially reasonable efforts to collect fees from the related Mortgagor will change the obligation of the Master Servicer to pay such fees from general collections or other proceeds in accordance with Section 3.06(a) and 3.06A as applicable, of this Agreement, whether or not such Special Servicing Fees, Workout Fees or Liquidation Fees are collected from or paid by the related Mortgagor. The Master Servicer, with respect to the Mortgage Loans (other than Non-Serviced Mortgage Loans) other than Specially Serviced Loans, and Special Servicer, with respect to the Specially Serviced Loans, shall use its reasonable efforts to collect operating statements, rent rolls and other reporting information from Mortgagors (as required under the related Mortgage Loan Documents). Consistent with the foregoing, the Master Servicer (with respect to non-Specially Serviced Loans) or Special Servicer (with respect to Specially Serviced Loans), as applicable, may in its discretion waive any Penalty Charges in connection with any delinquent Monthly Payment with respect to any Mortgage Loan or Companion Loan. In addition, the Master Servicer shall be entitled to take such actions with respect to the collection of payments on the Mortgage Loans and the Serviced Companion Loans as are permitted or required under this Section 3.03.
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(b) In the event that the Master Servicer or the Special Servicer receives Excess Interest and is aware that it has received Excess Interest on or prior to the Determination Date for any Distribution Date, or receives notice from the related Mortgagor that the Master Servicer or the Special Servicer will be receiving Excess Interest on or prior to the Determination Date for any Distribution Date, the Master Servicer or the Special Servicer, as the case may be, shall notify the Certificate Administrator no later than two Business Days prior to such Distribution Date in the CREFC® Loan Periodic Update File. None of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee shall be responsible for any failure of the related Mortgagor to pay any such Excess Interest. The preceding statements shall not, however, be construed to limit the provisions of Section 3.03(a) of this Agreement.
(c) The Certificate Administrator shall deliver to the related Other Depositor, the related Other Trustee, the related Other Certificate Administrator, the related Other Special Servicer, the related Other Master Servicer and the related Other Operating Advisor (A) promptly following the Closing Date written notice in the form of Exhibit EE attached hereto stating that, as of the Closing Date (or, in the case of the WPC Department Store Portfolio Mortgage Loan, as applicable, promptly upon the Certificate Administrator’s receipt of notice of the WPC Department Store Portfolio Securitization Date), the Trust is the holder of such Non-Serviced Mortgage Loan and directing each such recipient to remit to the Master Servicer all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to the Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of such Non-Serviced Mortgage Loan under the related Co-Lender Agreement and the applicable Other Pooling and Servicing Agreement (which notice shall also provide contact information for the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under each Co-Lender Agreement), accompanied by a statement that a copy of an executed version of this Agreement is available upon request, and (B) notice of any subsequent change in the identity of the Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under each Co-Lender Agreement (together with the relevant contact information). The Master Servicer shall, within two (2) Business Days of receipt of properly identified funds, deposit into the Collection Account all amounts received with respect to each Non-Serviced Mortgage Loan, the Mortgaged Property related to each Non-Serviced Mortgage Loan or any related REO Property.
(d) With respect to each Non-Serviced Mortgage Loan, if the Master Servicer does not receive from the related Other Master Servicer any Monthly Payment or other amounts known by the Master Servicer to be owing on a Non-Serviced Mortgage Loan in accordance with the terms of the applicable Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement, then the Master Servicer shall provide notice of such failure to the related Other Master Servicer, the related Other Trustee and the related Other Certificate Administrator.
Section 3.04 Collection of Taxes, Assessments and Similar Items; Escrow Accounts.
(a) With respect to each Mortgaged Property securing a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the Master Servicer shall
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maintain accurate records with respect to each related Mortgaged Property reflecting the status of taxes, assessments, ground rents and other similar items that are or may become a lien on the related Mortgaged Property and the status of insurance premiums payable with respect thereto. From time to time, to the extent such payments are to be made from escrowed funds, the Master Servicer shall (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) effect payment of all such bills with respect to such Mortgaged Properties prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Payments as allowed under the terms of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan. With respect to non-escrowed payments, when the Master Servicer becomes aware in accordance with the Servicing Standard that a Mortgagor (other than with respect to a Non-Serviced Mortgage Loan) has failed to make any such payment or, with respect to escrowed loans, collections from the Mortgagor are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer shall advance the amount of any shortfall as a Property Advance unless the Master Servicer determines in accordance with the Servicing Standard that such Advance would be a Nonrecoverable Advance. Notwithstanding anything in this Agreement to the contrary, the Master Servicer may in accordance with the Servicing Standard elect (but is not required) to make (and in the case of a Specially Serviced Loan, at the direction of the Special Servicer will be required to make) a payment from amounts on deposit in the Collection Account that would otherwise be a Property Advance with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) notwithstanding that the Master Servicer or the Special Servicer has determined that such a Property Advance would, if advanced, be a Nonrecoverable Property Advance, if making the payment would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan, or would remediate any adverse environmental condition or circumstance at the related Mortgaged Property, if, in each instance, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that making the payment is in the best interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (as a collective whole as if the Certificateholders and/or the related Serviced Companion Loan Holder(s) constituted a single lender) (and with respect to the Charles River Plaza North Whole Loan, taking into account the subordinate nature of the Charles River Plaza North Subordinate Companion Loan). If the Special Servicer makes such a determination, it shall notify the Master Servicer and the Master Servicer shall make such payment from the Collection Account. No costs incurred by the Master Servicer in effecting the payment of taxes and assessments on the Mortgaged Properties shall, for the purpose of calculating distributions to Certificateholders, be added to the amount owing under the related Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
(b) The Master Servicer shall segregate and hold all funds collected and received pursuant to any Mortgage Loan or Serviced Whole Loan constituting Escrow Payments separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Payments shall be deposited within two (2) Business Days after receipt of properly identified funds. The Master Servicer shall also deposit into each applicable Escrow Account any amounts representing losses on Permitted Investments to the extent required by Section 3.07(b) of this Agreement and any Insurance Proceeds or Condemnation Proceeds which are required to be
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applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible Accounts (except to the extent the related Mortgage Loan requires or permits it to be held in an account that is not an Eligible Account) and shall be entitled, “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, any related Companion Loan Holders, and Various Mortgagors.” Withdrawals from an Escrow Account may be made by the Master Servicer only:
(i) to effect timely payments of items constituting Escrow Payments for the related Mortgage Loan Documents and in accordance with the terms of the related Mortgage Loan or Serviced Whole Loan, as applicable;
(ii) to transfer funds to the Collection Account and/or the applicable Serviced Whole Loan Custodial Account to reimburse the Master Servicer, the Special Servicer or the Trustee, as applicable, for any Property Advance (with interest thereon at the Advance Rate) relating to Escrow Payments, but only from amounts received with respect to the related Mortgage Loan or Serviced Whole Loan, as applicable, which represent late collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan or Serviced Whole Loan, as applicable, and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of this Agreement;
(v) to pay from time to time to the related Mortgagor (a) any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the related Mortgagor under law or by the terms of the Mortgage Loan or Serviced Whole Loan, as applicable, or otherwise to the Master Servicer and (b) any other funds required to be released to the related Mortgagors pursuant to the related Mortgage Loan Documents; and
(vi) to remove any funds deposited in an Escrow Account that were not required to be deposited therein.
In the event any Mortgage Loan Documents permit the lender, at the discretion of the lender, to use letters of credit and/or cash reserves to prepay the related Mortgage Loan prior to the Maturity Date and in the absence of an event of default or acceleration of the Mortgage Loan, then the Master Servicer shall hold such amounts in an Escrow Account for so long as the Mortgage Loan Documents permit such discretion.
(c) [Reserved.]
(d) To the extent that (i) an operations and maintenance plan is required to be established and executed pursuant to the terms of a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan, or (ii) any repairs, capital improvements, actions or
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remediations are required to have been taken or completed pursuant to the terms of the Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the Master Servicer shall determine in accordance with the Servicing Standard (which determination may be made on the basis of inquiry to the Mortgagor and this sentence shall in no event be construed to require a physical inspection other than inspections described in Section 3.18 of this Agreement; provided that all deliveries required to be made to Master Servicer under the related Mortgage Loan Documents of supporting documentation have been made; then the Master Servicer shall report the then-current status as a failure) whether the related Mortgagor has failed to perform such obligations under the related Mortgage Loan or Serviced Whole Loan as of the date required under the related Mortgage Loan or Serviced Whole Loan and report any such failure to the Special Servicer, the Companion Loan Holders and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative within a reasonable time after the date as of which such actions or remediations are required to be or to have been taken or completed.
Section 3.05 Collection Account; Distribution Accounts; Excess Liquidation Proceeds Reserve Account; and Excess Interest Distribution Account.
(a) The Master Servicer shall establish and maintain the Collection Account in the Master Servicer’s name on behalf of the Trustee, for the benefit of the Certificateholders and the Trustee as the Holder of the Lower-Tier Regular Interests. The Collection Account shall be established and maintained as an Eligible Account. As and when required under this Agreement, the Master Servicer shall transfer to the Collection Account any amounts to be transferred thereto from a Serviced Whole Loan Custodial Account as contemplated by Section 3.06A(a)(i) of this Agreement. In addition, the Master Servicer shall deposit or cause to be deposited in the Collection Account within two (2) Business Days following receipt of properly identified funds the following payments and collections received or made by it on or with respect to the Mortgage Loans (other than any Mortgage Loan related to a Serviced Whole Loan):
(i) all payments on account of principal on such Mortgage Loans, including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on such Mortgage Loans (including Excess Interest);
(iii) all Yield Maintenance Charges on such Mortgage Loans;
(iv) any amounts required to be deposited pursuant to Section 3.07(b) of this Agreement in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to Section 3.16(a) of this Agreement and all Net Insurance Proceeds, Net Condemnation and Net Liquidation Proceeds with respect to such Mortgage Loans;
(vi) any amounts received from Mortgagors under such Mortgage Loans that represent (A) recoveries of Property Protection Expenses, (B) any recovery of
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Unliquidated Advances with respect to such Mortgage Loans, or (C) any other reimbursements in accordance with the related Mortgage Loan Documents, in each case to the extent not permitted to be retained by the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement to be deposited into the Collection Account by the Master Servicer or Special Servicer, including pursuant to Section 2.03 of this Agreement.
The foregoing requirements for deposits in the Collection Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, to the extent provided herein, Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and defeasance fees need not be deposited in the Collection Account by the Master Servicer or the Special Servicer, as applicable, and, to the extent permitted by applicable law, the Master Servicer or the Special Servicer, as applicable, shall be entitled to retain any such Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and/or defeasance fees received with respect to such Mortgage Loans in accordance with Section 3.12 of this Agreement; provided that if the Master Servicer or the Special Servicer, as applicable, receives any such Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and/or defeasance fees in excess of the percentage of such fees to which it is entitled pursuant to Section 3.12(a) (in the case of the Master Servicer) or Section 3.12(c) (in the case of the Special Servicer), then it shall remit to the other party (i.e., the Special Servicer (if Master Servicer has received the excess percentage of such fees) or the Master Servicer (if Special Servicer has received the excess percentage of such fees), as applicable) the percentage of such fees to which such other party is entitled pursuant to Section 3.12(a) or Section 3.12(c), as applicable. The Master Servicer and the Special Servicer shall not deposit any Penalty Charges or Modification Fees received by the Master Servicer or the Special Servicer, as applicable, with respect to any Mortgage Loan into the Collection Account and shall instead apply such fees in accordance with Section 3.14 of this Agreement. In the event that the Master Servicer deposits in the Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from the Collection Account, any provision herein to the contrary notwithstanding. The Master Servicer shall give written notice to the Certificate Administrator, the Trustee and the Special Servicer of the location and account number of the Collection Account and shall notify the Certificate Administrator and the Special Servicer in writing of any subsequent change thereof.
Upon receipt of any of the amounts described in clauses (i) through (vii) above with respect to a Mortgage Loan (other than a Mortgage Loan related to a Serviced Whole Loan), the Special Servicer shall promptly, but in no event later than one (1) Business Day after receipt, remit such amounts to the Master Servicer for deposit into the Collection Account in accordance with the second preceding paragraph, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item should not be deposited because of a restrictive endorsement or other appropriate reason. With respect to any such amounts paid by check to the order of the Special Servicer, the Special Servicer shall endorse such check to the order of the Master Servicer, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item cannot be so endorsed and delivered because of a restrictive endorsement or other appropriate reason. Any such amounts received by the Special Servicer with respect to an REO Property that relates to any Mortgage Loan (other than a
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Mortgage Loan related to a Serviced Whole Loan) shall initially be deposited by the Special Servicer into the related REO Account (or, at the option of the Special Servicer, remitted by the applicable property manager directly to the Master Servicer) and thereafter remitted to the Master Servicer for deposit into the Collection Account, all in accordance with Section 3.16 of this Agreement.
(b) The Certificate Administrator shall establish and maintain the Lower-Tier Distribution Account and the Upper-Tier Distribution Account in the name of the Certificate Administrator, in trust for the benefit of the Certificateholders. Each of the Distribution Accounts shall be established and maintained as Eligible Accounts or as sub-accounts of a single Eligible Account. With respect to each Distribution Date, on or before such Distribution Date the Certificate Administrator shall be deemed to make or shall make the withdrawals from the Lower-Tier Distribution Account, as set forth in Section 4.01 of this Agreement, shall be deemed to make the deposits into the Lower-Tier Distribution Account and the Upper-Tier Distribution Account, as set forth in Section 4.01 hereof, and shall cause the amount of Available Funds (including P&I Advances) and Yield Maintenance Charges to be distributed in respect of the Certificates, pursuant to Section 4.01 hereof on such date.
(c) The Certificate Administrator shall establish (upon receipt of written notice that an event that generates Excess Liquidation Proceeds has occurred) and maintain the Excess Liquidation Proceeds Reserve Account in trust for the benefit of the Certificateholders. The Excess Liquidation Proceeds Reserve Account shall be maintained separate and apart from trust funds for mortgage pass-through certificates of other series administered by the Certificate Administrator and other accounts of the Certificate Administrator. None of the amounts on deposit in Distribution Account, the Excess Liquidation Proceeds Reserve Account, the Excess Interest Distribution Account or the Interest Reserve Account may be invested by the Certificate Administrator.
Upon the disposition of any REO Property in accordance with Section 3.17 of this Agreement, the Special Servicer shall calculate the Excess Liquidation Proceeds, if any, realized in connection with such sale and remit to the Certificate Administrator such amount for deposit in the Excess Liquidation Proceeds Reserve Account. Amounts held in the Excess Liquidation Proceeds Reserve Account on each Distribution Date that exceed amounts reasonably anticipated to be required to offset possible future Realized Losses, as determined by the Special Servicer, and all amounts held in the Excess Liquidation Proceeds Reserve Account on the final Distribution Date, in each case after application in accordance with Section 4.01(d)(i) of this Agreement, shall be distributed to the Holders of the Class R Certificates in respect of the Lower-Tier Residual Interest.
(d) At any time prior to any Determination Date for the first Prepayment Period during which Excess Interest is received on any ARD Loan, and upon notification from the Master Servicer or the Special Servicer pursuant to Section 3.03(a) of this Agreement, the Certificate Administrator shall establish and maintain the Excess Interest Distribution Account in the name of the Certificate Administrator for the benefit of the Class Z Certificateholders. The Excess Interest Distribution Account shall be established and maintained as an Eligible Account (or as a subaccount of an Eligible Account). Prior to the applicable Distribution Date, the Master Servicer shall withdraw from the Collection Account and remit to the Certificate Administrator
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on the applicable Master Servicer Remittance Date for deposit in the Excess Interest Distribution Account an amount equal to the Excess Interest received prior to the Determination Date for the applicable Prepayment Period.
The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(k) of this Agreement.
Following the distribution of Excess Interest to Class Z Certificateholders on the first Distribution Date after which there are no longer any ARD Loans outstanding, the Certificate Administrator shall terminate the Excess Interest Distribution Account.
(e) [Reserved]
(f) Notwithstanding anything to the contrary herein, each Distribution Account, the Excess Liquidation Proceeds Reserve Account and the Interest Reserve Account may all be sub-accounts of a single Eligible Account. For the avoidance of doubt, the Collection Account, the Lower-Tier Distribution Account, the Excess Liquidation Proceeds Reserve Account and the Interest Reserve Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC, the Upper-Tier Distribution Account (including interest, if any, earned on the investor of funds in such account) will be owned by the Upper-Tier REMIC and the Excess Interest Distribution Account (including interest, if any, earned on the investment in such accounts) will be owned by the Grantor Trust for the benefit of the Holders of the Class Z Certificates, each, for federal income tax purposes.
Section 3.05A. Serviced Whole Loan Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to each Serviced Whole Loan, one or more separate accounts, which may be sub-accounts of a single account (with respect to each Serviced Whole Loan, the “Serviced Whole Loan Custodial Account”) in which the amounts described in clauses (i) through (vii) below shall be deposited and held in the name of the Master Servicer on behalf of the Trustee for the benefit of the Certificateholders and the related Companion Loan Holder, as their interests may appear; provided that a Serviced Whole Loan Custodial Account may be a sub-account of the Collection Account or another Serviced Whole Loan Custodial Account (but shall be deemed to be a separate account for purposes of applying the terms of this Agreement). Each of the Serviced Whole Loan Custodial Accounts shall be an Eligible Account or a subaccount of an Eligible Account. The Master Servicer shall deposit or cause to be deposited in each Serviced Whole Loan Custodial Account, within two (2) Business Days following receipt (or, in the case of payments by the Master Servicer, when otherwise required to be so deposited under this Agreement) of properly identified funds, the following payments and collections received or made by it on or with respect to the Serviced Whole Loan:
(i) all payments on account of principal on the related Serviced Whole Loan, including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the related Serviced Whole Loan;
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(iii) all Yield Maintenance Charges on the related Serviced Whole Loan;
(iv) any amounts required to be deposited pursuant to Section 3.07(b) of this Agreement in connection with net losses realized on Permitted Investments with respect to funds held in such Serviced Whole Loan Custodial Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to Section 3.16(a) of this Agreement and all Net Insurance Proceeds, Net Condemnation Proceeds and Net Liquidation Proceeds with respect to the related Serviced Whole Loan;
(vi) any amounts received from the Mortgagor under the related Serviced Whole Loan that represent (A) recoveries of Property Protection Expenses, or (B) any other reimbursements in accordance with the related Mortgage Loan Documents, in each case to the extent not permitted to be retained by the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement to be deposited into such Serviced Whole Loan Custodial Account by the Master Servicer or Special Servicer, including any recovery of any Unliquidated Advances.
(b) The foregoing requirements for deposits in each Serviced Whole Loan Custodial Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, to the extent provided herein, Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and defeasance fees need not be deposited in such Serviced Whole Loan Custodial Account by the Master Servicer or the Special Servicer, as applicable, and, to the extent permitted by applicable law, the Master Servicer or the Special Servicer, as applicable, shall be entitled to retain any such Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and/or defeasance fees received with respect to the Serviced Whole Loans in accordance with Section 3.12 of this Agreement; provided that if the Master Servicer or the Special Servicer, as applicable, receives any such Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees and/or defeasance fees in excess of the percentage of such fees to which it is entitled pursuant to Section 3.12(a) (in the case of the Master Servicer) or Section 3.12(c) (in the case of the Special Servicer), then it shall remit to the other party (i.e., the Special Servicer (if Master Servicer has received the excess percentage of such fees) or the Master Servicer (if Special Servicer has received the excess percentage of such fees), as applicable) the percentage of such fees to which such other party is entitled pursuant to Section 3.12(a) or Section 3.12(c), as applicable). The Master Servicer and the Special Servicer shall not deposit any Penalty Charges and Modification Fees received by the Master Servicer or the Special Servicer, as applicable, with respect to any Serviced Whole Loan into the related Serviced Whole Loan Custodial Account and shall instead apply such fees (except to the extent not permitted under the related Co-Lender Agreement) in accordance with Section 3.14 of this Agreement. In the event that the Master Servicer deposits in a Serviced Whole Loan Custodial Account any amount not required to be deposited therein, it may at any time withdraw such amount from such Serviced Whole Loan Custodial Account, any provision herein to the contrary notwithstanding. The Master Servicer shall give written notice to the Certificate Administrator, the Trustee, the related Companion Loan Holders and the Special Servicer of the location and account number of each Serviced Whole Loan Custodial Account and shall notify the Certificate
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Administrator, the Trustee, the related Companion Loan Holder and the Special Servicer in writing of any subsequent change thereof. Each Serviced Whole Loan Custodial Account shall be maintained as a segregated account (or sub-account of such segregated account), separate and apart from trust funds created for mortgage backed securities of other series and the other accounts of the Master Servicer.
(c) Upon receipt of any of the amounts described in clauses (i) through (vii) of Section 3.05A(a) with respect to a Serviced Whole Loan, the Special Servicer shall promptly, but in no event later than one Business Day after receipt, remit such amounts to the Master Servicer for deposit into the Serviced Whole Loan Custodial Account in accordance with Section 3.05A(a), unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item should not be deposited because of a restrictive endorsement or other appropriate reason. With respect to any such amounts paid by check to the order of the Special Servicer, the Special Servicer shall endorse such check to the order of the Master Servicer, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item cannot be so endorsed and delivered because of a restrictive endorsement or other appropriate reason. Any such amounts received by the Special Servicer with respect to an REO Property that relates to a Serviced Whole Loan shall initially be deposited by the Special Servicer into the related REO Account (or, at the option of the Special Servicer, remitted by the applicable property manager directly to the Master Servicer) and thereafter remitted to the Master Servicer for deposit into the related Serviced Whole Loan Custodial Account, all in accordance with Section 3.17 of this Agreement.
Section 3.06 Permitted Withdrawals from the Collection Account.
(a) The Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for such withdrawals), subject to the application of Penalty Charges and Modification Fees in accordance with the related Co-Lender Agreement and Section 3.14 of this Agreement:
(i) to remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited in such accounts pursuant to Section 3.05(c), 3.23, Section 4.01(a)(i) and Section 4.06(a) of this Agreement, respectively;
(ii) to pay or reimburse the Master Servicer, the Special Servicer or the Trustee, (A) for Advances made thereby with respect to Mortgage Loans that are not part of a Serviced Whole Loan (other than Workout-Delayed Reimbursement Amounts) and any related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and any related Advance Interest Amounts), the Master Servicer’s right to reimburse any such Person pursuant to this clause (ii)(A) being limited to late collections of the particular item (which may include cure payments related to such item by the holder of the Charles River Plaza North Subordinate Companion Loan) which was the subject of the related Advance, Penalty Charges, Condemnation Proceeds, REO Proceeds, Insurance Proceeds and Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO
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Property respecting which such Advance was made, if applicable; provided that (x) prior to the time any Advance is reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges and Modification Fees collected on the related Mortgage Loan pursuant to Section 3.14 of this Agreement, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges and Modification Fees collected on the related Mortgage Loan pursuant to Section 3.14 of this Agreement, and, to the extent such Penalty Charges and Modification Fees are insufficient, then from general collections on deposit in the Collection Account, (B) for Advances made thereby with respect to Mortgage Loans that are part of a Serviced Whole Loan and any related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and any related Advance Interest Amounts), the Master Servicer’s right to reimburse any such person pursuant to this clause (ii)(B) being limited to Net Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, which Net Liquidation Proceeds were received in connection with any of the events described in clauses (iii), (iv) and (vii) of the definition of “Liquidation Event”, (C) to the extent not reimbursed pursuant to Section 3.14 of this Agreement, for Advances and any related Advance Interest Amounts (or portion thereof) that have been deemed to be Nonrecoverable Advances or are not recovered from recoveries in respect of the related Mortgage Loan, Serviced Whole Loan or REO Property after a Final Recovery Determination to the extent not recovered from the related Serviced Whole Loan Custodial Account and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the Mortgage Loans and REO Properties, and second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any election in its sole discretion to defer reimbursement thereof pursuant to Section 3.26 of this Agreement, out of other collections on the Mortgage Loans and REO Properties, and (D) for Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon, first, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to clause (C) above, and second, upon a determination by the Master Servicer, the Special Servicer or the Trustee, as applicable, that a Workout-Delayed Reimbursement Amount is a Nonrecoverable Advance, in the same manner as Nonrecoverable Advances may be reimbursed (provided that with respect to each Mortgage Loan or REO Property that relates to a Serviced Whole Loan, such Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon shall first be reimbursed pursuant to Section 3.06A(a)(ii) of this Agreement and, if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (ii)(D));
(iii) to pay on or before each Master Servicer Remittance Date to the Master Servicer (which shall pay the holder of the Excess Servicing Fee Rights, if any, the portion of the Servicing Fee that represents Excess Servicing Fees in accordance with Section 3.12 of this Agreement) and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee with respect to Mortgage Loans (to the extent not otherwise required to be applied against Prepayment Interest Shortfalls) in respect of the immediately preceding Interest Accrual Period, the Special Servicing Fee (if any) in
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respect of the immediately preceding Interest Accrual Period, and any Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan, and, in the case of the Special Servicing Fee, from general collections, and to pay from time to time to the Master Servicer in accordance with Section 3.07(b) of this Agreement any interest or investment income earned on funds deposited in the Collection Account; provided, however, that in the case of any Mortgage Loan or REO Property related to a Serviced Whole Loan, (A) Servicing Fees may be paid out of the Collection Account pursuant to this clause (iii) only from the interest portion of Net Liquidation Proceeds on or in respect of such Mortgage Loan or REO Property, which Net Liquidation Proceeds were received in connection with any of the events described in clauses (iii), (iv) and (vii) of the definition of “Liquidation Event” and (B) Special Servicing Compensation shall first be paid out of the related Serviced Whole Loan Custodial Account pursuant to Section 3.06A(a)(iii) of this Agreement and may be paid out of the Collection Account pursuant to this clause (iii) only if and to the extent that such Special Servicing Compensation has not been paid out of the related Serviced Whole Loan Custodial Account pursuant to Section 3.06A(a)(iii) of this Agreement;
(iv) in accordance with Section 2.03 of this Agreement, to reimburse itself, the Trustee or the Special Servicer, out of general collections on the Mortgage Loans and related REO Properties (including with respect to the Non-Serviced Mortgage Loan) for any unreimbursed expense reasonably incurred by itself, the Trustee or the Special Servicer in connection with the enforcement of a Mortgage Loan Seller’s obligations under Section 6(e) of the related Loan Purchase Agreement, together with interest thereon at the Advance Rate from the time such expense was incurred to, but excluding, the date such expense was reimbursed, but only to the extent that such expenses are not otherwise reimbursable, each such Person’s right to reimbursement pursuant to this clause (iv) with respect to any Mortgage Loan being subject, if the Purchase Price is paid for such Mortgage Loan, to that portion of the Purchase Price that represents such expense in accordance with clause (f) of the definition of Purchase Price;
(v) to pay out of general collections on the Mortgage Loans and related REO Properties, for costs and expenses incurred by the Trust Fund with respect to the Mortgage Loans and related REO Properties pursuant to Section 3.04(a) and Section 3.10(e) of this Agreement and to pay Liquidation Expenses out of related Liquidation Proceeds pursuant to Section 3.11 of this Agreement (provided that with respect to each Serviced Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(a)(iv) of this Agreement to the extent related to such Serviced Whole Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (v));
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Certificate Administrator, the Special Servicer, the Operating Advisor, CREFC® or the Depositor, as applicable, for unpaid Additional Trust Fund Expenses (other than Advance Interest Amounts), unpaid Trustee/Certificate Administrator Fees, unpaid Servicing Fees in respect of a Mortgage Loan (but only if the Mortgage Loan has been liquidated or a Final
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Recovery Determination has been made with respect thereto), unpaid Special Servicing Compensation, unpaid Operating Advisor Fees, unpaid Operating Advisor Consulting Fees (but not with respect to Non-Serviced Mortgage Loans, and only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor), unpaid CREFC® Intellectual Property Royalty License Fees and other unpaid items incurred by or owing to such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a), Section 3.08(b), Section 3.10, the second sentence of Section 3.12(a), the third sentence of Section 3.12(c), Section 3.16(a), Section 3.28(k), Section 6.03, Section 7.04, Section 8.05(a), Section 8.05(b), Section 8.05(d) or Section 11.07 of this Agreement, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly payable or reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement (provided that with respect to each Mortgage Loan that is part of a Serviced Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(a)(v) of this Agreement to the extent related to such Serviced Whole Loan and, if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vi));
(vii) to transfer to the Certificate Administrator for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Certificate Administrator to be necessary to pay any applicable federal, state or local taxes imposed on either Trust REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;
(viii) to make such payments and reimbursements out of Penalty Charges and Modification Fees on deposit in the Collection Account as are contemplated by Section 3.14 of this Agreement;
(ix) to withdraw any amount deposited into the Collection Account that was not required to be deposited therein; or
(x) to clear and terminate the Collection Account pursuant to Section 9.01 of this Agreement.
If and to the extent that the Master Servicer has reimbursed or made payment to itself or any other Person pursuant to any clause of the prior paragraph above for any cost, expense, indemnity, or Property Advance or Advance Interest Amount thereon with respect to a Whole Loan that represents the related Companion Loan’s allocable share of such cost, expense, indemnity, or Property Advance or Advance Interest Amount thereon, the Master Servicer shall use efforts consistent with the Servicing Standard to collect such amounts out of collections on such Companion Loan (or, if and to the extent permitted under the related Co-Lender Agreement, from the related Companion Loan Holder) and deposit all such amounts (collectively, with respect to such Companion Loan, the “Trust Reimbursement Amount No. 1”) collected from or on behalf of the related Companion Loan Holder into the Collection Account.
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The Master Servicer shall also be entitled to make withdrawals from time to time, from the Collection Account of amounts necessary for the payments or reimbursement of amounts required to be paid to the applicable Other Master Servicer, the applicable Other Special Servicer, the applicable Other Certificate Administrator or the applicable Other Trustee, as applicable, by the holders of each Non-Serviced Mortgage Loan pursuant to each Co-Lender Agreement. In the absence of manifest error, the Master Servicer may conclusively rely on the request for payments contemplated by the preceding sentence.
The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (i)-(x) above.
The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Operating Advisor, the Trustee and the Certificate Administrator, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the Special Servicer, an officer of the Operating Advisor or a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is entitled (unless such payment to the Special Servicer, the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis.
The Master Servicer shall pay to, subject to Section 3.01(k)(i), the applicable Other Master Servicer, the applicable Other Special Servicer, the applicable Other Certificate Administrator or the applicable Other Trustee, as applicable, from the Collection Account on the Master Servicer Remittance Date amounts permitted to be paid to the applicable Other Master Servicer, the applicable Other Special Servicer, the applicable Other Certificate Administrator or the applicable Other Trustee, as applicable, therefrom based upon an Officer’s Certificate received from the applicable Other Master Servicer, the applicable Other Special Servicer, the applicable Other Certificate Administrator or the applicable Other Trustee, as applicable, on the first Business Day following the immediately preceding Determination Date, describing the item and amount to which the applicable Other Master Servicer, the applicable Other Special Servicer, the applicable Other Certificate Administrator or the applicable Other Trustee, as applicable, is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein.
The Trustee, the Certificate Administrator, the Operating Advisor, the Depositor, CREFC®, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), Trustee/Certificate Administrator Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, Operating Advisor Fees, Operating Advisor Consulting Fees (but only to the
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extent such Operating Advisor Consulting Fees are actually received from the related Mortgagor(s)), CREFC® Intellectual Property Royalty License Fees and (for each of such Persons other than CREFC®) their respective expenses hereunder (including without limitation Additional Trust Fund Expenses) to the extent such fees, indemnity amounts and expenses are to be reimbursed or paid from amounts on deposit in the Collection Account pursuant to this Agreement (and to have such amounts paid directly to third party contractors for any invoices submitted to the Trustee, the Master Servicer or the Special Servicer, as applicable).
(b) The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account and the Excess Liquidation Proceeds Reserve Account any and all amounts received by the Certificate Administrator in accordance with Section 3.06(a)(i) of this Agreement. If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the preceding sentence is required to be delivered hereunder, the Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited therein pursuant to the provisions of this Agreement (including, without limitation, Section 3.06(a)(i) of this Agreement), then the Certificate Administrator shall, to the extent that a Responsible Officer of the Certificate Administrator has such knowledge, provide notice of such failure to the Master Servicer by e-mail sent to noticeadmin@midlandls.com with a copy to askmidland@midlandls.com (or such alternative e-mail address provided by the Master Servicer to the Certificate Administrator in writing) and by facsimile transmission at telecopy number (913) 253-9001 (or such alternative number provided by the Master Servicer to the Certificate Administrator in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day; provided, however, that the Master Servicer will pay the Certificate Administrator interest on such late payment at the Prime Rate from and including the applicable required remittance date to, but not including, the date until such late payment is received by the Certificate Administrator.
Section 3.06A. Permitted Withdrawals from the Serviced Whole Loan Custodial Account.
(a) The Master Servicer may make withdrawals from the Serviced Whole Loan Custodial Account for each Serviced Whole Loan only as described below (the order set forth below not constituting an order of priority for such withdrawals), subject to the application of Penalty Charges and Modification Fees in accordance with the related Co-Lender Agreement and Section 3.14 of this Agreement:
(i) after the Determination Date, and on or prior to the Business Day immediately preceding the Master Servicer Remittance Date, in each calendar month (and also on the Business Day immediately following the receipt of any funds from the REO Account for any REO Property related to such Serviced Whole Loan, if such funds are received after the Determination Date and before the Distribution Date in any calendar month and were not available for any earlier transfer to the Collection Account in such calendar month), to transfer to the Collection Account all amounts on deposit in the Serviced Whole Loan Custodial Account payable to the Trust pursuant to the related
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Co-Lender Agreement with respect to the related Mortgage Loan (or any successor REO Mortgage Loan), including any applicable Trust Reimbursement Amount; and on the date specified in the related Co-Lender Agreement (or if no date is specified, on the Business Day immediately following the Determination Date) in each calendar month (and also on the Business Day immediately following the receipt of any funds from the REO Account for any REO Property related to the applicable Serviced Whole Loan, if such funds are received after the Determination Date and before the Distribution Date in any calendar month), to remit to the related Companion Loan Holder all amounts on deposit in the Serviced Whole Loan Custodial Account payable to such Companion Loan Holder pursuant to the related Co-Lender Agreement with respect to the related Companion Loan (or any successor REO Companion Loan), exclusive of any applicable Trust Reimbursement Amount;
(ii) to pay or reimburse the Master Servicer, the Special Servicer or the Trustee for Advances made thereby with respect to such Serviced Whole Loan and any related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and any related Advance Interest Amounts), the Master Servicer’s right to reimburse any such Person pursuant to this clause (ii) being limited to late collections (including cure payments by related Companion Loan Holders) of the particular item which was the subject of the related Advance, Penalty Charges, Condemnation Proceeds, REO Proceeds, Insurance Proceeds and Liquidation Proceeds on or in respect of the particular Serviced Whole Loan or any related REO Property; provided, however, that if such Advance has become a Workout-Delayed Reimbursement Amount (but not a Nonrecoverable Advance), then neither such Workout-Delayed Reimbursement Amount nor any related Advance Interest Amounts shall be reimbursed or paid, as the case may be, out of payments or other collections of interest (other than Penalty Charges) or Yield Maintenance Charges on or in respect of the related Mortgage Loan (or any successor REO Mortgage Loan) or the related Companion Loan (or any successor REO Companion Loan); and provided, further, that if such Advance is a P&I Advance with respect to the related Mortgage Loan (or a successor REO Mortgage Loan), then neither such Advance nor any related Advance Interest Amounts shall be reimbursed or paid, as the case may be, out of, or otherwise result in a reduction of, amounts otherwise payable to the related Companion Loan Holder with respect to the related Pari Passu Companion Loan (or any successor REO Companion Loan), except that in the case of the Charles River Plaza North Whole Loan, reimbursements or payments, as the case may be, of Advances or any related Advance Interest Amounts shall be made taking into account the subordinate nature of the Charles River Plaza North Subordinate Companion Loan;
(iii) to pay on or before each Master Servicer Remittance Date (1) to the Master Servicer (who shall pay the holder of the Excess Servicing Fee Rights (if any) the portion of the Servicing Fee that represents Excess Servicing Fees in accordance with Section 3.12 of this Agreement) as compensation, the aggregate unpaid Servicing Fee with respect to such Serviced Whole Loan (to the extent not otherwise required to be applied against Prepayment Interest Shortfalls) in respect of the immediately preceding Interest Accrual Period, to be paid from interest received on the related Mortgage Loan or Companion Loan, as applicable, and to pay from time to time to the Master Servicer in
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accordance with Section 3.07(b) any interest or investment income earned on funds deposited in such Serviced Whole Loan Custodial Account and (2) to the Special Servicer as compensation, any Special Servicing Compensation and additional servicing compensation payable with respect to such Serviced Whole Loan; provided, however, that no Servicing Fees or Special Servicing Compensation earned with respect to the related Mortgage Loan (or a successor REO Mortgage Loan) shall be payable out of, or otherwise result in a reduction of, amounts otherwise payable to the related Companion Loan Holder with respect to the related Pari Passu Companion Loan (or any successor REO Companion Loan) (provided that, in the case of the Charles River Plaza North Whole Loan, such payments shall be made taking into account the subordinate nature of the Charles River Plaza North Subordinate Companion Loan), and no Servicing Fees or Special Servicing Compensation earned with respect to the related Companion Loan (or any successor REO Companion Loan) shall be payable out of, or otherwise result in a reduction of, amounts otherwise payable to the Trust with respect to the related Mortgage Loan (or a successor REO Mortgage Loan) (it being acknowledged and agreed that this proviso is in no way intended to limit the rights of the Master Servicer or Special Servicer under the related Co-Lender Agreement to seek payment of any unpaid Servicing Fees or Special Servicing Compensation, as applicable, with respect to any Companion Loan from the related Companion Loan Holder);
(iv) to pay for costs and expenses incurred by the Trust Fund solely with respect to such Serviced Whole Loan and related REO Property pursuant to Section 3.10(e) and to pay Liquidation Expenses out of Liquidation Proceeds pursuant to Section 3.11;
(v) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06A, to reimburse or pay the Master Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Special Servicer or the Depositor, as applicable, for unpaid Additional Trust Fund Expenses, Servicing Fees and other unpaid items incurred by or owing to such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a), Section 3.08(b), Section 3.10, the second sentence of Section 3.12(a), the third sentence of Section 3.12(c), Section 3.16(a), Section 3.28(k), Section 6.03, Section 7.04, Section 8.05(a), Section 8.05(b), Section 8.05(d) or Section 11.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly payable or reimbursable under such Section and to the extent related to such Serviced Whole Loan and not related to amounts which are solely expenses of the Trust Fund (such as expenses related to administration of the Trust Fund or REMIC taxes, penalties or interest or preservation of the REMIC status of each Trust REMIC), it being acknowledged that this clause (v) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement; provided, however, that no payment or reimbursement to the Operating Advisor, or payment of Trustee/Certificate Administrator Fees, or payment or reimbursement of costs and expenses associated with obtaining a Rating Agency Confirmation, shall be made out of, or otherwise result in a reduction of, amounts otherwise payable to the related Companion Loan Holder with respect to the related Pari Passu Companion Loan (or
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successor REO Companion Loan) (provided that, in the case of the Charles River Plaza North Whole Loan, such payments shall be made taking into account the subordinate nature of the Charles River Plaza North Subordinate Companion Loan), and no payment or reimbursement of costs and expenses associated with obtaining a Companion Loan Rating Agency Confirmation shall be made out of, or otherwise result in a reduction of, amounts otherwise payable to the Trust with respect to the related Mortgage Loan (or any successor REO Mortgage Loan);
(vi) to make such payments and reimbursements out of Penalty Charges and Modification Fees on deposit in such Serviced Whole Loan Custodial Account as are contemplated by the related Co-Lender Agreement and, to the extent consistent with the related Co-Lender Agreement, Section 3.14 of this Agreement;
(vii) to withdraw any amount deposited into such Serviced Whole Loan Custodial Account that was not required to be deposited therein;
(viii) if the related Companion Loan (or any successor REO Companion Loan with respect thereto) is part of an Other Securitization Trust, to the extent required by the related Co-Lender Agreement, to reimburse the applicable party to the related Other Pooling and Servicing Agreement for any advances of delinquent monthly debt service payments made thereby with respect to such Companion Loan (or REO Companion Loan), together with interest thereon, provided that such reimbursement, together with interest, shall be made solely out of payments and other collections on such Companion Loan (or REO Companion Loan); or
(ix) to clear and terminate such Serviced Whole Loan Custodial Account pursuant to Section 9.01 of this Agreement.
The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan-by-Mortgage Loan and Companion Loan-by-Companion Loan basis, for the purpose of justifying any withdrawal from each Serviced Whole Loan Custodial Account pursuant to subclauses (i) - (ix) above. If and to the extent that the Master Servicer has reimbursed or made payment to itself or any other Person pursuant to any clause of the prior paragraph above for any cost, expense, indemnity, or Property Advance or Advance Interest Amount thereon with respect to a Serviced Whole Loan out of monies allocable to the related Mortgage Loan (or any successor REO Mortgage Loan) to an extent that the Trust has borne some or all of the related Serviced Companion Loan’s allocable share of such cost, expense, indemnity, or Property Advance or Advance Interest Amount thereon, the Master Servicer (with respect to Non-Specially Serviced Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall use efforts consistent with the Servicing Standard to collect such amounts disproportionately borne by the Trust out of collections on such Companion Loan (or, if and to the extent permitted under the related Co-Lender Agreement, from the related Companion Loan Holder) and deposit all such amounts (collectively, with respect to such Companion Loan, the “Trust Reimbursement Amount No. 2” and, together with Trust Reimbursement Amount No. 1, the “Trust Reimbursement Amount”) collected from or on behalf of the related Companion Loan Holder into the Collection Account.
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The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Operating Advisor, the Trustee, the Certificate Administrator and an advancing party under any Other Pooling and Servicing Agreement, as applicable, from the applicable Serviced Whole Loan Custodial Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the Special Servicer, an officer of the Operating Advisor, a Responsible Officer of the Trustee or the Certificate Administrator or an officer of such advancing party under such Other Pooling and Servicing Agreement, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Operating Advisor, the Trustee, the Certificate Administrator or such advancing party under such Other Pooling and Servicing Agreement, as the case may be, is entitled (unless such payment to the Special Servicer, the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to re-calculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain separate accounting for the purpose of justifying any request for withdrawal from each Serviced Whole Loan Custodial Account, on a loan-by-loan basis.
The Trustee, the Depositor, the Operating Advisor, the Certificate Administrator, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in a Serviced Whole Loan Custodial Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Special Servicing Compensation, Advances, Advance Interest Amounts and their respective indemnity amounts or expenses hereunder to the extent such fees, indemnity amounts and expenses are to be reimbursed or paid from amounts on deposit in such Serviced Whole Loan Custodial Account pursuant to this Agreement and the related Co-Lender Agreement (and to have such amounts paid directly to third party contractors for any invoices approved by the Trustee, the Depositor, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable); provided, however, that for the avoidance of doubt, neither the Trustee/Certificate Administrator Fee nor the Operating Advisor Fee shall be paid from funds on deposit in a Serviced Whole Loan Custodial Account.
After the Determination Date, and on or prior to the Business Day immediately preceding the Master Servicer Remittance Date, in each calendar month (and also on the Business Day immediately following the receipt of any funds from the REO Account for any REO Property related to the applicable Serviced Whole Loan, if such funds are received after the Determination Date and before the Distribution Date in any calendar month and were not available for any earlier transfer to the Collection Account in such calendar month), the Master Servicer shall remit for deposit in the Collection Account all amounts on deposit in a Serviced Whole Loan Custodial Account payable to the Trust pursuant to the related Co-Lender Agreement with respect to the related Mortgage Loan (or any successor REO Mortgage Loan), including any applicable Trust Reimbursement Amount; and on the date specified in the related Co-Lender Agreement (or if no date is specified, on the Business Day immediately following the Determination Date) in each calendar month (and also on the Business Day immediately following the receipt of any funds from the REO Account for any REO Property related to the applicable Serviced Whole Loan, if such funds are received after the Determination Date and before the Distribution Date in any calendar month), the Master Servicer shall remit to the
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related Companion Loan Holder all amounts on deposit in a Serviced Whole Loan Custodial Account payable to such Companion Loan Holder pursuant to the related Co-Lender Agreement with respect to the related Companion Loan (or any successor REO Companion Loan), exclusive of any applicable Trust Reimbursement Amount, in each case, prior to the required remittance from the Collection Account to the Certificate Administrator for deposit into the Lower-Tier Distribution Account on such Master Servicer Remittance Date.
Section 3.07 Investment of Funds in the Collection Account, the Excess Interest Distribution Account, the REO Account, the Interest Reserve Account, the Mortgagor Accounts, the Excess Liquidation Proceeds Reserve Account and Other Accounts.
(a) The Master Servicer (or with respect to any REO Account, the Special Servicer, or, with respect to each Distribution Account, the Excess Interest Distribution Account, the Excess Liquidation Proceeds Reserve Account and the Interest Reserve Account (the foregoing accounts, the “Certificate Administrator Accounts”), the Certificate Administrator) may direct any depository institution maintaining the Collection Account, any Serviced Whole Loan Custodial Account, any Mortgagor Accounts (subject to the second succeeding sentence), the Certificate Administrator Accounts and the REO Accounts (each of the Collection Account, any Serviced Whole Loan Custodial Account, any REO Account, any Mortgagor Account and any Certificate Administrator Account, for purposes of this Section 3.07, an “Investment Account”), to invest the funds in such Investment Account in one or more Permitted Investments that bear interest or are sold at a discount, and that mature, unless payable on demand, no later than the Business Day preceding the date on which such funds are required to be withdrawn from such Investment Account pursuant to this Agreement; provided that any amounts invested by the Certificate Administrator in Permitted Investments managed or advised by the Certificate Administrator or its Affiliates shall mature on or prior to the Distribution Date in time to be available to make timely distributions to Certificateholders. Any direction by the Master Servicer or the Special Servicer to invest funds on deposit in an Investment Account shall be in writing and shall certify that the requested investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand. In the case of any Reserve Account, Escrow Account or Lockbox Account (the “Mortgagor Accounts”), the Master Servicer shall act upon the written request of the related Mortgagor or Manager to the extent the Master Servicer is required to do so under the terms of the respective Mortgage Loan (or Serviced Whole Loan) or related documents, provided that in the absence of appropriate written instructions from the related Mortgagor or Manager meeting the requirements of this Section 3.07, the Master Servicer shall have no obligation to, but will be entitled to, direct the investment of funds in such accounts in Permitted Investments. All such Permitted Investments shall be held to maturity, unless payable on demand. Any investment of funds in an Investment Account shall be made in the name of the Certificate Administrator (on behalf of the Trustee for the benefit of the Certificateholders) or in the name of a nominee of the Certificate Administrator. The Certificate Administrator shall have sole control (except with respect to investment direction which shall be in the control of the Master Servicer (or the Special Servicer, with respect to any REO Accounts or the Certificate Administrator with respect to the Certificate Administrator Accounts) as an independent contractor to the Trust Fund) over each such investment and any certificate or other instrument evidencing any such investment shall be delivered directly to the Certificate Administrator or its agent (which shall initially be the Master Servicer), together with any document of transfer, if any, necessary to transfer title to such investment to the Certificate
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Administrator or its nominee. The Certificate Administrator shall have no responsibility or liability with respect to the investment directions of the Master Servicer or the Special Servicer, any Mortgagor or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Master Servicer shall have no responsibility or liability with respect to the investment direction of the Certificate Administrator, the Special Servicer, any Mortgagor or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Special Servicer shall have no responsibility or liability with respect to the investment direction of the Certificate Administrator, the Master Servicer, any Mortgagor or any property manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the Master Servicer (or the Special Servicer in the case of REO Accounts, or the Certificate Administrator, in the case of the Certificate Administrator Accounts), shall: (x) consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and (y) demand payment of all amounts due thereunder promptly upon determination by the Master Servicer (or the Special Servicer in the case of REO Accounts) that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any Investment Account shall be for the benefit of the Master Servicer, except with respect to the investment of funds deposited in (i) any Mortgagor Account to the extent required under the Mortgage Loan (or Serviced Whole Loan) or applicable law to be for the benefit of the related Mortgagor, (ii) any REO Account, which shall be for the benefit of the Special Servicer or (iii) the Certificate Administrator Accounts, which shall be for the benefit of the Certificate Administrator, and, if held in the Collection Account or REO Account shall be subject to withdrawal by the Master Servicer or the Special Servicer, as applicable, in accordance with Section 3.06 or Section 3.16(a) of this Agreement, as applicable. The Master Servicer (or with respect to any REO Account, the Special Servicer and with respect to the Certificate Administrator Accounts, the Certificate Administrator) shall deposit from its own funds into any applicable Investment Account, the amount of any loss incurred in respect of any such Permitted Investment immediately upon realization of such loss (except with respect to losses incurred as a result of the related Mortgagor or Manager exercising its power under the related Mortgage Loan Documents to direct such investment in such Mortgagor Account); provided, however, that the Certificate Administrator, Master Servicer or Special Servicer, as applicable, may reduce the amount of such payment to the extent it forgoes any investment income in such Investment Account otherwise payable to it. The Master Servicer shall also deposit from its own funds in any Mortgagor Account the amount of any loss incurred in respect of Permitted Investments, except to the extent that amounts are invested for the benefit of the Mortgagor under the terms of the Mortgage Loan (or Serviced Whole Loan) or applicable law, provided that, notwithstanding the foregoing, none of the Master Servicer, the Special Servicer or the Certificate Administrator (in their respective capacities as Master Servicer, Special Servicer and Certificate Administrator, respectively) shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company is not the Person or an Affiliate of the Person
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maintaining such account hereunder and satisfied the qualifications set forth in the definition of Eligible Account both (1) at the time such investment was made and (2) as of the date that is 30 days prior to the insolvency.
(c) Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the Trustee may, and upon the request of Holders of Certificates representing greater than 50% of the Percentage Interests of any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. In the event the Trustee takes any such action, the Trust Fund shall pay or reimburse the Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in connection therewith. In the event that the Trustee does not take any such action, the Master Servicer may, but is not obligated to, take such action at its own cost and expense.
Section 3.08 Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage.
(a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than the Non-Serviced Mortgage Loans) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the Serviced Companion Loan. Subject to Section 3.16 of this Agreement, the Special Servicer, in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard and (A)(i) with the consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing) or (ii) if a Control Termination Event has occurred and is continuing, following consultation with the Controlling Class Representative (unless a Consultation Termination Event has occurred and is continuing) and other than with respect to the Charles River Plaza North Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder or the WPC Department Store Portfolio Whole Loan, (B) with the consent of the related Whole Loan Directing Holder
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(with respect to the Charles River Plaza North Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder) or (C) with the consent of the WPC Department Store Portfolio Directing Holder (with respect to the WPC Department Store Portfolio Whole Loan), as applicable), shall cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Mortgage Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Mortgage Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Mortgage Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Serviced Whole Loan Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the Mortgaged Property (other than an REO Property and other than with respect to a Non-Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan or Serviced Whole Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Companion Loan and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Whole Loan and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Whole Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the
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related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Whole Loan or, if not specified, in-place at origination. If an REO Property (i) is located in a federally designated special flood hazard area or (ii) is related to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to the REO Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders and the Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Mortgage Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Mortgage Loan Documents if the originator of the Mortgage Loan or Serviced Whole Loan waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on
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insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage.
Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, shall not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.
(b) (i) If the Master Servicer or the Special Servicer obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties and other than with respect to the Mortgaged Properties that secure the Non-Serviced Mortgage Loans) as to which the related Mortgagor has not maintained insurance required by the related Mortgage Loan or, if applicable, related Serviced Whole Loan (other than any Mortgagor that is required under the related Mortgage Loan Documents to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer” that maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”)) or the Special Servicer obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the REO Properties (other than REO Properties acquired in respect of any Non-Serviced Mortgage Loan), as required under this Agreement, as the case may be, then the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a) of this Agreement. Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a) of this Agreement, and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account or, if applicable, related Serviced Whole Loan Custodial Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Serviced Whole Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholder and any related Companion Loan Holder, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy
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and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder.
(ii) If the Master Servicer causes any Mortgaged Property (other than any REO Property and other than with respect to the Mortgaged Property that secures a Non-Serviced Mortgage Loan) or the Special Servicer causes any REO Property (other than an REO Property acquired in respect of a Non-Serviced Mortgage Loan) to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) of this Agreement, then the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a) of this Agreement. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account or, if applicable, related Serviced Whole Loan Custodial Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan and/or related Companion Loan(s) related thereto, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard.
(iii) In either case, if the Master Servicer or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by such “force-placed” insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Advance. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any claim under an insurance policy described above (whether by the Master Servicer or Special Servicer) shall be paid by, and reimbursable to, the Master Servicer as a Property Advance.
(c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in such form as is consistent with the Servicing Standard and in such amounts that are consistent with the Servicing Standard. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans and Serviced Companion Loans hereunder in such form as is consistent with the Servicing Standard and in such amounts as are consistent with the Servicing Standard. Notwithstanding the foregoing, so long as the long-term unsecured debt rating of the Master Servicer (or its corporate
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parent) or the Special Servicer (or its corporate parent) is not in any event less than “A3” as rated by Moody’s and “A-” as rated by Fitch, respectively, the Master Servicer or the Special Servicer may self-insure for the fidelity bond and errors and omissions coverage otherwise required above. The Master Servicer shall cause each and every Sub-Servicer for it to maintain or cause to be maintained by an agent or contractor servicing any Mortgage Loan or Serviced Whole Loan on behalf of such Sub-Servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer to comply with the foregoing. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.
Section 3.09 Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses; Assumption Agreements; Defeasance Provisions.
(a) Upon receipt of any request of a consent or waiver in respect of a due-on-sale or due-on encumbrance provision, the Special Servicer shall (a) with respect to Specially Serviced Loans, determine, in a manner consistent with the Servicing Standard, or (b) with respect to non-Specially Serviced Loans, determine, in a manner consistent with the Servicing Standard (or, if mutually agreed to by the Master Servicer and the Special Servicer, the Master Servicer shall determine, in a manner consistent with the Servicing Standard and subject to the consent of the Special Servicer), whether to grant such waiver request and, if granted, shall promptly process such consent or waiver (including the preparation of written materials). The Master Servicer or the Special Servicer, as applicable, shall close the related transaction and, subject to the consultation and/or consent rights (if any) of the Controlling Class Representative, any related Whole Loan Directing Holder or the WPC Department Store Portfolio Directing Holder or the consultation rights of any related Companion Loan Holder (or its Companion Loan Holder Representative) as provided in this Section 3.09(a) and as otherwise provided in the related Co-Lender Agreement and this Agreement, and subject to Section 3.09(b), 3.21, 3.24, 3.25 and Section 3.27; provided, however, that the Master Servicer or the Special Servicer, as applicable, shall not enter into any such agreement to the extent that any terms thereof would result in (i) the imposition of a tax on a Trust REMIC under the REMIC Provisions or cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes at any time that any Certificate is outstanding or (ii) create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. With respect to (i) non-Specially Serviced Loans, the Special Servicer or, if mutually agreed to by the Master Servicer and the Special Servicer, the Master Servicer (subject to the Special Servicer’s consent) or (ii) Specially Serviced Loans, the Special Servicer, each in a manner consistent with the Servicing Standard and each on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers or further encumbrances of interests in the related Mortgagor, unless following its receipt of a request of a consent or waiver in respect of a due-on-sale or due-on-encumbrance provision, the Special Servicer (or, with respect to non-Specially Serviced Loans, if mutually agreed to by the Master Servicer and the Special Servicer, the Master Servicer, subject to the Special Servicer’s consent) has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Special Servicer or the Master Servicer has made any such determination to waive enforcement of a due-on-sale or due-on-encumbrance provision, the
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Special Servicer or the Master Servicer, as applicable, shall deliver to the Trustee, the Certificate Administrator, each other party to this Agreement and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider an Officer’s Certificate setting forth the basis for such determination; provided that, with respect to all Mortgage Loans and Serviced Whole Loans, the Special Servicer shall, prior to taking such an action or consenting to the Master Servicer’s taking of such an action, (A) obtain the written consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing), (B) if a Control Termination Event has occurred and is continuing, consult with the Controlling Class Representative (unless a Consultation Termination Event has occurred and is continuing), or (C) with respect to the Charles River Plaza North Whole Loan or the WPC Department Store Portfolio Whole Loan, obtain the written consent of the related Whole Loan Directing Holder (with respect to the Charles River Plaza North Whole Loan, for so long as the related Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder) or the WPC Department Store Portfolio Directing Holder (with respect to the WPC Department Store Portfolio Whole Loan), which consent shall be deemed given ten (10) Business Days after receipt (unless earlier objected to) by the Controlling Class Representative or related Whole Loan Directing Holder, as applicable, of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative or the related Whole Loan Directing Holder, as applicable, may reasonably request for the analysis of such request, which recommendation and information may be delivered in an electronic format reasonably acceptable to Controlling Class Representative or the related Whole Loan Directing Holder, as applicable, and the Special Servicer. In addition, the Special Servicer or (if mutually agreed to by the Master Servicer and the Special Servicer that the Master Servicer will determine whether to grant such waiver and, if granted, will process, subject to the consent of the Special Servicer, such transaction) the Master Servicer, as applicable, may not grant its consent with respect to or waive any “due-on-encumbrance” provision unless (1) the Special Servicer or the Master Servicer, as applicable, shall have received a prior written Rating Agency Confirmation with respect to such action or (2) the related Mortgage Loan (including a Mortgage Loan related to a Serviced Whole Loan) (A) represents less than 2% the principal balance of all of the Mortgage Loans in the Trust Fund, (B) has a principal balance that is equal to or less than $20,000,000, (C) has a Loan-to-Value Ratio equal to or less than 85% (including any existing and proposed debt), (D) has a Debt Service Coverage Ratio equal to or greater than 1.20x (in each case, determined based upon the aggregate of the Stated Principal Balance of the Mortgage Loan or Serviced Whole Loan, as applicable, and the principal balance of the proposed additional lien) and (E) is not one of the 10 largest Mortgage Loans in the Mortgage Pool based on principal balance (although no such Rating Agency Confirmation will be required if such Mortgage Loan has a principal balance less than $10,000,000). Further, the Special Servicer or the Master Servicer, as applicable, may not grant its consent with respect to or waive any “due-on-sale” provision unless the Special Servicer or (in the case of a non-Specially Serviced Loan, if mutually agreed to by the Master Servicer and the Special Servicer that the Master Servicer will determine and process, subject to the consent of the Special Servicer, such waiver and transaction) the Master Servicer, as applicable, shall have received a prior written Rating Agency Confirmation with respect to such action unless the related Mortgage Loan (including a Mortgage Loan related to a Serviced Whole Loan) (A) represents less than 5% the principal balance of all of the Mortgage Loans in the Trust Fund, (B) has a principal balance that is equal to or less than $35,000,000 and (C) is not one of the 10
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largest Mortgage Loans in the Mortgage Pool based on principal balance (although no such Rating Agency Confirmation will be required if such Mortgage Loan has a principal balance less than $10,000,000). For the purposes of this Agreement, due-on-sale provisions shall include, without limitation, any rights arising out of sales or transfers of Mortgaged Properties, in full or in part, or the sale, transfer, pledge or hypothecation of direct or indirect interests in any Mortgagor or its owner, to the extent prohibited under the related Mortgage Loan Documents, and due on encumbrance provisions shall include, without limitation, any rights arising out of any mezzanine/subordinate financing of any Mortgagor or any Mortgaged Property or any sale or transfer of preferred equity in any Mortgagor or its owners, to the extent prohibited under the related Mortgage Loan Documents.
The Special Servicer or the Master Servicer, as applicable (in each case, if it is the party processing the related request pursuant to the first paragraph of this Section 3.09(a)), shall notify in writing the other party, the Trustee, the Certificate Administrator, the Rule 17g-5 Information Provider (for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement), the Operating Advisor (only after the occurrence and during the continuance of a Control Termination Event) and, with respect to a Serviced Whole Loan, the related Companion Loan Holder, of any assumption or substitution agreement executed pursuant to this Section 3.09(a) and shall forward thereto a copy of such agreement.
In connection with any request for a Rating Agency Confirmation from a Rating Agency pursuant to this Section 3.09(a), the Special Servicer or the Master Servicer, as applicable (in each case, if it is the party processing the related request pursuant to the first paragraph of this Section 3.09(a)), shall deliver a Review Package to the Rule 17g-5 Information Provider for posting to the Rule 17g-5 Information Provider’s Website in accordance with Section 11.13 of this Agreement.
Further, subject to the terms of the related Mortgage Loan Documents and applicable law, the Special Servicer or the Master Servicer, as applicable (in each case, if it is the party processing the related request pursuant to the first paragraph of this Section 3.09(a)), shall use reasonable efforts to ensure that all costs in connection with any assumption or encumbrance, including any arising from seeking a Rating Agency Confirmation, are paid by the related Mortgagor. To the extent not collected from the related Mortgagor after the use of such efforts, any rating agency charges in connection with the foregoing shall be paid by the Master Servicer as a Property Advance (or as an Additional Trust Fund Expense if such Property Advance would be a Nonrecoverable Advance).
To the extent not prohibited by the applicable Mortgage Loan Documents and applicable law, the Special Servicer or the Master Servicer, as applicable, may charge the related Mortgagor a fee in connection with any enforcement or waiver contemplated in this subsection (a); provided that any such fee shall be applied as if it were a Modification Fee and/or Assumption Fee, as applicable, pursuant to the terms of this Agreement.
(b) Nothing in this Section 3.09 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any lien or other encumbrance with respect to such Mortgaged Property.
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(c) In connection with the taking of, or the failure to take, any action pursuant to this Section 3.09, neither the Master Servicer nor the Special Servicer shall agree to modify, waive or amend, and no assumption or substitution agreement entered into pursuant to Section 3.09(a) of this Agreement shall contain any terms that are different from, any term of any Mortgage Loan or Companion Loan or the related Note(s), other than pursuant to Section 3.24 of this Agreement.
(d) With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan which permits release of Mortgaged Properties through defeasance and to the extent consistent with the terms of the related Mortgage Loan Documents:
(i) In the event such Mortgage Loan or Serviced Whole Loan requires that the Master Servicer on behalf of the Trustee purchase the required “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii), the Master Servicer, an accommodation Mortgagor pursuant to clause (v) below or the Mortgagor shall, at the Mortgagor’s expense (to the extent consistent with the Mortgage Loan Documents), purchase or cause the purchase of such obligations in accordance with the terms of such Mortgage Loan or Serviced Whole Loan and deliver to the Master Servicer, in the case of the Mortgagor, or in the case of the Master Servicer, hold the same on behalf of the Trust Fund and, if applicable, the related Companion Loan Holder; provided that, subject to the related Mortgage Loan Documents, the Master Servicer shall not accept the amounts paid by the related Mortgagor to effect defeasance until acceptable “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) have been identified, in each case which are acceptable as defeasance collateral under the then most recently published current guidelines of the Rating Agencies. Notwithstanding the foregoing, with respect to certain Mortgage Loans originated or acquired by Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon that are subject to defeasance, (i) each of Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon has retained on behalf of itself or its affiliate the right, if any, to establish or designate the successor borrower and (ii) each of Column, UBSRES, BSPCC and Bank of New York Mellon has retained on behalf of itself or its affiliate the right, if any, to purchase or cause to be purchased the related defeasance collateral (collectively, the “Loan Seller Defeasance Rights and Obligations”). In the event the Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan that provides for Loan Seller Defeasance Rights and Obligations in the related Mortgage Loan Documents, the Master Servicer shall provide, within five (5) business days of receipt of such notice, written notice of such defeasance request to Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon, as applicable, in the case of the Mortgage Loans for which Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon, as applicable is the related Mortgage Loan Seller. Until such time as Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon, as applicable, provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with Loan Seller Defeasance Rights and Obligations shall be delivered to Column, UBSRES, BSPCC, Bancorp and Bank of New York Mellon, as applicable, pursuant to the notice provisions hereof.
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(ii) The Master Servicer shall require, to the extent the Mortgage Loan Documents grant the mortgagee discretion to so require, delivery of an Opinion of Counsel (which shall be an expense of the related Mortgagor to the extent consistent with the related Mortgage Loan Documents) to the effect that the Trustee on behalf of the Certificateholders has a first priority security interest in the defeasance deposit and the “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii), and the assignment thereof is valid and enforceable; such opinion, together with any other certificates or documents to be required in connection with such defeasance shall be in form and substance acceptable to the Master Servicer.
(iii) The Master Servicer shall obtain, to the extent the Mortgage Loan Documents grant the mortgagee discretion to so obtain, a certificate (which shall be an expense of the related Mortgagor to the extent consistent with the related Mortgage Loan Documents) from an Independent certified public accountant certifying that the “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii), comply with the requirements of the related Loan Agreement or Mortgage.
(iv) To the extent consistent with the related Mortgage Loan Documents, prior to permitting release of any Mortgaged Properties through defeasance, the Master Servicer shall (at the Mortgagor’s expense) obtain a Rating Agency Confirmation; provided that the Master Servicer shall not be required to obtain such Rating Agency Confirmation from any Rating Agency to the extent that the Master Servicer has delivered a defeasance certificate to each Rating Agency substantially in the form of Exhibit DD to this Agreement for any Mortgage Loan that, at the time of such defeasance, is (x) not one of the ten largest Mortgage Loans by Stated Principal Balance, (y) a Mortgage Loan with a Stated Principal Balance equal to or less than $35,000,000 and (z) a Mortgage Loan that represents less than 5% of the Stated Principal Balance of all Mortgage Loans.
(v) If the Mortgage Loan or Serviced Whole Loan permits the related Mortgagor or the lender or its designee to cause an accommodation Mortgagor to assume such defeased obligations, the Master Servicer shall, or shall cause the Mortgagor to, establish at the Mortgagor’s cost and expense (and shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to consent to such assumption) a special purpose bankruptcy-remote entity to assume such obligations, as to which the Trustee and the Certificate Administrator has received a Rating Agency Confirmation (if such confirmation is required pursuant to the then most recently published guidelines of the Rating Agencies).
(vi) To the extent consistent with the related Mortgage Loan Documents, the Master Servicer shall require the related Mortgagor to pay all costs and expenses incurred in connection with the defeasance of the related Mortgage Loan or Serviced Whole Loan. In the event that the Mortgagor is not required to pay any such costs and expenses under
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the terms of the Mortgage Loan Documents, such costs and expenses shall be Additional Trust Fund Expenses.
(vii) In no event shall the Master Servicer have liability to any party hereto or beneficiary hereof for obtaining a Rating Agency Confirmation (or conditioning approval of defeasance on the delivery of a Rating Agency Confirmation) or for imposing conditions to approval of a defeasance on the satisfaction of conditions that are consistent with the Servicing Standard but are not required under Rating Agency guidelines (provided that this shall not protect the Master Servicer from any liability that may be imposed as a result of the violation of applicable law or the Mortgage Loan Documents).
(viii) The Master Servicer may accept as defeasance collateral of any “government security,” within the meaning of Treasury Regulation’s Section 1.860G-(2)(a)(8)(ii), notwithstanding any more restrictive requirements in the Mortgage Loan Documents; provided that the Master Servicer has received an Opinion of Counsel that acceptance of such defeasance collateral will not endanger the status of either Trust REMIC as a REMIC or result in the imposition of a tax upon either Trust REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property” as set forth in Section 860G(c) of the Code).
(e) Notwithstanding any other provision of this Section 3.09, without any other approval or consent, the Master Servicer (for Mortgage Loans and Serviced Whole Loans other than Specially Serviced Loans) or the Special Servicer (for Specially Serviced Loans) may grant and process a Mortgagor’s request for (i) consent to subject the related Mortgaged Property to an immaterial easement, a right of way or similar agreement for utilities, access, parking, public improvements or another purpose, (ii) consent to subordination of the related Mortgage Loan or Serviced Whole Loan to such easement, right of way or similar agreement and (iii) consent to any other matter that is not a Major Decision or (other than in the case of the Special Servicer) Special Servicer Decision; provided that the Master Servicer or Special Servicer, as applicable, (a) shall have determined in accordance with the Servicing Standard that such easement, right of way or similar agreement or other matter will not materially and adversely affect the operation or value of such Mortgaged Property or the Trust Fund’s interest in the Mortgaged Property and (b) shall have determined that such easement, right of way or similar agreement or other matter will not cause either Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding. The Master Servicer or the Special Servicer may rely on an Opinion of Counsel in making any such determination under clause (b) above.
Section 3.10 Appraisal Reductions; Realization Upon Defaulted Mortgage Loans.
(a) Promptly upon the occurrence of an Appraisal Reduction Event (other than with respect to a Non-Serviced Mortgage Loan), the Special Servicer shall use reasonable efforts to obtain an updated Appraisal of the Mortgaged Property or REO Property, as the case may be, the costs of which shall be advanced by, and reimbursable to the Master Servicer, as a
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Property Advance (or as an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account if such Property Advance would be a Nonrecoverable Advance); provided, however, that the Special Servicer shall not be required to obtain an updated Appraisal of any Mortgaged Property with respect to which there exists an Appraisal which is less than nine months old unless the Special Servicer determines in accordance with the Servicing Standard that such previously obtained Appraisal is materially inaccurate. With respect to Mortgage Loans for which an Appraisal Reduction Event has occurred and still exists, the Special Servicer shall obtain annual letter updates to any updated Appraisal. Any Appraisal prepared in order to determine the Appraisal Reduction Amount with respect to a Serviced Whole Loan shall be delivered by the Special Servicer, upon request, to each related Companion Loan Holder.
The Certificate Principal Balance of each of the Certificates shall be notionally reduced (solely for purposes of determining the identity of the Non-Reduced Certificates and the Controlling Class as well as the occurrence of a Control Termination Event) as of any date of determination to the extent of the Appraisal Reduction Amount(s) allocated to such Class on the preceding Distribution Date. The aggregate Appraisal Reduction Amount for any Distribution Date shall be applied to notionally reduce the Certificate Principal Balances of the following Classes of Certificates in the following order of priority: first, to the Class NR Certificates; second, to the Class F Certificates; third, to the Class E Certificates; fourth, to the Class D Certificates; fifth, to the Class C Certificates; sixth, to the Class B Certificates; seventh, to the Class A-S Certificates; and finally, pro rata to the (i) Class A-1 Certificates, (ii) Class A-2 Certificates, (iii) Class A-3 Certificates, (iv) Class A-4 Certificates and (v) Class A-SB Certificates, based on their respective Certificate Principal Balances (provided in each case that no Certificate Principal Balance in respect of any such Class may be notionally reduced below zero). With respect to any Appraisal Reduction Amount calculated for the purposes of determining the Non-Reduced Certificates or the Controlling Class, as well as the occurrence of a Control Termination Event, the appraised value of the related Mortgaged Property shall be determined on an “as-is” basis.
The Special Servicer shall promptly notify the Certificate Administrator and Master Servicer in writing of the determination of any such Appraisal Reduction Amount, and the Certificate Administrator upon receipt of such notice shall promptly post notice of such determination of any such Appraisal Reduction Amount to the Certificate Administrator’s website.
Any Appraisal Reduction Amounts with respect to a Serviced Whole Loan (other than the Charles River Plaza North Whole Loan) shall be allocated to the related Mortgage Loan and each related Serviced Companion Loan on a pro rata and pari passu basis in accordance with the respective outstanding principal balances of such related Mortgage Loan and the related Serviced Companion Loan(s). Any Appraisal Reduction Amounts with respect to the Charles River Plaza North Whole Loan shall be allocated first to the related Subordinate Companion Loan, up to its principal balance, and then to the related Mortgage Loan and the related Pari Passu Companion Loan(s) on a pro rata and pari passu basis in accordance with the respective outstanding principal balances of such related Mortgage Loan and the related Pari Passu Companion Loan(s).
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The Holders of Certificates representing the majority of the Certificate Principal Balance of any Class of Control Eligible Certificates that is or would be determined to no longer be the Controlling Class (such Class, an “Appraised-Out Class”) as a result of an allocation of an Appraisal Reduction Amount in respect of such Class shall have the right to challenge the Special Servicer’s Appraisal Reduction Amount determination and, at their sole expense, obtain a second Appraisal of any Mortgage Loan for which an Appraisal Reduction Event has occurred (such Holders, the “Requesting Holders”). The Requesting Holders shall cause the Appraisal to be prepared on an “as-is” basis by an MAI Appraiser in accordance with Uniform Standards of Professional Appraisal Practice (as confirmed by the Special Servicer), and the Appraisal scope and analysis (but not the valuation) shall be reasonably acceptable to the Special Servicer in accordance with the Servicing Standard. The Requesting Holders shall provide the Special Servicer with notice of their intent to challenge the Special Servicer’s Appraisal Reduction Amount determination within 10 days of the Requesting Holders’ receipt of written notice of the determination of such Appraisal Reduction Amount.
In addition to the foregoing, the Holders of Certificates representing the majority of the Certificate Principal Balance of any Appraised-Out Class shall have the right, at their sole expense, to require the Special Servicer to order an additional Appraisal of any Mortgage Loan for which an Appraisal Reduction Event has occurred if an event has occurred at or with regard to the related Mortgaged Property or Mortgaged Properties (including, without limitation, a material change in market values) that would have a material effect on its Appraised Value, and the Special Servicer shall use its reasonable efforts to ensure that such Appraisal is delivered within 30 days from receipt of such Holders’ written request and shall ensure that such Appraisal is prepared on an “as-is” basis by an Appraiser in accordance with MAI standards; provided that the Special Servicer shall not be required to obtain such Appraisal if the Special Servicer determines in accordance with the Servicing Standard that no events at or with regard to the related Mortgaged Property or Mortgaged Properties (including, without limitation, a material change in market values) have occurred that would have a material effect on such Appraised Value of the related Mortgaged Property or Mortgaged Properties.
Upon receipt of an Appraisal provided by, or requested by, Holders of an Appraised-Out Class pursuant to this Section and any other information reasonably requested by the Special Servicer from the Master Servicer reasonably required to calculate or recalculate the Appraisal Reduction Amount, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such additional Appraisal, any recalculation of the Appraisal Reduction Amount is warranted and, if so warranted, shall recalculate such Appraisal Reduction Amount based upon such additional Appraisal. If required by any such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class. The Special Servicer shall promptly deliver notice to the Certificate Administrator of any such determination and recalculation, and the Certificate Administrator shall promptly post such notice to the Certificate Administrator’s Website. Notwithstanding the foregoing, the holder of the Charles River Plaza North Subordinate Companion Loan shall be entitled to post cash collateral or a letter of credit pursuant to the Charles River Plaza North Co-Lender Agreement to offset any Appraisal Reduction Amount with respect to the Charles River Plaza North Whole Loan and/or to require the Special Servicer to order a new appraisal to recalculate any appraisal reductions, all in accordance with and subject to the conditions of the Charles River Plaza North Co-Lender Agreement. If the holder of the Charles River Plaza North Subordinate Companion
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Loan delivers any “Threshold Event Collateral” (as defined in the Charles River Plaza North Co-Lender Agreement), then such Threshold Event Collateral shall be held and maintained by the Master Servicer on behalf of the Trustee, for the benefit of the Certificateholders, and the Charles River Plaza North Companion Loan Holders, as their interests may appear, all in accordance with the Charles River Plaza North Co-Lender Agreement. If such Threshold Event Collateral is delivered in the form of cash, then the Master Servicer shall deposit such cash in a separate segregated Eligible Account (or a sub-account of an Eligible Account, provided that for purposes of calculations hereunder such sub-account shall be treated as a separate account) maintained in its name on behalf of the beneficiaries contemplated by the prior sentence, and shall invest such funds in Permitted Investments, at the direction and for the benefit of the holder of the Charles River Plaza North Subordinate Companion Loan. Such funds (or, alternatively, any letter of credit and draws thereon) shall be treated as an “outside reserve fund” under the REMIC Provisions, which, together with any reimbursement from the Lower Tier REMIC, is beneficially owned by the holder of the Charles River Plaza North Subordinate Companion Loan for federal income tax purposes, which holder of the Charles River Plaza North Subordinate Companion Loan shall remain liable for any taxes payable on income or gain with respect thereto. The Master Servicer shall apply any Threshold Event Collateral held in the form of cash, and shall draw upon any Threshold Event Collateral held in the form of a letter of credit and apply such draws, to make such payments and reimbursements as are contemplated by the Charles River Plaza North Co-Lender Agreement, including (to the maximum extent permitted) to pay and/or reimburse any and all losses, costs and expenses incurred by the Trust and intended by the Charles River Plaza North Co-Lender Agreement to be paid or reimbursed out of such Threshold Event Collateral.
Appraisals that are permitted to be presented by, or obtained by the Special Servicer at the request of, Holders of an Appraised-Out Class shall be in addition to any Appraisals that the Special Servicer may otherwise be required to obtain in accordance with the Servicing Standard or this Agreement without regard to any appraisal requests made by any Holder of an Appraised-Out Class.
(b) In connection with any foreclosure, enforcement of the Mortgage Loan Documents or other acquisition, the Master Servicer in accordance with Section 3.20 of this Agreement shall pay the out-of-pocket costs and expenses in any such proceedings as a Property Advance unless the Master Servicer or Special Servicer determines, in accordance with the Servicing Standard, that such Advance would constitute a Nonrecoverable Advance (in which case such costs shall be an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account). The Master Servicer shall be entitled to reimbursement of Advances (with interest at the Advance Rate) made pursuant to the preceding sentence to the extent permitted by Section 3.06(a)(ii) of this Agreement.
Subject to Section 3.21 of this Agreement, if the Special Servicer elects to proceed with a non-judicial foreclosure in accordance with the laws of the state where the Mortgaged Property is located, the Special Servicer shall not be required to pursue a deficiency judgment against the related Mortgagor, if available, or any other liable party if the laws of the state do not permit such a deficiency judgment after a non-judicial foreclosure or if the Special Servicer determines, in accordance with the Servicing Standard, that the likely recovery if a deficiency judgment is obtained will not be sufficient to warrant the cost, time, expense and/or
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exposure of pursuing the deficiency judgment and such determination is evidenced by an Officers’ Certificate delivered to the Trustee, the Certificate Administrator, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and any related Companion Loan Holder; provided that to the extent the related Serviced Companion Loan has been included in a securitization transaction, all notices and documentation required to be provided to the related Serviced Companion Loan Holder shall be provided to the Other Master Servicer under such securitization transaction.
In the event that title to any Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be issued to the Trustee, to a co-trustee or to its nominee (which shall not include the Master Servicer but may be a single member limited liability company owned by the Trust and managed by the Special Servicer pursuant to the terms of this Agreement) or a separate trustee or co-trustee on behalf of the Trustee as holder of the Lower-Tier Regular Interests and on behalf of the holders of the Certificates and, if applicable, the related Serviced Companion Loan Holders. Notwithstanding any such acquisition of title and cancellation of the related Mortgage Loan or Serviced Whole Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be considered to be an REO Mortgage Loan held in the Trust Fund until such time as the related REO Property shall be sold by the Trust and shall be reduced only by collections net of expenses.
(c) Notwithstanding any provision to the contrary, the Special Servicer shall not acquire for the benefit of the Trust Fund any personal property pursuant to this Section 3.10 unless either:
(i) such personal property is (in the good faith judgment of the Special Servicer) incident to real property (within the meaning of Code Section 856(e)(1)) so acquired by the Special Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Trust Fund) to the effect that the holding of such personal property by the Trust Fund will not cause the imposition of a tax on a Trust REMIC under the REMIC Provisions or cause a Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes at any time that any Certificate is outstanding.
(d) Notwithstanding any provision to the contrary in this Agreement, neither the Special Servicer nor the Master Servicer shall, on behalf of the Trust Fund or, if applicable, the related Companion Loan Holder, obtain title to any direct or indirect partnership or membership interest or other equity interest in any Mortgagor pledged pursuant to any pledge agreement, unless the Master Servicer or the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Trust Fund) to the effect that the holding of such partnership or membership interest or other equity interest by the Trust Fund will not cause the imposition of a tax on a Trust REMIC under the REMIC Provisions or cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes or cause the Grantor Trust to fail to qualify as a grantor trust at any time that any Certificate is outstanding.
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(e) Notwithstanding any provision to the contrary contained in this Agreement, the Special Servicer shall not, on behalf of the Trust Fund, or, if applicable, the related Serviced Companion Loan Holders, obtain title to a Mortgaged Property as a result of foreclosure or by deed in lieu of foreclosure or otherwise, or obtain title to any direct or indirect partnership or membership interest in any Mortgagor pledged pursuant to a pledge agreement and thereby be the beneficial owner of a Mortgaged Property, and shall not otherwise acquire possession of, or take any other action with respect to, any Mortgaged Property if, as a result of any such action, the Custodian, the Trustee, the Certificate Administrator or the Trust Fund or the Certificateholders or, if applicable, the related Companion Loan Holders, would be considered to hold title to, or be a mortgagee-in-possession of, or to be an “owner” or “operator” of, such Mortgaged Property within the meaning of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time, or any comparable law, unless the Special Servicer has previously determined in accordance with the Servicing Standard, based on an updated environmental assessment report prepared by an Independent Person who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Trust Fund and, if applicable, any related Serviced Companion Loan Holder (as a collective whole) to take such actions as are necessary to bring such Mortgaged Property in compliance therewith; and
(ii) there are no circumstances present at such Mortgaged Property relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such Hazardous Materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the Trust Fund and, if applicable, any related Serviced Companion Loan Holder(s) (as a collective whole as if the Trust Fund and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender (and, in the case of the Charles River Plaza North Whole Loan, taking into account the subordinate nature of any related Subordinate Companion Loan) to take such actions with respect to the affected Mortgaged Property as could be required by such law or regulation. In the event that the environmental assessment first obtained by the Special Servicer with respect to a Mortgaged Property indicates that such Mortgaged Property may not be in compliance with applicable environmental laws or that Hazardous Materials may be present but does not definitively establish such fact, the Special Servicer shall cause such further environmental tests to be conducted by an Independent Person who regularly conducts such tests as the Special Servicer shall deem prudent to protect the interests of Certificateholders and any related Companion Loan Holder. Any such tests shall be deemed part of the environmental assessment obtained by the Special Servicer for purposes of this Section 3.10.
In the event that the Special Servicer seeks to obtain title to a Mortgaged Property on behalf of the Trust Fund and any related Companion Loan Holder, the Special Servicer may, in its discretion, establish a single member limited liability company with the Trust Fund and, if
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applicable, any related Serviced Companion Loan Holder, as the sole owner to hold title to such Mortgaged Property.
(f) The environmental assessment contemplated by Section 3.10(e) of this Agreement shall be prepared within three months of the determination that such assessment is required by any Independent Person who regularly conducts environmental audits for purchasers of commercial property where the Mortgaged Property is located, as determined by the Special Servicer in a manner consistent with the Servicing Standard and, if applicable, any secured creditor impaired property policy issued on or prior to the Closing Date with respect to any Mortgage Loan (including that the environmental assessment identify any potential pollution conditions (as defined in the environmental insurance policy) with respect to the related Mortgaged Property). The Master Servicer shall advance the cost of preparation of such environmental assessments unless the Master Servicer determines, in accordance with the Servicing Standard, that such Advance would be a Nonrecoverable Advance (in which case such costs shall be an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account). The Master Servicer shall be entitled to reimbursement of Advances (with interest at the Advance Rate) made pursuant to the preceding sentence in the manner set forth in Section 3.06 of this Agreement. Copies of any environmental assessment prepared pursuant to Section 3.10(e) of this Agreement shall be provided to the Certificateholder of any Regular Certificates and any related Companion Loan Holder upon written request to the Special Servicer.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(i) of this Agreement that a Mortgaged Property is not in compliance with applicable environmental laws but that it is in the best economic interest of the Trust Fund and any related Companion Loan Holder(s), as a collective whole as if the Trust Fund and any related Companion Loan Holder constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance therewith, or if the Special Servicer determines pursuant to Section 3.10(e)(ii) of this Agreement that the circumstances referred to therein relating to Hazardous Materials are present but that it is in the best economic interest of the Trust Fund and any related Companion Loan Holder(s), as a collective whole as if the Trust Fund and any related Companion Loan Holder(s) constituted a single lender, to take such action with respect to the containment, clean-up or remediation of Hazardous Materials affecting such Mortgaged Property as is required by law or regulation, the Special Servicer shall take such action as it deems to be in the best economic interest of the Trust Fund and any related Companion Loan Holder(s), as a collective whole as if the Trust Fund and any related Companion Loan Holder(s) constituted a single lender. The Master Servicer shall pay the cost of any such compliance, containment, clean-up or remediation from the Collection Account.
(h) The Special Servicer shall notify the Master Servicer of any abandoned and/or foreclosed properties which require reporting to the IRS and shall provide the Master Servicer with all information regarding forgiveness of indebtedness and required to be reported with respect to any Mortgage Loan or Serviced Companion Loan which is abandoned or foreclosed and the Master Servicer shall report to the IRS and the related Mortgagor, in the manner required by applicable law, such information and the Master Servicer shall report, via IRS Form 1099C, all forgiveness of indebtedness to the extent such information has been provided to the Master Servicer by the Special Servicer. Upon request, the Master Servicer shall
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deliver a copy of any such report to the Trustee, the Certificate Administrator and, if affected, to any related Companion Loan Holder.
Section 3.11 Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files. Upon the payment in full of any Mortgage Loan or Serviced Whole Loan or the receipt by the Master Servicer or the Special Servicer of a notification that payment in full has been escrowed in a manner customary for such purposes, the Master Servicer or the Special Servicer shall immediately notify the Trustee, the Certificate Administrator and the Custodian and, if affected, the related Companion Loan Holder by delivery of a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the Collection Account pursuant to Section 3.05 of this Agreement have been or will be so deposited) of a Servicing Officer and shall request delivery to it of the Mortgage File. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Master Servicer or Special Servicer and delivery to the Custodian of a Request for Release, the Certificate Administrator shall promptly cause the Custodian to release the Mortgage File (or any portion thereof) designated in such Request for Release to the Master Servicer or Special Servicer, as applicable. Upon return of the foregoing to the Custodian, or in the event of a liquidation or conversion of the Mortgage Loan or Serviced Whole Loan into an REO Property, receipt by the Trustee and the Certificate Administrator of a certificate of a Servicing Officer stating that such Mortgage Loan or Serviced Whole Loan was liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the Collection Account have been so deposited, or that such Mortgage Loan or Serviced Whole Loan has become an REO Property, the Custodian shall deliver a copy of the Request for Release to the Master Servicer or Special Servicer, as applicable.
Within three (3) Business Days, after receipt of written certification of a Servicing Officer, the Trustee shall execute and deliver to the Special Servicer any court pleadings, requests for trustee’s sale or other documents prepared by the Special Servicer, its agents or attorneys and reasonably acceptable to the Trustee, necessary to the foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal action brought to obtain judgment against any Mortgagor on the Mortgage Loan or Serviced Whole Loan, or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Loan Documents or otherwise available at law or in equity. Each such certification shall include a request that such pleadings or documents be executed by the Trustee and a statement as to the reason such documents or pleadings are required, and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the Mortgage or other security agreement, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale.
If from time to time, pursuant to the terms of the Co-Lender Agreement and the applicable Other Pooling and Servicing Agreement related to a Non-Serviced Mortgage Loan, and as appropriate for enforcing the terms of, or otherwise properly servicing, such Non-Serviced Mortgage Loan, the applicable Other Master Servicer, the applicable Other Special Servicer or other similar party requests delivery to it of the original Note(s) for such Non-
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Serviced Mortgage Loan, then such party shall deliver a Request for Release in the form of Exhibit C attached hereto to the Custodian, and the Custodian shall release or cause the release of such original Note(s) to the requesting party or its designee. In connection with the release of the original Note(s) for a Non-Serviced Mortgage Loan in accordance with the preceding sentence, the Custodian shall obtain such documentation as is appropriate to evidence the holding by the applicable Other Master Servicer, the applicable Other Special Servicer or such other similar party, as the case may be, of such original Note(s) as custodian on behalf of and for the benefit of the Trustee.
Section 3.12 Servicing Fees, Trustee/Certificate Administrator Fees and Special Servicing Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall be entitled, with respect to each Mortgage Loan and REO Mortgage Loan (including the Non-Serviced Mortgage Loans) and each Companion Loan and REO Companion Loan that is included as part of a Serviced Whole Loan and each Collection Period, to the Servicing Fee, which shall be payable from amounts on deposit in the Collection Account and/or, in the case of a Serviced Whole Loan or portion thereof, the related Serviced Whole Loan Custodial Account as set forth in Section 3.06(a)(iii) and Section 3.06(a)(vi) and/or Section 3.06A of this Agreement, as applicable. In addition, the Master Servicer shall be entitled to receive, as additional servicing compensation, (i) 100% of any Excess Modification Fees with respect to a modification, waiver, extension or amendment of a non-Specially Serviced Mortgage Loan agreed to by the Master Servicer pursuant to Section 3.24 of this Agreement that did not require the approval of the Special Servicer, (ii) 50% of any Excess Modification Fees with respect to a modification, waiver, extension or amendment of a non-Specially Serviced Mortgage Loan consented to by the Special Servicer pursuant to Section 3.24 of this Agreement (whether or not the Special Servicer elects to handle all related processing), (iii) 100% of any fee actually paid by a Mortgagor in connection with a defeasance of a Serviced Loan as contemplated under Section 3.09 of this Agreement (provided, however, that 50% of the portion of any fees payable solely in connection with any modification, waiver, amendment or consent executed in connection with a defeasance transaction for which the consent of the Special Servicer is required under this Agreement, shall be paid by the Master Servicer to the Special Servicer), (iv) 100% of any Assumption Fees with respect to a non-Specially Serviced Mortgage Loan consented to by the Master Servicer that did not require the approval of the Special Servicer, (v) 50% of any Assumption Fees with respect to a non-Specially Serviced Mortgage Loan consented to by the Special Servicer (whether or not the Special Servicer elects to handle all related processing), (vi) the aggregate Prepayment Interest Excess (exclusive of any portion thereof attributable to a Non-Serviced Mortgage Loan), but only to the extent such amount is not required to be included in any Compensating Interest Payment, in each case to the extent received and not required to be deposited or retained in the Collection Account pursuant to Section 3.05 of this Agreement, (vii) 100% of Ancillary Fees (other than fees for insufficient or returned checks) and assumption application fees actually received from Mortgagors on non-Specially Serviced Mortgage Loan, (viii) 100% of Consent Fees with respect to a non-Specially Serviced Mortgage Loan that did not require the approval of the Special Servicer, (ix) 50% of any Consent Fees with respect to a non-Specially Serviced Mortgage Loan consented to by the Special Servicer (whether or not the Special Servicer elects to handle all related processing), (x) 100% of Excess Penalty Charges paid by the Mortgagors with respect to any Mortgage Loan
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(other than a Non-Serviced Mortgage Loan) other than Excess Penalty Charges accrued during the period such Mortgage Loan is a Specially Serviced Loan, (xi) 100% of fees for insufficient or returned checks actually received from Mortgagors on all Mortgage Loans (other than a Non-Serviced Mortgage Loan) and Serviced Companion Loans, and (xii) in the case of any ARD Loan, 100% of any extension fee actually paid by the related Mortgagor in connection with the Mortgagor’s option to exercise the related Anticipated Repayment Date option pursuant to the related Loan Documents unless the Special Servicer’s consent is required, then 50% of any such extension fee; provided, however, that the Master Servicer shall not be entitled to apply or retain any amounts described in clauses (i) through (v) above as additional compensation with respect to a specific Mortgage Loan or Whole Loan, as applicable, with respect to which a default or event of default thereunder has occurred and is continuing unless and until such default or event of default has been cured (or has been waived in accordance with the terms of this Agreement) and all delinquent amounts required to have been paid by the Mortgagor, Advance Interest Amounts and Additional Trust Fund Expenses (other than Special Servicing Fees, Workout Fees and Liquidation Fees) both (x) due with respect to such Mortgage Loan or Whole Loan, as applicable, and (y) in the case of expense items, that arose within the last 12 months, have been paid. The Master Servicer shall also be entitled pursuant to, and to the extent provided for in Section 3.06(a)(iii), 3.06A and 3.07(b), to withdraw from the Collection Account and the Serviced Whole Loan Custodial Accounts and to receive from any Mortgagor Accounts (to the extent not payable to the related Mortgagor under a Mortgage Loan or Serviced Whole Loan or applicable law) any interest or other income earned on deposits therein. Interest or other income earned on funds in the Collection Account, Serviced Whole Loan Custodial Account and Mortgagor Accounts (to the extent consistent with the related Mortgage Loan Documents), shall be paid to the Master Servicer as additional servicing compensation and interest or other income earned on funds in any REO Account shall be payable to the Special Servicer.
Midland Loan Services, a Division of PNC Bank, National Association and any successor holder of the Excess Servicing Fee Rights shall be entitled, at any time, at its own expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in either case, to any Qualified Institutional Buyer or Institutional Accredited Investor (other than a Plan); provided that no such transfer, sale, pledge or other assignment shall be made unless (i) that transfer, sale, pledge or other assignment is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws and is otherwise made in accordance with the Securities Act and such state securities laws, (ii) the prospective transferor shall have delivered to the Depositor a certificate substantially in the form attached as Exhibit CC-1 to this Agreement, and (iii) the prospective transferee shall have delivered to Midland Loan Services, a Division of PNC Bank, National Association and the Depositor a certificate substantially in the form attached as Exhibit CC-2 to this Agreement. None of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor or the Certificate Registrar is obligated to register or qualify an Excess Servicing Fee Right under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee Right without registration or qualification. Midland Loan Services, a Division of PNC Bank, National Association and each holder of an Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other assignment of such Excess Servicing Fee Right shall, and Midland Loan Services, a Division of PNC Bank, National Association hereby agrees, and each such holder of an Excess Servicing Fee Right by its acceptance of such Excess Servicing Fee Right shall be
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deemed to have agreed, in connection with any transfer of such Excess Servicing Fee Right effected by such Person, to indemnify the Certificateholders, the Trust, the Depositor, the Underwriters, the Initial Purchasers, the Certificate Administrator, the Trustee, the Custodian, the Master Servicer, the Operating Advisor, the Certificate Registrar and the Special Servicer against any liability that may result if such transfer is not exempt from registration and/or qualification under the Securities Act or other applicable federal and state securities laws or is not made in accordance with such federal and state laws or in accordance with the foregoing provisions of this paragraph. By its acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed to have agreed not to use or disclose any information received in connection with its acquisition and holding of such Excess Servicing Fee Right in any manner that could result in a violation of any provision of the Securities Act or other applicable securities laws or that would require registration of such Excess Servicing Fee Right or any Certificate pursuant to the Securities Act. From time to time following any transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the Person then acting as the Master Servicer shall pay, out of each amount paid to such Master Servicer as Servicing Fees with respect to each related Mortgage Loan or REO Mortgage Loan, as the case may be, the related Excess Servicing Fees to the holder of such Excess Servicing Fee Right within one (1) Business Day following the payment of such Servicing Fees to the Master Servicer, in each case in accordance with payment instructions provided by such holder in writing to the Master Servicer. The holder of an Excess Servicing Fee Right shall not have any rights under this Agreement except as set forth in the preceding sentences of this paragraph. None of the Certificate Administrator, the Certificate Registrar, the Operating Advisor, the Depositor, the Special Servicer, the Trustee or the Custodian shall have any obligation whatsoever regarding payment of the Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee Right.
Except as otherwise provided herein, the Master Servicer shall pay all expenses incurred by it in connection with its servicing activities hereunder, including all fees of any Sub-Servicers retained by it.
The Master Servicer will not be entitled to retain any portion of Excess Interest paid on any Mortgage Loan.
Notwithstanding anything herein to the contrary, in the case of a Serviced Whole Loan, in no event shall Servicing Fees with respect to the related Mortgage Loan (including an REO Mortgage Loan) be payable out of payments and other collections with respect to the related Companion Loan(s), and in no event shall Servicing Fees with respect to the related Companion Loan(s) (including an REO Companion Loan) be payable out of payments and other collections with respect to the related Mortgage Loan or the Mortgage Pool. In addition, with respect to the Charles River Plaza North Subordinate Companion Loan, in no event shall Servicing Fees with respect to such Companion Loan (including an REO Companion Loan) be payable out of payments and other collections with respect to the related Mortgage Loan or the Mortgage Pool. This paragraph is in no way intended to limit the rights, if any, of the Master Servicer under the related Co-Lender Agreement to seek payment of unpaid Servicing Fees with respect to any Pari Passu Companion Loan from the related Companion Loan Holder.
(b) As compensation for its activities hereunder, on each Distribution Date the Trustee shall be entitled with respect to each Mortgage Loan to its portion of the
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Trustee/Certificate Administrator Fee, and the Certificate Administrator shall be entitled with respect to each Mortgage Loan to its portion of the Trustee/Certificate Administrator Fee. The Certificate Administrator shall pay the Trustee the Trustee’s portion of the Trustee/Certificate Administrator Fee. Except as otherwise provided herein, the Trustee/Certificate Administrator Fee includes all routine expenses of the Trustee, the Certificate Registrar, the Paying Agent, the Certificate Administrator and the Authenticating Agent. Each of the Trustee’s and Certificate Administrator’s rights to the Trustee/Certificate Administrator Fee may not be transferred in whole or in part except in connection with the transfer of all of the Trustee’s or Certificate Administrator’s, as applicable, responsibilities and obligations under this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer shall be entitled with respect to each Specially Serviced Loan (including each Companion Loan that is included as part of each Serviced Whole Loan) and each Interest Accrual Period, to the Special Servicing Fee, which shall be payable from amounts on deposit in the Collection Account and/or, in the case of a Serviced Whole Loan or portion thereof, the related Serviced Whole Loan Custodial Account as set forth in Section 3.06(a)(iv) and Section 3.06(a)(vi) and 3.06A. The Special Servicer’s rights to the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer’s responsibilities and obligations under this Agreement. The Special Servicer shall not be entitled to any Special Servicing Fee with respect to any Non-Serviced Mortgage Loan. In addition, the Special Servicer shall be entitled to receive, as additional servicing compensation, (i) 50% of any Excess Modification Fees with respect to a modification, waiver, extension or amendment of a non-Specially Serviced Loan and/or any Serviced Companion Loan consented to by the Special Servicer pursuant to Section 3.24 of this Agreement (whether or not the Special Servicer elects to handle all related processing), (ii) 100% of any Excess Modification Fees with respect to a modification, waiver, extension or amendment of a Specially Serviced Loan consented to by the Special Servicer pursuant to Section 3.24 of this Agreement, (iii) 100% of any Assumption Fees with respect to a Specially Serviced Loan, (iv) 50% of any Assumption Fees with respect to a non-Specially Serviced Loan and/or any Serviced Companion Loan consented to by the Special Servicer (whether or not the Special Servicer elects to handle all related processing), (v) 100% of Ancillary Fees (other than fees for insufficient or returned checks) and assumption application fees actually received from Mortgagors on Specially Serviced Loans, (vi) 100% of Consent Fees with respect to a Specially Serviced Loan, (vii) 50% of any Consent Fees with respect to a non-Specially Serviced Loan and/or any Serviced Companion Loan consented to by the Special Servicer (whether or not the Special Servicer elects to handle all related processing), (viii) 100% of Excess Penalty Charges paid by the Mortgagors with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) and/or Serviced Whole Loan accrued during the period any such Mortgage Loan is a Specially Serviced Loan, (ix) any interest or other income earned on deposits in the REO Accounts for any REO Mortgage Loan (other than the Non-Serviced Mortgage Loans). The Special Servicer shall not be entitled to any Special Servicing Fees, Liquidation Fees or Workout Fees, with respect to the Non-Serviced Mortgage Loans, (x) in the case of an ARD Loan that is a Specially Serviced Loan (other than the Non-Serviced Mortgage Loans) for which it is the Special Servicer, 100% of any extension fee actually paid by the related Mortgagor in connection with the Mortgagor’s option to exercise the related Anticipated Repayment Date option pursuant to the related Loan Documents and (xi) in the case of an ARD Loan that is a non-Specially Serviced Loan (other than the Non-Serviced Mortgage Loans) for which it is the Special Servicer, 50% of any extension fee actually paid by the related Mortgagor
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in connection with the Mortgagor’s option to exercise the related Anticipated Repayment Date option pursuant to the related Loan Documents consented to by the Special Servicer (whether or not the Special Servicer elects to handle all related processing).
Except as otherwise provided herein, the Special Servicer shall pay all expenses incurred by it in connection with its servicing activities hereunder.
The Special Servicer shall also be entitled to additional servicing compensation in the form of a Workout Fee with respect to each Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan or Serviced Whole Loan for so long as it remains a Corrected Mortgage Loan. The Special Servicer shall not be entitled to any Workout Fee with respect to any Non-Serviced Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to be payable if such loan again becomes a Specially Serviced Loan; provided that a new Workout Fee will become payable if and when such Specially Serviced Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated (other than for cause) or resigns it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans or Serviced Whole Loans (1) that became Corrected Mortgage Loans prior to the time of that termination or resignation (except the Workout Fees will no longer be payable if any such Mortgage Loan or Serviced Whole Loan subsequently becomes a Specially Serviced Loan); and (2) for which the resigning or terminated Special Servicer had cured the event of default through a modification, restructuring or workout negotiated by the Special Servicer and evidenced by a signed writing, but which had not as of the time the Special Servicer resigned or was terminated become a Corrected Mortgage Loan solely because the Mortgagor had not had sufficient time to make three consecutive timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan as a result of the Mortgagor making such three consecutive timely Monthly Payments. In either case, the successor special servicer will not be entitled to any portion of such Workout Fees. The Special Servicer shall also be entitled to additional servicing compensation in the form of a Liquidation Fee (other than with respect to the Non-Serviced Mortgage Loans) payable out of the Liquidation Proceeds prior to the deposit of the Net Liquidation Proceeds in the Collection Account or the Serviced Whole Loan Custodial Account, as applicable. However, no Liquidation Fee will be payable in connection with, or out of, Liquidation Proceeds as set forth in the final two provisos of the definition of “Liquidation Fee” herein. Notwithstanding anything herein to the contrary, the Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to any specific collections or proceeds on any Mortgage Loan or Serviced Whole Loan. For purposes of the foregoing provisions of this Section 3.12(c), a termination and removal of the Special Servicer under Section 6.08 of this Agreement shall be deemed to constitute a termination without cause.
If at any time a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan, the Special Servicer shall use its reasonable efforts to collect the amount of any Special Servicing Fee, Liquidation Fee and/or Workout Fee from the related Mortgagor pursuant to the related Mortgage Loan Documents, including exercising all remedies available under such Mortgage Loan Documents that would be in accordance with the Servicing Standard, specifically taking into account the costs or likelihood of success of any such collection efforts and the Realized Loss that would be incurred by Certificateholders in connection therewith as opposed to the Realized Loss that would be incurred as a result of not collecting such amounts from the related Mortgagor.
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The Special Servicer shall not be entitled to any Liquidation Fee with respect to any Non-Serviced Mortgage Loan or any Non-Serviced Companion Loan.
Notwithstanding anything herein to the contrary, in the case of a Serviced Whole Loan, in no event shall Special Servicing Compensation with respect to the related Mortgage Loan (including an REO Mortgage Loan) be payable out of payments and other collections with respect to the related Pari Passu Companion Loan, and in no event shall Special Servicing Compensation with respect to the related Pari Passu Companion Loan (including an REO Companion Loan) be payable out of payments and other collections with respect to the related Mortgage Loan or the Mortgage Pool. In addition, with respect to the Charles River Plaza North Subordinate Companion Loan, in no event shall Special Servicing Compensation with respect to such Companion Loan (including an REO Companion Loan) be payable out of payments and other collections with respect to the related Mortgage Loan or the Mortgage Pool. This paragraph is in no way intended to limit the rights of the Special Servicer under the related Co-Lender Agreement to seek payment of unpaid Special Servicing Compensation with respect to any Companion Loan from the related Companion Loan Holder.
(d) The Master Servicer, Special Servicer, the Certificate Administrator and Trustee shall be entitled to reimbursement from the Trust Fund for the costs and expenses incurred by them in the performance of their duties under this Agreement which are “unanticipated expenses incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and not by way of limitation, environmental assessments, Appraisals in connection with foreclosure, the fees and expenses of any administrative or judicial proceeding and expenses expressly identified as reimbursable in Section 3.06(a)(vi) of this Agreement.
(e) No provision of this Agreement or of the Certificates shall require the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder or thereunder, or in the exercise of any of their rights or powers, if, in the good faith business judgment of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, repayment of such funds would not be ultimately recoverable from late payments, Net Insurance Proceeds, Net Condemnation Proceeds, Net Liquidation Proceeds and other collections on or in respect of the Mortgage Loans or Serviced Whole Loan, (to the extent recovery is permitted from a Serviced Whole Loan hereunder) or from adequate indemnity from other assets comprising the Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee receives a request or inquiry from a Mortgagor, any Certificateholder or any other Person the response to which would, as determined by the Master Servicer or the Special Servicer in accordance with the Servicing Standard or by the Operating Advisor in its commercially reasonable judgment or the Certificate Administrator’s or the Trustee’s in its good faith business judgment require the assistance of Independent legal counsel or other consultant to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee the cost of which would not be an expense of the Trust Fund hereunder, then the Master Servicer, the Special Servicer, the Operating Advisor, the
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Certificate Administrator or the Trustee, as the case may be, shall not be required to take any action in response to such request or inquiry unless the Mortgagor or such Certificateholder or such other Person, as applicable, makes arrangements for the payment of the Master Servicer’s, the Special Servicer’s, the Operating Advisor’s, the Certificate Administrator’s or the Trustee’s expenses associated with such counsel (including, without limitation, posting an advance payment for such expenses) satisfactory to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee as the case may be, in its sole discretion. Unless such arrangements have been made, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee as the case may be, shall have no liability to any Person for the failure to respond to such request or inquiry.
(f) With respect to each Collection Period, the Special Servicer shall deliver or cause to be delivered to the Master Servicer, without charge, and within 2 Business Days following the related Determination Date, and the Master Servicer shall deliver to the Certificate Administrator, if and to the extent received thereby, without charge on the same day as the Master Servicer is required to deliver the CREFC® Investor Reporting Package for such Collection Period, an electronic report that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period; provided that no such report shall be due in any month during which no Disclosable Special Servicer Fees were received.
(g) The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees or rebates) from any Person (including, without limitation, the Trust, any Mortgagor, any Manager, any guarantor or indemnitor in respect of a Mortgage Loan or Companion Loan and any purchaser of any Mortgage Loan, Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan or Serviced Whole Loan, the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.12; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees. For the avoidance of doubt, the Special Servicer is entitled to receive any Permitted Special Servicer/Affiliated Fees under this Agreement.
(h) If the WPC Department Store Portfolio Mortgage Loan becomes a Specially Serviced Loan prior to the WPC Department Store Portfolio Securitization Date, the Special Servicer shall service and administer the related Whole Loan and any related REO Property in the same manner as any other Specially Serviced Loan or REO Property and shall be entitled to all rights and compensation earned with respect to such Serviced Whole Loan during the period for which it acts as Special Servicer of such Serviced Whole Loan. With respect to the WPC Department Store Portfolio Mortgage Loan, prior to the WPC Department Store Portfolio Securitization Date, no other special servicer will be entitled to any such compensation or have such rights and obligations. If the WPC Department Store Portfolio Mortgage Loan is still a Specially Serviced Loan on the WPC Department Store Portfolio Securitization Date, the related Other Special Servicer and the Special Servicer shall be entitled to compensation with respect to the related Whole Loan as if the Special Servicer were being terminated as Special Servicer and the related Other Special Servicer were replacing it as the successor special servicer. Upon receipt of notice of its termination as Special Servicer with respect to the WPC Department Store
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Portfolio Mortgage Loan, as applicable, the Special Servicer shall reasonably cooperate with the related Other Special Servicer in connection with the servicing transition of the WPC Department Store Portfolio Mortgage Loan on and after the WPC Department Store Portfolio Securitization Date.
Section 3.13 Compensating Interest Payments. The Master Servicer shall deliver to the Certificate Administrator for deposit in the Lower-Tier Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of all Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received in respect of the Mortgage Loans or Serviced Companion Loans (other than the Specially Serviced Loans, the Non-Serviced Mortgage Loans, and Defaulted Mortgage Loans), other than Principal Prepayments received in connection with the receipt of Insurance Proceeds or Condemnation Proceeds or otherwise incurred with the consent of the Special Servicer or the Controlling Class Representative, during the most recently ended Prepayment Period, and (ii) the sum of (A) the aggregate Servicing Fees with respect to each Mortgage Loan, Serviced Companion Loan, REO Mortgage Loan and REO Serviced Companion Loan for which Servicing Fees are being paid in such Prepayment Period, up to a maximum rate of 0.0025% per annum for the related Distribution Date and (B) all Prepayment Interest Excesses received during the related Prepayment Period (and net investment earnings thereon); provided that the Master Servicer shall pay (without regard to clause (ii) above) the aggregate of all Prepayment Interest Shortfalls otherwise described in clause (i) above incurred in connection with Principal Prepayments received in respect of the Mortgage Loans during the most recently ended Prepayment Period to the extent such Prepayment Interest Shortfalls were the result of the Master Servicer’s failure to enforce the related Mortgage Loan Documents. No Compensating Interest Payments shall be made by the Master Servicer for the Non-Serviced Mortgage Loans. Any Compensating Interest Payments made with respect to a Serviced Companion Loan shall be paid to the related Serviced Companion Loan Holder.
Section 3.14 Application of Penalty Charges and Modification Fees.
(a) On or prior to the second Business Day before each Master Servicer Remittance Date, the Master Servicer shall apply all Penalty Charges and Modification Fees (to the extent permitted under the related Co-Lender Agreement and not applied pursuant to Section 3.06(a)(ii) of this Agreement) received with respect to a Mortgage Loan, Serviced Whole Loan or a Non-Serviced Mortgage Loan (to the extent remitted to the Master Servicer by the related Other Master Servicer and, in any event, subject to the related Co-Lender Agreement) during the related Prepayment Period as follows:
(i) first, to the extent of all Penalty Charges and Modification Fees (in such order), to pay or reimburse the Master Servicer, the Special Servicer and/or the Trustee, as applicable, for all outstanding Advances (including unreimbursed Advances that have been determined to be Nonrecoverable Advances), the related Advance Interest Amounts and other outstanding Additional Trust Fund Expenses (exclusive of Special Servicing Fees, Workout Fees and Liquidation Fees) other than Borrower Delayed Reimbursements, in each case, with respect to such Mortgage Loan or Serviced Whole Loan;
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(ii) second; to the extent of all remaining Penalty Charges and Modification Fees (in such order), as a reimbursement to the Trust of all Advances (and related Advance Interest Amounts) with respect to such Mortgage Loan or Serviced Whole Loan previously determined to be Nonrecoverable Advances and previously reimbursed to the Master Servicer, the Special Servicer and/or Trustee, as applicable, from amounts on deposit in the Collection Account (and such amounts will be retained or deposited in the Collection Account as recoveries of such Nonrecoverable Advances and related Advance Interest Amounts) other than Borrower Delayed Reimbursements;
(iii) third, to the extent of all remaining Penalty Charges and Modification Fees (in such order), as a reimbursement to the Trust of all other Additional Trust Fund Expenses (exclusive of Special Servicing Fees, Workout Fees and Liquidation Fees) with respect to such Mortgage Loan or Serviced Whole Loan previously paid from the Collection Account or Serviced Whole Loan Custodial Account (and such amounts will be retained or deposited in the Collection Account or Serviced Whole Loan Custodial Account, as applicable, as recoveries of such Additional Trust Fund Expenses) other than Borrower Delayed Reimbursements; and
(iv) fourth, to the extent of any remaining Penalty Charges and any remaining Modification Fees, to the Master Servicer or the Special Servicer, as applicable, as servicing compensation, pro rata, based on their entitlement set forth in Section 3.12 of this Agreement prior to the applications set forth in clauses (i) through (iii) above;
provided that, notwithstanding the foregoing, in the case of a Serviced Whole Loan, Penalty Charges shall be allocated for the purposes and in the order set forth in the related Co-Lender Agreement.
The Special Servicer is not required to remit Penalty Charges and Modification Fees received by it from the Mortgagor to the extent such Penalty Charges and Modification Fees would be allocated to the Special Servicer pursuant to this Section 3.14.
(b) In connection with the operation of the provisions of this Section 3.14, not later than the 25th day of the month in which each Distribution Date occurs (beginning with the 25th day of the month following the first Collection Period in which an Additional Trust Fund Expense, Advance or Advance Interest Amount is incurred), the Master Servicer shall deliver to the Special Servicer a report in the form reasonably agreed to by both the Master Servicer and the Special Servicer setting forth information regarding (1) the amount of Penalty Charges and Modification Fees collected by the Master Servicer and the Special Servicer, as applicable, and (2) the related loan expenses and other amounts paid to the Trust from such Penalty Charges and Modification Fees, in each case for the related Collection Period or other reporting period as agreed to by the Master Servicer and the Special Servicer. The Master Servicer shall respond promptly to any inquiries of the Special Servicer with respect to the contents of any such report and shall provide any supporting information with respect thereto that is reasonably requested by the Special Servicer.
Section 3.15 Access to Certain Documentation. The Master Servicer and Special Servicer shall provide to the Trustee, the Certificate Administrator, the Controlling Class
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Representative (but only prior to the occurrence and continuance of any Consultation Termination Event), the Operating Advisor, the Underwriters, the Initial Purchasers, the Depositor and any Certificateholders and Companion Loan Holders that are, in the case of any Certificateholder or Companion Loan Holder, federally insured financial institutions, the Federal Reserve Board, the FDIC and the OCC and the supervisory agents and examiners of such boards and such corporations, and any other governmental or regulatory body to the jurisdiction of which any Certificateholder or Companion Loan Holder is subject, access to the documentation regarding the Mortgage Loans required by applicable regulations of the Federal Reserve Board, FDIC, OCC or any such governmental or regulatory body, such access being afforded without charge but only upon reasonable request and during normal business hours at the offices of the Master Servicer or Special Servicer (which access shall be limited, in the case of the Companion Loan Holders or any regulatory authority seeking such access in respect of the Companion Loan Holders, to records relating to the Companion Loans). Nothing in this Section 3.15 shall detract from the obligation of the Master Servicer and Special Servicer to observe any applicable law prohibiting disclosure of information with respect to the Mortgagors, and the failure of the Master Servicer and Special Servicer to provide access as provided in this Section 3.15 as a result of such obligation shall not constitute a breach of this Section 3.15.
In connection with providing or granting any information or access pursuant to the prior paragraph to a Certificateholder, a Companion Loan Holder or any regulatory authority that may exercise authority over a Certificateholder or Companion Loan Holder, the Master Servicer and the Special Servicer may each require payment from such Certificateholder or Companion Loan Holder of a sum sufficient to cover the reasonable costs and expenses of providing such information or access, including copy charges and reasonable fees for employee time and for space; provided that no charge may be made if such information or access was required to be given or made available without charge under applicable law. In connection with providing Certificateholders or beneficial owners of Certificates access to the information described in the preceding paragraph, the Master Servicer and the Special Servicer shall require (prior to affording such access) a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to the Master Servicer or the Special Servicer, as the case may be, generally to the effect that such Person is a Holder of Certificates or a beneficial holder of book entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certifying Certificateholder or Companion Loan Holder, the Master Servicer may provide (or forward electronically) (at the expense of such Certificateholder or Companion Loan Holder) copies of any operating statements, rent rolls and financial statements obtained by the Master Servicer or the Special Servicer.
In addition, in connection with providing access to information pursuant to this Section 3.15, each of the Master Servicer and the Special Servicer may (i) affix a reasonable disclaimer to any information provided by it for which it is not the original source (without suggesting liability on the part of any other party hereto); (ii) affix to any information provided by it a reasonable statement regarding securities law restrictions on such information and/or condition access to information on the execution of a reasonable confidentiality agreement; (iii) withhold access to confidential information or any intellectual property; and (iv) withhold access to items of information contained in the Servicing File for any Mortgage Loan or
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Companion Loan if the disclosure of such items would constitute a waiver of the attorney-client privilege.
Each of the Master Servicer and Special Servicer, as appropriate, shall, without charge, make a knowledgeable Servicing Officer available via telephone to verbally answer questions from the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event) and the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), on a monthly basis, during regular business hours at such time and for such duration as the Master Servicer, the Special Servicer, the Operating Advisor and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall reasonably agree, regarding the performance and servicing of the Mortgage Loans and Serviced Whole Loans and/or related REO Properties for which the Master Servicer or the Special Servicer, as applicable, is responsible. With respect to each AB Whole Loan where the Subordinate Companion Loan Holder or its designee is the related Whole Loan Directing Holder, upon request of such Whole Loan Directing Holder, the Special Servicer shall make a knowledgeable Servicing Officer available via telephone conference during regular business hours to verbally answer questions from such Whole Loan Directing Holder on a Business Day that is reasonably convenient to the Special Servicer and such Whole Loan Directing Holder. In the event the Master Servicer or the Special Servicer receives a request from the Controlling Class Representative to have a telephone conversation with respect to the AB Whole Loan at a time when the Trust is not the related Whole Loan Directing Holder, then the Master Servicer or the Special Servicer, as applicable, shall refer the Controlling Class Representative to the related Whole Loan Directing Holder. In connection with clause (ii) above, the related Whole Loan Directing Holder shall be entitled but not obligated to be present and otherwise participate in such telephone conference, and shall not have any obligation to answer questions. In connection with clause (ii) above, the Special Servicer shall have no duty to the Trust Fund, the holders of the Controlling Class, the Controlling Class Representative or any other Person to receive, consider or accept any advice from the Controlling Class Representative. The Special Servicer shall not take any action, or alter any proposed action, in response to a communication from the Controlling Class Representative with respect to the Charles River Plaza North Whole Loan or related Mortgage Loan (prior to a Whole Loan Control Appraisal Event) unless the related Whole Loan Directing Holder has approved the same pursuant to the related Co-Lender Agreement or the Special Servicer determines that the proposed action by the related Whole Loan Directing Holder does not comply with the Servicing Standard. In any event, the Operating Advisor and the Controlling Class Representative agree to identify for the Master Servicer and the Special Servicer in advance (but at least two (2) Business Days prior to the related monthly conference) the applicable Mortgage Loans (or Serviced Whole Loans) and/or REO Properties it intends to discuss. As a condition to such disclosure, the Controlling Class Representative shall execute a confidentiality agreement substantially in the form of Exhibit M-4 to this Agreement and an Investor Certification.
The Master Servicer may (but shall not be required to), in accordance with such rules and procedures as it may adopt in its sole discretion, make available through the Master Servicer’s website or otherwise, any additional information relating to the Mortgage Loans, the Serviced Companion Loans, the related Mortgaged Properties and/or the related Mortgagor that
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is not Privileged Information, for review by the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor.
After the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall deliver to the Operating Advisor such reports and other information produced or otherwise available to the Controlling Class Representative or Certificateholders generally, as requested by the Operating Advisor in support of the performance of the Operating Advisor’s obligations under this Agreement in electronic format.
The Operating Advisor hereby agrees that it shall use the information provided to it by the Special Servicer solely for purposes of performing its duties as Operating Advisor under this Agreement and shall not disclose such information to any other Person or entity unless (i) with respect to Privileged Information, pursuant to a Privileged Information Exception, or (ii) to the extent necessary to support its conclusions in its Operating Advisor Annual Report required under Section 3.28 of this Agreement or to discharge its other duties under this Agreement.
If any of the parties to this Agreement receives a Form ABS Due Diligence-15E from any party in connection with any third-party due diligence services such party may have provided with respect to the Trust Loan (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or from another party to this Agreement, promptly upon receipt thereof.
Section 3.16 Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property (other than a Mortgaged Property with respect to a Non-Serviced Mortgage Loan) is acquired for the benefit of Certificateholders (or, with respect to a Serviced Whole Loan, for the benefit of the Certificateholders and the related Serviced Companion Loan Holder(s)) (as a collective whole as if such Certificateholders and Serviced Companion Loan Holder(s) constituted a single lender) (either by the Trust Fund or by a single member limited liability company established for that purpose) in foreclosure, by deed in lieu of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or certificate of sale shall be taken in the name of a nominee of the Trustee (which shall not include the Master Servicer), or a separate trustee or co-trustee, on behalf of the Trust Fund and the related Companion Loan Holders. The Special Servicer, on behalf of the Trust Fund, shall sell any REO Property prior to the close of the third calendar year following the year in which the Lower-Tier REMIC acquires ownership of such REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of Code Section 860G(a)(8), unless (i) the IRS grants (or does not deny) an extension of time (an “REO Extension”) to sell such REO Property or (ii) the Special Servicer obtains an Opinion of Counsel for the Special Servicer, the Certificate Administrator and the Trustee, addressed to the Special Servicer, the Certificate Administrator and the Trustee, to the effect that the holding by the Lower-Tier REMIC of such REO Property subsequent to the close of the third calendar year following the year in which such acquisition occurred will not result in the imposition of taxes on “prohibited transactions” (as defined in Code Section 860F) of either Trust REMIC, or cause
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either Trust REMIC to fail to qualify as a REMIC under the Code for federal income tax purposes at any time that any Certificate is outstanding. If the Special Servicer is granted (or is not denied) the REO Extension contemplated by clause (i) of the immediately preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the immediately preceding sentence, the Special Servicer shall sell such REO Property within such longer period as is permitted by such REO Extension or such Opinion of Counsel, as the case may be. Any expense incurred by the Special Servicer in connection with its receiving the REO Extension contemplated by clause (i) of the second preceding sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of the second preceding sentence shall be an expense of the Trust Fund payable out of the Collection Account pursuant to Section 3.06(a) of this Agreement. The Special Servicer, on behalf of the Trust Fund and any related Companion Loan Holder, in accordance with the Servicing Standard, shall dispose of any REO Property held by the Trust Fund (i) prior to the last day of such period (taking into account extensions) by which such REO Property is required to be disposed of pursuant to the provisions of the immediately preceding sentence in a manner provided under Section 3.17 of this Agreement and (ii) on the same terms and conditions as if it were the owner of such REO Property. The Special Servicer shall manage, conserve, protect and operate each REO Property for the Certificateholders and, if applicable, the related Companion Loan Holder, solely for the purpose of its prompt disposition and sale in a manner which does not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Code Section 860G(a)(8) or result in the receipt by the Trust Fund of any “income from non-permitted assets” within the meaning of Code Section 860F(a)(2)(B) or (i) endanger the status of either Trust REMIC as a REMIC or (ii) result in the imposition of a tax upon either Trust REMIC or the Trust Fund. The Special Servicer shall have full power and authority, subject only to the specific requirements and prohibitions of this Agreement, to do any and all things in connection with any REO Property (other than with respect to the Non-Serviced Mortgage Loans) as are consistent with the Servicing Standard and the terms of this Agreement, all on such terms and for such period as the Special Servicer deems to be in the best interests of Certificateholders and, if applicable, the related Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Companion Loan Holder constituted a single lender), and, in connection therewith, the Special Servicer shall only agree to the payment of management fees that it determines in its reasonable business judgment to be substantially consistent with general market standards or to terms that are more favorable. Consistent with the foregoing, the Special Servicer shall cause or permit to be earned with respect to such REO Property any “net income from foreclosure property,” within the meaning of Code Section 860G(c), which is subject to tax under the REMIC Provisions only if it has determined, and has so advised the Certificate Administrator in writing, that the earning of such income on a net after-tax basis could reasonably be expected to result in a greater recovery on behalf of Certificateholders and, if applicable, the related Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Companion Loan Holder(s) constituted a single lender) than an alternative method of operation or rental of such REO Property that would not be subject to such a tax. The Special Servicer shall segregate and hold all revenues received by it with respect to any REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to any REO Property a segregated custodial account (each, an “REO Account”), each of which shall be an Eligible Account and (subject to any changes in the identities of the Special Servicer or the Trustee) shall be entitled “Rialto Capital Advisors, LLC, as Special Servicer, on behalf of Wells Fargo Bank,
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National Association, as Trustee, for the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 [in the case of an REO Property related to a Whole Loan: and the related Companion Loan Holder, as their interests may appear], REO Account.” The Special Servicer shall be entitled to withdraw for its account any interest or investment income earned on funds deposited in an REO Account to the extent provided in Section 3.07(b) of this Agreement. The Special Servicer shall deposit or cause to be deposited in the REO Account within one Business Day after receipt all revenues received by it with respect to any REO Property (other than Liquidation Proceeds, which shall be remitted to the Collection Account), and shall withdraw therefrom funds necessary for the proper operation, management and maintenance of such REO Property and for other Property Protection Expenses with respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO Property;
(ii) all real estate taxes and assessments in respect of any REO Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect, maintain, manage, operate, repair and restore any REO Property including, if applicable, the payments of any ground rents in respect of such REO Property; and
(iv) any taxes imposed on either Trust REMIC in respect of net income from foreclosure property in accordance with Section 4.05 of this Agreement.
To the extent that such REO Proceeds are insufficient for the purposes set forth in clauses (i) through (iv) above and the Special Servicer has provided written notice of such shortfall to the Master Servicer at least five (5) Business Days (or, in an emergency situation or on an urgent basis, two (2) Business Days, provided that the written notice sets forth the nature of the emergency or the basis of the urgency) prior to the date that such amounts are due, the Master Servicer shall advance the amount of such shortfall unless the Master Servicer determines, in accordance with the Servicing Standard, that such Advance would be a Nonrecoverable Advance (in which case such costs shall be an expense of the Trust Fund and paid by the Master Servicer out of the Collection Account). If the Master Servicer does not make any such Advance in violation of the immediately preceding sentence, the Trustee shall make such Advance unless the Trustee determines that such Advance would be a Nonrecoverable Advance. The Trustee shall be entitled to rely conclusively on any determination by the Master Servicer that an Advance, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a proposed Advance would be a Nonrecoverable Advance, shall use its good faith business judgment. The Master Servicer or the Trustee, as applicable, shall be entitled to reimbursement of such Advances (with interest at the Advance Rate) made pursuant to the preceding sentence, to the extent set forth in Section 3.06 and/or, if applicable, Section 3.06A of this Agreement. The Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, or, for a Serviced Whole Loan, the related Serviced Whole Loan Custodial Account, on a monthly basis prior to the related Master Servicer Remittance Date the Net REO Proceeds
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received or collected from each REO Property during the related Prepayment Period, except that in determining the amount of such Net REO Proceeds, the Special Servicer may retain in each REO Account reasonable reserves for repairs, replacements and necessary capital improvements and other related expenses. Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease, other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than ten percent of the construction of such building or other improvement was completed before default on the related Mortgage Loan or Serviced Whole Loan became imminent, all within the meaning of Code Section 856(e)(4)(B); or
(iv) Directly Operate or allow any Person to Directly Operate any REO Property on any date more than 90 days after its date of acquisition by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel addressed to the Special Servicer, the related Companion Loan Holder, the Certificate Administrator and the Trustee (which opinion shall be an expense of the Trust Fund and, if the related Companion Loan is part of a REMIC, the related Companion Loan Holder) to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Code Section 860G(a)(8) (determined without regard to the exception applicable for purposes of Code Section 860D(a)) at any time that it is held by the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent Contractor, the fees and expenses of which shall be an expense of the Trust Fund and payable out of REO Proceeds, for the operation and management of any REO Property, within 90 days of the Trust Fund’s acquisition thereof (unless the Special Servicer shall have provided the Trustee and the Certificate Administrator with an Opinion of Counsel that the operation and management of any REO Property other than through an Independent Contractor shall not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Code Section 860G(a)(8)) (which opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be reasonable and customary for the area and type of property and shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be administered to require, that the Independent Contractor pay all costs and expenses incurred in connection
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with the operation and management of such REO Property, including those listed above, and remit all related revenues (net of such costs and expenses) to the Special Servicer as soon as practicable, but in no event later than thirty days following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.16(a) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trust Fund or the Trustee on behalf of the Certificateholders and, if applicable, the related Companion Loan Holder with respect to the operation and management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.
(b) When and as necessary, the Special Servicer shall send to the Trustee and the Certificate Administrator and the related Companion Loan Holder a statement prepared by the Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Section 3.16(a) of this Agreement.
(c) Notwithstanding anything to the contrary, this Section 3.16 shall not apply to any REO Property related to a Non-Serviced Mortgage Loan.
Section 3.17 Sale of Defaulted Mortgage Loans and REO Properties; Sale of Non-Serviced Mortgage Loans.
(a) The parties hereto may sell or purchase, or permit the sale or purchase of, a Mortgage Loan (excluding a Non-Serviced Mortgage Loan) only (i) on the terms and subject to the conditions set forth in this Section 3.17, (ii) as otherwise expressly provided in or contemplated by Section 2.03 and Section 9.01 of this Agreement, or (iii) (A) in the case of a Mortgage Loan related to a Serviced Whole Loan in accordance with and subject to the provisions of the related Co-Lender Agreement and Section 3.27 of this Agreement and (B) in the case of a Mortgage Loan with a related mezzanine loan or subordinate mortgage loan, in accordance with and subject to the provisions of the related intercreditor agreement.
(b) Promptly upon a Mortgage Loan (excluding a Non-Serviced Mortgage Loan) or Serviced Whole Loan becoming a Defaulted Mortgage Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders and, in the case of a Defaulted Serviced Whole Loan, the related Serviced
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Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, in the case of a Defaulted Serviced Whole Loan, the related Serviced Companion Loan Holder(s), constituted a single lender (and with respect to the Charles River Plaza North Whole Loan, taking into account (i) the subordinate nature of the Charles River Plaza North Subordinate Companion Loan and (ii) that the related Mortgage Loan may be sold without the related Subordinate Companion Loan pursuant to the related Co-Lender Agreement)) to attempt to sell such Defaulted Mortgage Loan (which, in the case of the Charles River Plaza North Whole Loan, may exclude the related Subordinate Companion Loan pursuant to the related Co-Lender Agreement), the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Mortgage Loan (which, in the case of the Charles River Plaza North Whole Loan, may exclude the related Subordinate Companion Loan pursuant to the related Co-Lender Agreement) on behalf of the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) in such manner as will be reasonably likely to realize a fair price; provided that, in the case of the Charles River Plaza North Whole Loan, the Special Servicer is permitted (with the consent of the related Subordinate Companion Loan Holder), but not required, to include the Charles River Plaza North Subordinate Companion Loan as part of any such sale of such Whole Loan provided that, for the avoidance of doubt, in the event that the Charles River Plaza North Subordinate Companion Loan is not included in any such sale, the references in this Section 3.17 to “Defaulted Mortgage Loan” shall exclude such Subordinate Companion Loan. Subject to the other subsections of this Section 3.17, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event) and any affected Serviced Companion Loan Holder of any inquiries or offers received regarding the sale of any Defaulted Mortgage Loan. Any Companion Loan that is part of a Defaulted Serviced Whole Loan is to be sold together with the related Mortgage Loan, subject to this Section 3.17 and any additional requirements set forth in the related Co-Lender Agreement.
(c) The Special Servicer shall give the Certificate Administrator, the Trustee, the Master Servicer, the related Companion Loan Holder, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), not less than five (5) Business Days’ (but subject to paragraph (p) below with respect to a Serviced Whole Loan) prior written notice of its intention to sell any Defaulted Mortgage Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Mortgage Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may offer to purchase or purchase any Defaulted Mortgage Loan pursuant hereto.
(d) Whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan for purposes of Section 3.17(b) of this Agreement shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third
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parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for any Defaulted Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is offering with respect to a Defaulted Mortgage Loan and (ii) the Trustee if an Interested Person is so offering. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan or Serviced Whole Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Mortgage Loan (and any equivalent amount for any related Companion Loan) shall in all cases be deemed a fair price and the Trustee will not be required to make a fair price determination if such offeror is an Interested Person; provided, however, that with respect to an Interested Person, the requirements of the first sentence of this Section 3.17(d) must be satisfied. Notwithstanding anything contained in this Section 3.17(d) to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in properties similar to the subject REO Property that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such REO Property. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person and if not paid, shall be reimbursed by the Trust; provided that the Trustee may not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(e) Subject to Section 3.17(a) through Section 3.17(d), Section 3.17(f), Section 3.17(g) and Section 3.17(m), the Special Servicer shall act on behalf of the Trust Fund and any affected Pari Passu Companion Loan Holder in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account or, if
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applicable, the Serviced Whole Loan Custodial Account. Any sale of any Defaulted Mortgage Loan shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust Fund (except such recourse to the Trust Fund imposed by those representations and warranties typically given in such transactions, any appropriations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator, the Operating Advisor or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
(f) Subject to the rights of a holder of a mezzanine or companion loan, under the respective intercreditor or co-lender agreement, respectively, to purchase a Mortgage Loan or Serviced Whole Loan, unless and until a Defaulted Mortgage Loan is sold pursuant to this Section, the Special Servicer shall continue to service and administer the Mortgage Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of a Mortgage Loan, as is consistent with this Agreement and the Servicing Standard.
(g) Any sale of a Mortgage Loan or Serviced Whole Loan pursuant to this Section 3.17 shall be for cash only. The purchase price for any Mortgage Loan or Serviced Whole Loan purchased under this Section 3.17 or any Non-Serviced Mortgage Loan sold in accordance with the related Co-Lender Agreement or Other Pooling and Servicing Agreement shall be deposited into the Collection Account or the related Serviced Whole Loan Custodial Account, as applicable, and the Certificate Administrator, upon receipt of an Officer’s Certificate from the Master Servicer to the effect that such deposit has been made, shall release or cause to be released to the purchaser of the Mortgage Loan or Serviced Whole Loan the related Mortgage File, and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan or Serviced Whole Loan. In connection with any such purchase, the Special Servicer and the Master Servicer shall deliver the related Servicing File (to the extent either has possession of such file) to such purchaser.
(h) The parties hereto may sell or purchase, or permit the sale or purchase of, an REO Property only on the terms and subject to the conditions set forth in this Section 3.17.
(i) The Special Servicer shall use reasonable efforts to solicit offers for each REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan) on behalf of the Certificateholders and the related Serviced Companion Loan Holder (if applicable) in such manner as will be reasonably likely to realize a fair price within the time period specified by Section 3.16 of this Agreement. Subject to Section 3.17(m) of this Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, highest) cash offer received from any Person that constitutes a fair price for such REO Property. If the Special Servicer determines, in its good faith and reasonable judgment, that it will be unable to realize a fair price for any REO Property within the time constraints imposed by Section 3.16 of this Agreement, then the Special Servicer shall dispose of such REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall
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accept the highest outstanding cash offer, regardless from whom received. The Liquidation Proceeds (net of related Liquidation Expenses) for any REO Property purchased hereunder shall be deposited in the Collection Account or, if applicable, the related Serviced Whole Loan Custodial Account. The Special Servicer shall notify the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event) of any inquiries or offers received regarding the sale of any REO Property.
(j) The Special Servicer shall give the Trustee, the Certificate Administrator, the Master Servicer, the related Companion Loan Holder, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), not less than three (3) Business Days’ prior written notice of its intention to sell any REO Property. No Interested Person shall be obligated to submit an offer to purchase any REO Property, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may offer to purchase, or purchase, any REO Property pursuant hereto.
(k) Whether any cash offer constitutes a fair price for any REO Property for purposes of Section 3.17(i) of this Agreement shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror); provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for any such REO Property, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is offering with respect to an REO Property and selected by the Trustee if an Interested Person is so offering. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. For the avoidance of doubt, an offer equivalent to the Repurchase Price shall be deemed a fair price and the Trustee shall not be required to make a fair price determination if such offeror is an Interested Person. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for any such REO Property, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan or Serviced Whole Loan, the occupancy level and physical condition of the REO Property, the state of the local economy and the obligation to dispose of any REO Property within the time period specified in Section 3.16 of this Agreement. The Purchase Price for any REO Property shall in all cases be deemed a fair price; provided, however, that with respect to an Interested Person, the requirements of the first sentence of this Section 3.17(k) must be satisfied. Notwithstanding anything contained in this Section 3.17(k) to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person
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constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in properties similar to the subject REO Property that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such REO Property. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(l) Subject to Section 3.17(a) through Section 3.17(k) and Section 3.17(m) of this Agreement, the Special Servicer shall act on behalf of the Trust Fund and any affected Companion Loan Holder in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO Property, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account or, if applicable, the related Serviced Whole Loan Custodial Account. Any sale of any Defaulted Mortgage Loan or REO Property shall be final and without recourse to the Trustee, the Certificate Administrator or the Trust Fund or any related Companion Loan Holder (except such recourse to the Trust Fund and the related Companion Loan Holder imposed by those representations and warranties typically given in such transactions, any appropriations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator, the Operating Advisor or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
(m) Notwithstanding any of the foregoing paragraphs of this Section 3.17, the Special Servicer shall not be obligated to accept the highest cash offer for a Defaulted Mortgage Loan or REO Property if the Special Servicer determines (in consultation with the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and, in the case of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related affected Serviced Companion Loan Holder(s)), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders and, in the case of a sale of a Serviced Whole Loan or an REO Property that corresponds to a Serviced Whole Loan, the related affected Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related affected Serviced Companion Loan Holder(s) constituted a single lender) and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders and, in the case of a Serviced Whole Loan or an REO Property that corresponds to a Serviced Whole Loan, the related affected Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related affected
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Serviced Companion Loan Holder(s) constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(n) In no event shall the Trust Fund or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any Non-Serviced Mortgage Loan, any Companion Loan or any Mortgage Loan.
(o) Notwithstanding anything to the contrary herein, any purchase or sale of a Specially Serviced Loan pursuant to this Section 3.17 will remain subject to the cure, purchase and other rights of, in each case if applicable, any related Subordinate Companion Loan Holder as set forth in the related Co-Lender Agreement and any holder of a related mezzanine loan as set forth in the related intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the related Co-Lender Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of any related Subordinate Companion Loan Holder or an appropriate mezzanine loan holder and shall provide such notices to a related Subordinate Companion Loan Holder or the holder of a related mezzanine loan as are required by the related Co-Lender Agreement or the related mezzanine loan intercreditor agreement in connection with each such holders’ purchase rights.
(p) With respect to each Serviced Whole Loan, the parties hereto acknowledge that the related Co-Lender Agreement provides that if such Serviced Whole Loan becomes a Defaulted Serviced Whole Loan, and if the Special Servicer determines to sell the related Mortgage Loan in accordance with this Section 3.17, then the Special Servicer will be required to sell the related Serviced Companion Loan(s) together with the related Mortgage Loan as one whole loan in accordance with this Agreement and subject to any rights of the related holder of such Serviced Companion Loan(s) under the related Co-Lender Agreement; provided that, in connection with any such sale involving the Charles River Plaza North Whole Loan, the Special Servicer will have the right (with the consent of the related Subordinate Companion Loan Holder), but not the obligation, to sell the Charles River Plaza North Subordinate Companion Loan. Notwithstanding anything to the contrary herein, the Special Servicer shall not sell the Pari Passu Companion Loans of a Defaulted Serviced Whole Loan without the written consent of the related Serviced Companion Loan Holder (provided that such consent is not required if such Serviced Companion Loan Holder is the related Mortgagor or an Affiliate of the related Mortgagor or (in the case of the Charles River Plaza North Portfolio Whole Loan, in the event the related Mortgage Loan is sold without the related Subordinate Companion Loan) the holder of the Charles River Plaza North Subordinate Companion Loan) unless the Special Servicer has delivered to such Serviced Companion Loan Holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell such Defaulted Serviced Whole Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for such Defaulted Serviced Whole Loan, and any documents in the Servicing File reasonably requested by the related Serviced Companion Loan Holder that are material to the price of such Serviced Whole Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being
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provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Serviced Companion Loan Holder may waive as to itself any of the delivery or timing requirements set forth in this sentence. The related Serviced Companion Loan Holder and its Companion Loan Holder Representative will each be permitted to make offers to purchase, and either such party is permitted to be the purchaser at any sale of, a Defaulted Serviced Whole Loan.
(q) Notwithstanding anything herein to the contrary, any party identified in the related Co-Lender Agreement or Other Pooling and Servicing Agreement (which, if the identified party is the holder of the Non-Serviced Mortgage Loan, shall mean the Controlling Class Certificateholder for so long as no Control Termination Event has occurred and is continuing), in its individual capacity and not on behalf of the Trust, shall be entitled to purchase a Non-Serviced Mortgage Loan in accordance with the terms and conditions set forth in such Co-Lender Agreement and Other Pooling and Servicing Agreement. In no event shall the Trust Fund or the Trustee, the Master Servicer or the Special Servicer on its behalf purchase, or pay or advance costs to purchase, the Non-Serviced Mortgage Loan or the related Companion Loan or any Mortgage Loan.
(r) With respect to any Non-Serviced Mortgage Loan that becomes a “Defaulted Mortgage Loan” (as such term is defined pursuant to the terms of the applicable Other Pooling and Servicing Agreement), and with respect to any REO Property related to a Non-Serviced Mortgage Loan, the liquidation of such Non-Serviced Mortgage Loan or such REO Property shall be administered by the applicable Other Special Servicer in accordance with the applicable Other Pooling and Servicing Agreement and the related Co-Lender Agreement. Any such sale of a Non-Serviced Mortgage Loan or any related REO Property pursuant to the applicable Other Pooling and Servicing Agreement and/or the related Co-Lender Agreement shall be final and without recourse to the Trustee or the Trust, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price for such Non-Serviced Mortgage Loan or such REO Property accepted on behalf of the Trust.
Section 3.18 Additional Obligations of the Master Servicer; Inspections Obligation to Notify Ground Lessors; Delivery of Certain Reports to the Companion Loan Holder.
(a) The Master Servicer (or, with respect to Specially Serviced Loans and REO Properties, the Special Servicer) shall inspect or cause to be inspected each Mortgaged Property that secures a Mortgage Loan (but not a Non-Serviced Mortgage Loan) or Serviced Whole Loan at such times and in such manner as are consistent with the Servicing Standard, but in any event at least once every calendar year with respect to such Mortgaged Property relating to Mortgage Loans with an outstanding principal balance of $2,000,000 (commencing in 2016) or more and at least once every other calendar year with respect to such Mortgaged Property relating to Mortgage Loans with an outstanding principal balance of less than $2,000,000 (commencing in 2017); provided that the Master Servicer is not required to inspect any Mortgaged Property that has been inspected by the Special Servicer during the preceding 12 months. If any Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan, the
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related Mortgaged Property shall be inspected by the Special Servicer as soon as practicable and thereafter at least every calendar year for so long as such condition exists. The cost of any annual inspection, or bi-annual inspection, as the case may be, shall be borne by the Master Servicer unless the related Mortgage Loan or Serviced Whole Loan is a Specially Serviced Loan. The Master Servicer shall reimburse the Special Servicer for the cost of any inspection of a Specially Serviced Loan as a Property Advance (or as an expense of the Trust Fund and paid by the Master Servicer from amounts in the Collection Account if such Property Advance would be a Nonrecoverable Advance) and any out-of-pocket costs incurred with respect to such inspection shall be borne by the Trust Fund.
(b) The Master Servicer shall, as to each Mortgage Loan (excluding the Non-Serviced Mortgage Loans) which is secured by the interest of the related Mortgagor under a Ground Lease, even if the corresponding fee interest is encumbered, promptly (and in any event within 60 days following the later of the Closing Date or its receipt of a copy of the Ground Lease) notify the related ground lessor of the transfer of such Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such ground lessor that any notices of default under the related Ground Lease should thereafter be forwarded to the Master Servicer. The Master Servicer shall forward to the Special Servicer any written notice of default under a ground lease, and the Special Servicer shall determine in accordance with the servicing standard whether to cure any borrower defaults relating to such Ground Lease.
(c) The Master Servicer and the Special Servicer shall each promptly prepare or cause to be prepared and deliver to each Companion Loan Holder a written report, prepared in the manner set forth in Section 4.02, of each inspection performed by it with respect to the related Mortgaged Property and Companion Loan related thereto.
(d) If required under the Co-Lender Agreement, the Master Servicer shall promptly deliver to each Companion Loan Holder or provide electronically: (i) copies of operating statements and rent rolls; (ii) annual CREFC® NOI Adjustment Worksheets (with annual operating statements as exhibits); and (iii) annual CREFC® Operating Statement Analysis Reports, in each case prepared, received or obtained by it pursuant to this Agreement with respect to the Mortgaged Properties securing the related Companion Loan.
(e) The Master Servicer is hereby authorized to exercise any rights granted under an Other Pooling and Servicing Agreement in favor of the Trust (or a party on its behalf) as the holder of each Non-Serviced Mortgage Loan to obtain information from the related Other Master Servicer (or other similar parties with an obligation to make advances) in connection with making nonrecoverability determinations. The Master Servicer shall promptly deliver to any Other Master Servicer, upon request, such information in the Master Servicer’s possession as the Other Master Servicer reasonably requests in order to determine whether an advance similar to a P&I Advance would be “nonrecoverable.”
Section 3.19 Lockbox Accounts, Escrow Accounts. The Master Servicer shall administer each Lockbox Account and Escrow Account in accordance with the related Mortgage or Loan Agreement or Lockbox Agreement, if any, and administer any letters of credit pursuant to the related letter of credit agreement and the Mortgage Loan Documents.
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Notwithstanding the foregoing, to the extent that any cash amounts are held in an Escrow Account or other cash collateral account and the mortgagee under the related Mortgage Loan Documents is permitted, but not required, to apply such amounts to prepay the related Mortgage Loan (or Serviced Whole Loan), neither the Master Servicer nor the Special Servicer shall apply such amounts to prepay the Mortgage Loan (or Serviced Whole Loan) until after the occurrence of an event of default under the Mortgage Loan that may result in the Mortgage Loan (or Whole Loan) being accelerated or becoming a Specially Serviced Loan.
Section 3.20 Property Advances.
(a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property
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Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances.
For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide.
(b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement.
(c) None of the Master Servicer, the Special Servicer or the Trustee shall be permitted to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s
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determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes.
The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance.
The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment.
(d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to
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the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents.
(e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer.
(f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be
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reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.
Section 3.21 Appointment of Special Servicer; Asset Status Reports.
(a) Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and the Serviced Whole Loans.
(b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision or, if applicable, AB Whole Loan Major Decision (or making a determination not to take action with respect to a Major Decision or, if applicable, AB Whole Loan Major Decision with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Whole Loan. Each Asset Status Report will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), with respect to the Charles River Plaza North Whole Loan, the Charles River Plaza North Directing Holder and the holder of the Charles River Plaza North Companion Loan designated as note A-1, with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Serviced Companion Loan Holder and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, that the Special Servicer shall not be required to deliver an Asset Status Report to the Controlling Class Representative if they are the same entity or affiliates of each other. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable or applicable:
(i) summary of the status of the related Mortgage Loan or Serviced Whole Loan and any negotiations with the Mortgagors;
(ii) if a Servicing Transfer Event has occurred and is continuing:
(A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the
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Mortgage Loan or Whole Loan and whether outside legal counsel has been retained;
(B) the most current rent roll and income or operating statement available for the related Mortgaged Properties;
(C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon;
(D) a copy of the last obtained Appraisal of the Mortgaged Property;
(E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Whole Loan;
(F) a description of any amendment, modification or waiver of a material term of any ground lease; and
(G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor;
(iii) a description of any such proposed or taken actions;
(iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions;
(v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives;
(vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and
(vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard.
For so long as there is no continuing Control Termination Event, if within 10 Business Days (or, in the case of an Asset Status Report prepared prior to making a determination of an Acceptable Insurance Default, 20 Business Days) of receiving an Asset
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Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan Documents. If, prior to the occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days (or, in the case of an Asset Status Report prepared prior to making a determination of an Acceptable Insurance Default, 20 Business Days) of receipt, the Special Servicer will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders (other than the Charles River Plaza North Whole Loan, if applicable, prior to any Whole Loan Control Appraisal Event or the WPC Department Store Portfolio Whole Loan, if applicable, prior to the WPC Department Store Portfolio Securitization Date) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant Section 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the Controlling Class Representative shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days (or, in the case of an Asset Status Report prepared prior to making a determination of an Acceptable Insurance Default, 20 Business Days) of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and approved or deemed approved pursuant to the terms of this Section. In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as set forth in the most recently submitted Asset Status Report; provided such action does not violate the Servicing Standard. Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) would materially and adversely affect the interest of the Certificateholders and the related Serviced Companion Loan Holder (if applicable) and the Special Servicer has made a reasonable effort, prior to the occurrence and continuance of any Control Termination Event, to
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contact the Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard.
After the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, the Special Servicer shall also consult on a non-binding basis with the Controlling Class Representative in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 days of receipt of each Asset Status Report. The Special Servicer shall consider any such proposals from the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer.
Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b).
Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Serviced Whole Loan, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times contemplated by the related Co-Lender Agreement, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.27(d) of this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as the related Subordinate Companion Loan Holder is the Whole Loan Directing Holder for the Charles River Plaza North Whole Loan, no request for approval of the Controlling Class Representative shall be made on any matter related to such AB Whole Loan, nor shall the Operating Advisor have the right to consult on any matter related to such AB Whole Loan, nor shall the Controlling Class Representative have the right to consent on any matter related to such AB Whole Loan, except that the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) shall have the rights set forth
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in the applicable Co-Lender Agreement. With respect to the Charles River Plaza North Whole Loan and any related REO Property, for so long as the related Subordinate Companion Loan Holder is the applicable Whole Loan Directing Holder, the related Subordinate Companion Loan Holder or its designee shall exercise all approval rights regarding any Asset Status Report in respect of such AB Whole Loan or REO Property set forth in the first and second paragraphs of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or Consultation Termination Event. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the WPC Department Store Portfolio Securitization Date, no request for approval of the Controlling Class Representative shall be made on any matter related to the WPC Department Store Portfolio Whole Loan, nor shall the Operating Advisor have the right to consult on any matter related to the WPC Department Store Portfolio Whole Loan, nor shall the Controlling Class Representative have the right to consent on any matter related to the WPC Department Store Portfolio Whole Loan, except that the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) shall have the rights set forth in the applicable Co-Lender Agreement. With respect to the WPC Department Store Portfolio Whole Loan and any related REO Property, prior to the WPC Department Store Portfolio Securitization Date, the WPC Department Store Portfolio Directing Holder shall exercise all approval rights regarding any Asset Status Report in respect of WPC Department Store Portfolio Whole Loan or REO Property set forth in the second paragraph of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or Consultation Termination Event.
The Special Servicer shall deliver (i) any Final Asset Status report to the 17g-5 Information Provider for posting on its Website, and (ii) a summary of the Final Asset Status Report (which such summary shall be prepared on a loan-by-loan basis) to the Certificate Administrator for posting on its website.
(c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan.
(d) Upon request of any Certificateholder (or any Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the Final Asset Status Report for each Specially Serviced Loan.
(e) Prior to the occurrence and continuance of a Control Termination Event, the Special Servicer shall deliver to the Operating Advisor only each Final Asset Status Report.
(f) Notwithstanding the foregoing, neither the Master Servicer nor the Special Servicer shall follow any advice, direction or consultation provided by the Operating Advisor, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the Controlling Class Representative that would require or cause the Master Servicer or the Special Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing Standard or any Co-Lender Agreement, require or cause the Master Servicer or the Special
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Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer or Master Servicer to violate the terms of any Co-Lender Agreement, any Mortgage Loan or Serviced Whole Loan, or expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or the imposition of a tax upon either Trust REMIC, or materially expand the scope of the Master Servicer’s or the Special Servicer’s, as applicable, responsibilities under this Agreement or any Co-Lender Agreement. In addition, neither the Master Servicer nor the Special Servicer is under any obligation to act upon any recommendation of the Operating Advisor.
Section 3.22 Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan or Serviced Whole Loan has become a Specially Serviced Loan, the Master Servicer shall promptly give written notice thereof to the Special Servicer, any related Companion Loan Holder (in the case of a Serviced Whole Loan), the Operating Advisor, the Certificate Administrator, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative, and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider and shall deliver a copy of the Servicing File to the Special Servicer and concurrently provide a copy of such Servicing File to the Operating Advisor and shall use its reasonable efforts to provide the Special Servicer with all information, documents (but excluding the original documents constituting the Mortgage File, but including copies thereof) and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to the Mortgage Loan or Serviced Whole Loan and reasonably requested by the Special Servicer to enable it to assume its duties hereunder with respect thereto without acting through a Sub-Servicer. The Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the date such Mortgage Loan and/or Serviced Companion Loan became a Specially Serviced Loan and in any event shall continue to act as Master Servicer and administrator of such Mortgage Loan and/or Serviced Companion Loan until the Special Servicer has commenced the servicing of such Mortgage Loan and/or Serviced Companion Loan, which shall occur upon the receipt by the Special Servicer of the Servicing File. With respect to each such Mortgage Loan and/or Serviced Companion Loan that becomes a Specially Serviced Loan, the Master Servicer shall instruct the related Mortgagor to continue to remit all payments in respect of such Mortgage Loan and/or Serviced Companion Loan to the Master Servicer. The Master Servicer shall forward any notices it would otherwise send to the Mortgagor of such a Specially Serviced Loan to the Special Servicer who shall send such notice to the related Mortgagor.
Upon determining that a Specially Serviced Loan has become a Corrected Mortgage Loan, the Special Servicer shall immediately give written notice thereof to the Master Servicer, the Trustee, the Operating Advisor, the Certificate Administrator, any related Companion Loan Holder and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative, and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5
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Information Provider and, upon giving such notice and the return of the Servicing File to the Master Servicer, such Mortgage Loan and/or Serviced Companion Loan shall cease to be a Specially Serviced Loan in accordance with the first proviso of the definition of Specially Serviced Loans, the Special Servicer’s obligation to service such Mortgage Loan and/or Serviced Companion Loan shall terminate and the obligations of the Master Servicer to service and administer such Mortgage Loan and/or Serviced Companion Loan as a Mortgage Loan and/or Serviced Companion Loan that is not a Specially Serviced Loan shall resume. In addition, if the related Mortgagor has been instructed, pursuant to the preceding paragraph, to make payments to the Special Servicer, upon such determination, the Special Servicer shall instruct the related Mortgagor to remit all payments in respect of such Specially Serviced Loan directly to the Master Servicer.
(b) In servicing any Specially Serviced Loan, the Special Servicer shall provide to the Custodian originals of documents included within the definition of “Mortgage File” for inclusion in the related Mortgage File (to the extent such documents are in the possession of the Special Servicer) and copies of any additional related Mortgage Loan or Serviced Whole Loan information, including correspondence with the related Mortgagor, and the Special Servicer shall promptly provide copies of all of the foregoing to the Master Servicer as well as copies of any analysis or internal review prepared by or for the benefit of the Special Servicer.
(c) Notwithstanding the provisions of subsections (a) and (b) of this Section 3.22, the Master Servicer shall maintain ongoing payment records with respect to each of the Specially Serviced Loans and, upon request, shall provide the Special Servicer and the Operating Advisor with any information reasonably required by the Special Servicer or the Operating Advisor to perform its duties under this Agreement to the extent such information is within its possession. Upon request, the Special Servicer shall provide the Master Servicer and the Operating Advisor with any information reasonably required by the Master Servicer or the Operating Advisor to perform its duties under this Agreement to the extent such information is within its possession.
Section 3.23 Interest Reserve Account. The Certificate Administrator shall establish and maintain the Interest Reserve Account. The Interest Reserve Account shall be established and maintained as an Eligible Account. On each Master Servicer Remittance Date occurring in February and on any Master Servicer Remittance Date occurring in January which occurs in a year that is not a leap year (commencing in 2016) (unless, in either such case, the related Distribution Date is the final Distribution Date), the Master Servicer shall remit to the Certificate Administrator for deposit into the Interest Reserve Account, in respect of each Mortgage Loan that accrues interest on the basis of a 360-day year and the actual number of days in the related month, an amount equal to one day’s interest at the related Net Mortgage Loan Rate, on the respective Stated Principal Balance, as of the close of business on the Distribution Date in the month preceding the month in which such Master Servicer Remittance Date occurs, to the extent the applicable Monthly Payment or P&I Advance is made in respect thereof (all amounts so deposited in any consecutive January (if applicable) and February, “Withheld Amounts”). On or prior to the Master Servicer Remittance Date occurring in March (or February, if such Distribution Date is the final Distribution Date) of each calendar year, the
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Certificate Administrator shall transfer to the Lower-Tier Distribution Account the aggregate of all Withheld Amounts on deposit in the Interest Reserve Account.
Section 3.24 Modifications, Waivers and Amendments.
(a) (i) With respect to non Specially Serviced Loans, the Special Servicer (with respect to any Major Decision or Special Servicer Decision, unless the Master Servicer and the Special Servicer mutually agree that, in connection with any modification, waiver or amendment that constitutes a Major Decision or a Special Servicer Decision, the Master Servicer shall process and determine whether to consent to, subject to the consent of the Special Servicer, such modification, waiver or amendment) or the Master Servicer (with respect to any modification, waiver or amendment that does not constitute a Major Decision or a Special Servicer Decision) or (ii) with respect to any Specially Serviced Loan, the Special Servicer, in each case subject to any applicable consent or consultation rights (if any) of the Operating Advisor, the consent or consultation rights (if any) of the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder and the consultation rights (if any) of any related holder of a Pari Passu Companion Loan or its Companion Loan Holder Representative (as applicable), may modify, waive or amend any term of any Mortgage Loan or Serviced Whole Loan if such modification, waiver or amendment (A) is consistent with the Servicing Standard and (B) would not constitute a “significant modification” of such Mortgage Loan or Serviced Whole Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise (1) cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes or cause the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes or (2) result in the imposition of a tax upon either Trust REMIC or the Trust (including but not limited to the tax on “prohibited transactions” as defined in Code Section 860F(a)(2) and the tax on contributions to a REMIC set forth in Code Section 860G(d), but not including the tax on “net income from foreclosure property” under Code Section 860G(c)). The Master Servicer and the Special Servicer may rely on an Opinion of Counsel with respect to such determination.
In addition, subject to the next sentence, with respect to non-Specially Serviced Loans, the Master Servicer, prior to taking any action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) and prior to taking any action with respect to a Special Servicer Decision (or making a determination not to take action with respect to a Special Servicer Decision), shall refer any request with respect to such Major Decision or Special Servicer Decision to the Special Servicer and the Special Servicer shall process the request directly or, if mutually agreed to by the Special Servicer and the Master Servicer, the Master Servicer shall (subject to the consent of the Special Servicer) process such request. If the Master Servicer and the Special Servicer mutually agree that the Master Servicer shall (subject to the consent of the Special Servicer) process a request with respect to a Major Decision or Special Servicer Decision, the Master Servicer shall prepare and submit its written analysis and recommendation to the Special Servicer with all information reasonably available to the Master Servicer that the Special Servicer may reasonably request in order to withhold or grant its consent, and in all cases the Special Servicer shall be entitled (subject to the consultation rights of the Operating Advisor, the consent or consultation rights of the Controlling Class Representative or any related Whole Loan Directing Holder, or the consultation rights of any related Companion Loan Holder or its Companion Loan Holder Representative (as
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applicable)) to approve or disapprove any modification, waiver or amendment or other action that constitutes a Major Decision or Special Servicer Decision. Subject to Section 3.10 of this Agreement, if the Master Servicer is processing the request for a Major Decision or Special Servicer Decision, the Special Servicer shall have 15 Business Days (or, (a) with respect to a Serviced Whole Loan (other than the Charles River Plaza North Whole Loan), such longer period as required by the related Co-Lender Agreement for review by any related Companion Loan Holder or its Companion Loan Holder Representative and (b) with respect to the Charles River Plaza North Whole Loan, such longer period as required by the related Co-Lender Agreement for review by any related Whole Loan Directing Holder or its designee) (or 30 days with respect to an Acceptable Insurance Default) (from the date that the Special Servicer receives the Master Servicer’s written analysis and recommendation and any supporting information it requested from the Master Servicer) to analyze and approve such Major Decision or Special Servicer Decision and, prior to the end of such 15 Business Day period or such longer period if required by the applicable Co-Lender Agreement or 30-day period, as applicable, for so long as a Control Termination Event has not occurred and is not continuing with respect to a Major Decision, is required to notify the Controlling Class Representative, in the case of the Charles River Plaza North Whole Loan for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the related Whole Loan Directing Holder or, in the case of the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder, as applicable, of such request for approval and provide its written analysis and recommendation with respect thereto. Following such notice, the Controlling Class Representative, related Whole Loan Directing Holder or the WPC Department Store Portfolio Directing Holder, as applicable, shall have 10 Business Days (or, in the case of a determination of an Acceptable Insurance Default, 20 days) from the date it receives from the Special Servicer the recommendation and analysis of the Master Servicer or the Special Servicer, as applicable, and any other information it may reasonably request (or, with respect to the AB Whole Loan, such longer time period as may be provided in the related Co-Lender Agreement) to approve any recommendation of the Special Servicer or the Master Servicer relating to any request for approval. In any event, subject to the Co-Lender Agreement for any Whole Loan, if the Controlling Class Representative, Whole Loan Directing Holder or WPC Department Store Portfolio Directing Holder, if required, does not respond to a request for approval by 5:00 p.m. on the 10th Business Day or such longer period if required by the applicable Co-Lender Agreement or 20th day, as applicable, after receipt of the applicable recommendation and analysis and other requested information as set forth in the preceding sentence, the Special Servicer or the Master Servicer, as applicable, may deem its recommendation approved by the Controlling Class Representative and if the Master Servicer processes such request and the Special Servicer does not respond to a request for approval within the required 15 Business Days or such longer period if required by the applicable Co-Lender Agreement or 30 days, as applicable, the Master Servicer may deem its recommendation approved by the Special Servicer. With respect to any non-Specially Serviced Loan, the Master Servicer, without the consent of the Special Servicer, shall be responsible to determine whether to consent to or approve any request by the related Mortgagor with respect to any action that is neither a Major Decision nor a Special Servicer Decision.
No modification, waiver or amendment of any Co-Lender Agreement related to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any Serviced Companion Loan, or an action to enforce rights with respect thereto, in each case, in a manner that materially and
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adversely affects the rights, duties and obligations of the Special Servicer or the Master Servicer, as applicable, shall be permitted without the prior written consent of the Special Servicer or the Master Servicer, as applicable.
(b) All modifications, waivers or amendments of any Mortgage Loan or Serviced Whole Loan shall be in writing and shall be effected in a manner consistent with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable, shall notify in writing the Trustee, the Certificate Administrator, the Depositor, any related Serviced Companion Loan Holder(s) (in the case of a Serviced Whole Loan which, for so long as any Serviced Companion Loan has been included in an Other Securitization Trust, shall be deemed to be the related master servicer under the related Other Pooling and Servicing Agreement, unless the notifying party has received written notice otherwise), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider, of any modification, waiver or amendment of any term of any Mortgage Loan or Serviced Whole Loan and the date thereof, and shall deliver a copy to the Trustee, any related Serviced Companion Loan Holder(s) (in the case of a Serviced Whole Loan which, for so long as any Serviced Companion Loan has been included in an Other Securitization Trust, shall be deemed to be the related Other Master Servicer under the related Other Pooling and Servicing Agreement, unless the notifying party has received written notice otherwise), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event) and an original to the Custodian of the recorded agreement relating to such modification, waiver or amendment within 15 Business Days following the execution and recordation thereof. For the avoidance of doubt, the requirements with respect to delivery of an assumption agreement shall be governed by Section 3.09.
(c) Any modification of any Mortgage Loan Documents that requires obtaining a Rating Agency Confirmation pursuant to such Mortgage Loan Documents, or any modification that would eliminate, modify or alter the requirement of obtaining a Rating Agency Confirmation in such Mortgage Loan Documents, shall not be made without obtaining a Rating Agency Confirmation. The Rating Agency Confirmation shall be obtained at the related Mortgagor’s expense in accordance with the related Loan Agreement or, if not so provided in such Loan Agreement or if such Mortgagor does not pay, at the expense of the Trust Fund.
(d) Promptly after any Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan, the Special Servicer shall request from the Certificate Administrator the name of the current Controlling Class Representative and shall request from the Master Servicer the name of the current related Companion Loan Holder(s). Upon receipt of the name of such current Controlling Class Representative from the Certificate Administrator, the Special Servicer shall notify the Controlling Class Representative that such Mortgage Loan became a Specially Serviced Loan. Upon receipt of the name(s) of such current related Companion Loan Holder from the Master Servicer, the Special Servicer shall notify the related Companion Loan Holder that the related Serviced Whole Loan became a Specially Serviced Loan. The Certificate Administrator shall be responsible for providing the name of the current Controlling Class
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Representative only to the extent the Controlling Class Representative has identified itself as such to the Certificate Administrator; provided that if the Controlling Class Representative is determined pursuant to the proviso in the definition of “Controlling Class Representative”, then (i) the Certificate Administrator shall determine which Class is the Controlling Class and (ii) the Special Servicer shall request from the Certificate Administrator, and the Certificate Administrator shall request from the Depository at the expense of the Trust, the list of Beneficial Holders of the Controlling Class, and the Certificate Administrator shall provide (on a reasonably prompt basis) such list to the Special Servicer and the Master Servicer at the expense of the Trust Fund.
(e) [Reserved.]
(f) The Special Servicer or Master Servicer may, as a condition to granting any request by a Mortgagor for consent to a modification, extension, waiver or indulgence or any other matter or thing, the granting of which is within its discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan or Serviced Whole Loan and, further, pursuant to the terms of this Agreement and applicable law, require that such Mortgagor pay to it a reasonable or customary fee for the additional services performed in connection with such request and any related costs and expenses incurred by it; provided that the charging of such fee would not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
(g) Notwithstanding anything set forth in this Agreement, in no event shall the Special Servicer be permitted to:
(i) extend the Maturity Date of a Mortgage Loan or Serviced Whole Loan beyond a date that is three (3) years prior to the Rated Final Distribution Date; or
(ii) if the Mortgage Loan or Serviced Whole Loan is secured by a ground lease, extend the Maturity Date of such Mortgage Loan or Serviced Whole Loan beyond a date which is 20 years or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the ground lease, 10 years prior to the end of the current term of such ground lease, plus any options to extend exercisable unilaterally by the related Mortgagor.
(h) In connection with (i) the release of a Mortgaged Property or any portion of a Mortgaged Property from the lien of the related Mortgage or (ii) the taking of a Mortgaged Property or any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the Master Servicer or the Special Servicer, as applicable, to calculate (or require the related Mortgagor to provide such calculation to the Master Servicer or the Special Servicer, as applicable) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then, unless then permitted by the REMIC Provisions, such calculation shall exclude the value of personal property and going concern value, if any. If, following any such release or taking, the loan-to-value ratio as so calculated is greater than 125%, the Master Servicer or Special Servicer, as applicable, will require a payment
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of principal by a “qualified amount” as determined under Revenue Procedure 2010-30 or successor provisions unless the related Mortgagor provides an Opinion of Counsel that if such amount is not paid the related Mortgage Loan will not fail to be a Qualified Mortgage.
(i) If and to the extent that the Trust, as holder of a Non-Serviced Mortgage Loan, is entitled to exercise any consent and/or consultation rights with respect to modifications, waivers and amendments or certain other major decisions under the applicable Other Pooling and Servicing Agreement, such rights shall be exercised by the Controlling Class Representative or, following a Consultation Termination Event, the Operating Advisor, in accordance with Section 3.01(j). The Master Servicer and the Special Servicer shall only be obligated to forward any requests received from the related Other Master Servicer or the related Other Special Servicer, as applicable, for such consent and/or consultation to the Controlling Class Representative (unless, with respect to consent rights, a Control Termination Event has occurred and is continuing or, with respect to consultation rights, a Consultation Termination Event has occurred) or, following a Consultation Termination Event with respect to any consultation rights, to the Operating Advisor, and shall have no right or obligation to exercise any such consent or consultation rights. For the avoidance of doubt, the foregoing provisions of this paragraph shall not impose any consent rights on the Operating Advisor with respect to the Non-Serviced Mortgage Loan.
Section 3.25 Additional Obligations with Respect to Certain Mortgage Loans.
(a) With respect to each Mortgage Loan (other than the Non-Serviced Mortgage Loans) with a Stated Principal Balance in excess of $35,000,000, with respect to any replacement of the Manager for the related Mortgaged Property, the Master Servicer or Special Servicer, as applicable, to the extent permitted by the related Mortgage Loan Documents, shall require a Rating Agency Confirmation and shall condition its consent to such replacement on the Mortgagor paying for such Rating Agency Confirmation.
With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), if any mezzanine loan is directly or indirectly secured by any equity interest of the related Mortgagor, the Master Servicer (if (i) the related Mortgage Loan is a non-Specially Serviced Loan and (ii) the performance of the particular obligation would not constitute a Special Servicer Decision or a Major Decision) or the Special Servicer (if (i) the related Mortgage Loan is a Specially Serviced Loan or (ii) the performance of an obligation would constitute a Special Servicer Decision or a Major Decision) shall perform the obligations of the Trust, as holder of the related Mortgage Loan, or its servicer under the related mezzanine loan intercreditor agreement.
Section 3.26 Additional Matters Regarding Advance Reimbursement.
(a) Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Mortgage Loans deposited in the Collection Account, the Master Servicer, the Special Servicer or the Trustee, at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section 3.06(a)(ii)(B) of this Agreement
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immediately, may elect to refrain from obtaining such reimbursement for some or all such portion of the Nonrecoverable Advance during the one-month Prepayment Period ending on the then-current Determination Date, for successive one-month periods for a total not to exceed 12 months; provided that any deferral in excess of 6 months shall be subject to the consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing, in which case the Controlling Class Representative shall be consulted with unless a Consultation Termination Event has occurred and is continuing). If the Master Servicer, the Special Servicer or the Trustee makes such an election in its sole discretion to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent Collection Period (subject, again, to the same sole discretion option to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be reimbursable pursuant to Section 3.06(a)(ii)(B) of this Agreement). In connection with a potential election by the Master Servicer, the Special Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the one-month Prepayment Period ending on the related Determination Date for any Distribution Date, the Master Servicer, the Special Servicer or the Trustee shall further be authorized to wait for principal collections to be received before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof) until the end of such Prepayment Period; provided, however, that if, at any time the Master Servicer, the Special Servicer or the Trustee, as applicable, determines that the reimbursement of a Nonrecoverable Advance during a one-month Prepayment Period will exceed the full amount of the principal portion of general collections deposited in the Collection Account for such Distribution Date, then the Master Servicer, the Special Servicer or the Trustee, as applicable, shall, through a posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, give the Rating Agencies at least 15 days’ notice prior to any reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Mortgage Loans unless (1) the Master Servicer, the Special Servicer or the Trustee, as applicable, determines in its sole discretion that waiting 15 days after such a notice could jeopardize the Master Servicer’s, the Special Servicer’s or the Trustee’s, as applicable, ability to recover such Nonrecoverable Advances, (2) changed circumstances or new or different information becomes known to the Master Servicer, the Special Servicer or the Trustee, as applicable, that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (1) above, or (3) the Master Servicer or the Special Servicer, as applicable, has not timely received from the Trustee information requested by the Master Servicer to consider in determining whether to defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer, the Special Servicer or the Trustee, as applicable, shall, through a posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, give Rating Agencies notice of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Mortgage Loans as soon as reasonably practicable in such circumstances. Subject to Section 11.13 of this Agreement, the Master Servicer, the Special Servicer or the Trustee, as applicable, shall have no liability for any loss, liability or expense resulting from any notice provided to Rating Agencies contemplated by the immediately preceding sentence. Any election by the Master Servicer, the Special Servicer
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or the Trustee to refrain from reimbursing itself for any Nonrecoverable Advance (together with interest thereon) or portion thereof with respect to any Collection Period shall not be construed to impose on the Master Servicer, the Special Servicer or the Trustee any obligation to make such an election (or any entitlement in favor of any Certificateholder or any other Person to such an election) with respect to any subsequent Collection Period or to constitute a waiver or limitation on the right of the Master Servicer, the Special Servicer or the Trustee to otherwise be reimbursed for such Nonrecoverable Advance immediately (together with interest thereon). Any such election by the Master Servicer, the Special Servicer or the Trustee shall not be construed to impose any duty on the other such party to make such an election (or any entitlement in favor of any Certificateholder or any other Person to such an election). Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more Prepayment Periods shall not limit the accrual of interest on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. None of the Master Servicer, the Special Servicer, the Trustee or the other parties to this Agreement will have any liability to one another or to any of the Certificateholders for any such election that such party makes to refrain or not to refrain from reimbursing itself as contemplated by this paragraph or for any losses, damages or other adverse economic or other effects that may arise from such an election nor will such election constitute a violation of the Servicing Standard or any duty under this Agreement. The Master Servicer’s, the Special Servicer’s or the Trustee’s, as applicable, election, if any, to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and shall not be construed as an obligation on the part of the Master Servicer, the Special Servicer or the Trustee, as applicable, or a right of the Certificateholders. Nothing herein shall give the Master Servicer, the Special Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable Advance if there are principal collections then available in the Collection Account pursuant to Section 3.06 of this Agreement or to defer reimbursement of a Nonrecoverable Advance for an aggregate period exceeding 12 months.
(b) If the Master Servicer is required to make a Property Advance, but does not do so within 15 days after the Property Advance is required to be made, then the Trustee will be required: (i) if a Responsible Officer of the Trustee has actual knowledge of the failure, to give the Master Servicer notice of its failure; and (ii) if the failure continues for three more Business Days, to make the Property Advance unless the Trustee determines such Property Advance to be a Nonrecoverable Advance.
Section 3.27 Companion Loan Co-Lender Matters.
(a) If, pursuant to Section 2.03, Section 3.17 or Section 9.01 of this Agreement, any Mortgage Loan that relates to a Serviced Whole Loan is purchased from, repurchased from or substituted out of, the Trust Fund, the subsequent holder thereof shall be bound by the terms of the Co-Lender Agreement and shall assume the rights and obligations of the holder of the note(s) that represent the related Mortgage Loan under such Co-Lender Agreement. All portions of the related Mortgage File and (to the extent provided under the related Loan Purchase Agreement) other documents pertaining to such Mortgage Loan shall be endorsed or assigned to the extent necessary or appropriate to the purchaser of such Mortgage Loan in its capacity as the holder of the Note(s) that represent the related Mortgage Loan (as a result of such purchase, repurchase or substitution) and (except for the actual Note(s)) on behalf
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of the holder of the Note(s) that represent the Companion Loan. Thereafter, such Mortgage File shall be held by the holder of the Note(s) that represent the related Mortgage Loan or a custodian appointed thereby for the benefit thereof, on behalf of itself and the holder of the related Companion Loan as their interests appear under the Co-Lender Agreement. If the related Servicing File is not already in the possession of such party, it shall be delivered to the master servicer or special servicer, as the case may be, under any separate servicing agreement for the Whole Loans.
(b) With respect to each Companion Loan that is part of a Serviced Whole Loan, notwithstanding any rights the Operating Advisor or the Controlling Class Representative hereunder may have to consult with respect to any action or other matter with respect to the servicing of such Companion Loan, to the extent the related Co-Lender Agreement provides that such right is exercisable by the related Companion Loan Holder or is exercisable in conjunction with any related Companion Loan Holder or its Companion Loan Holder Representative, then (i) neither the Operating Advisor nor the Controlling Class Representative shall be permitted to exercise such right or, (ii) to the extent provided in the related Co-Lender Agreement, the Operating Advisor or the Controlling Class Representative, as applicable, shall be required to exercise such right in conjunction with any related Companion Loan Holder or its Companion Loan Holder Representative, as applicable. Additionally, notwithstanding anything in this Agreement to the contrary but subject to Section 3.17(p) (as to consent rights) and Section 3.27(d) below (as to consultation rights), the Master Servicer or Special Servicer, as applicable, shall consult with, seek the approval of, or obtain the consent of the holder of any Companion Loan or its Companion Loan Holder Representative with respect to any matters with respect to the servicing of such Companion Loan to the extent required under related Co-Lender Agreement and shall not take such actions requiring consent of or consultation with the Companion Loan Holder or its Companion Loan Holder Representative without such consent or consultation. In addition, notwithstanding anything to the contrary, the Master Servicer or Special Servicer, as applicable, shall deliver reports and notices to the Companion Loan Holder as required under the Co-Lender Agreement.
(c) With respect to each Serviced Whole Loan, the Master Servicer shall prepare, or cause to be prepared, on an ongoing basis a statement setting forth, to the extent applicable to such Serviced Whole Loan:
(i) (A) the amount of the distribution from the related Serviced Whole Loan Custodial Account allocable to principal and (B) separately identifying the amount of scheduled principal payments, balloon payments, principal prepayments made at the option of the Mortgagor or other principal prepayments (specifying the reason therefor), net liquidation proceeds and foreclosure proceeds included therein and information on distributions made with respect to the related Serviced Whole Loan;
(ii) the amount of the distribution from the related Serviced Whole Loan Custodial Account allocable to interest and the amount of Default Interest allocable to the related Serviced Whole Loan;
(iii) the amount of the distribution to the related Companion Loan Holder, separately identifying the non-default interest, principal and other amounts included
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therein, and if the distribution to a Companion Loan Holder is less than the full amount that would be distributable to such Companion Loan Holder if there were sufficient amounts available therefor, the amount of the shortfall and the allocation thereof between interest and principal and the amount of the shortfall, if any, under the related Serviced Whole Loan;
(iv) the principal balance of each of the related Serviced Whole Loan and related Companion Loan after giving effect to the distribution of principal on the most recent Distribution Date; and
(v) the amount of the servicing fees paid to the Master Servicer and the Special Servicer with respect to the most recent Distribution Date, showing separately the Servicing Fee, the Special Servicing Fee, the Workout Fee and the Liquidation Fee.
Not later than each Distribution Date, the Master Servicer shall make the foregoing statement available to the Companion Loan Holder by electronic means (which may include posting such information pursuant to the applicable CREFC(R) reports on the Master Servicer’s website).
(d) Unless otherwise stated in the related Co-Lender Agreement and notwithstanding anything in this Agreement to the contrary, with respect to each Serviced Whole Loan (other than the Charles River Plaza North Whole Loan, which is addressed in the next paragraph) (i)(a) with respect to any non-Specially Serviced Loan, the Special Servicer (with respect to any Major Decision or Special Servicer Decision, unless the Master Servicer and the Special Servicer mutually agree that, in connection with any modification, waiver or amendment that constitutes a Major Decision or a Special Servicer Decision, the Master Servicer will, process and determine whether to consent, subject to the consent of the Special Servicer, to such modification, waiver or amendment) or the Master Servicer (with respect to any modification, waiver or amendment that does not constitute a Major Decision or a Special Servicer Decision), or (b) with respect to any Specially Serviced Loan, the Special Servicer, as applicable, shall be required to provide copies of any notice, information and report that it is required to provide to the Controlling Class Representative (or, with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder) pursuant to this Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to such Serviced Whole Loan, to any related Companion Loan Holder (or its Companion Loan Holder Representative), within the same time frame it is required to provide to the Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Representative under this Agreement due to the occurrence and continuance of a Control Termination Event or a Consultation Termination Event) (or with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder) and (ii) the Special Servicer, upon request, shall be required to consult with any related Serviced Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor) on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole
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Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the related Serviced Whole Loan, and consider alternative actions recommended by such related Serviced Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor); provided that after the expiration of a period of ten (10) Business Days from the delivery to such related Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor) by the Master Servicer or Special Servicer, as applicable, of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Representative (or, with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder), the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with such related Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor) or consider alternate actions recommended by the related Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor), whether or not such related Companion Loan Holder (or, with respect to the WPC Department Store Portfolio Whole Loan, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (or their representatives) or, after the occurrence of a Consultation Termination Event, the Operating Advisor) has responded within such ten (10) Business Day period (unless the Master Servicer or the Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto); provided, further, that, if the Master Servicer or the Special Servicer, as applicable, determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders, the Master Servicer or the Special Servicer, as applicable, may take such action without waiting for such response; provided, further, that, if the Master Servicer or the Special Servicer, as applicable, takes any action in accordance with the immediately preceding proviso, the Master Servicer or the Special Servicer, as applicable, shall provide the related Companion Loan Holder with prompt written notice following such action, including a reasonably detailed explanation of the basis. Notwithstanding the consultation rights of any related Companion Loan Holder (or its Companion Loan Holder Representative) set forth in the immediately preceding sentence, the Master Servicer or the Special Servicer, as applicable, may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan
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Holder. The Special Servicer shall not be obligated at any time to follow or take any alternative actions recommended by a Companion Loan Holder (or its representative) with respect to a Serviced Whole Loan (other than the WPC Department Store Portfolio Directing Holder).
In addition to the foregoing, with respect to the Charles River Plaza North Whole Loan, (i) if the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, the Special Servicer shall seek the approval of the holder of the Charles River Plaza North Subordinate Companion Loan (or its representative) prior to taking any AB Whole Loan Major Decision, and (ii) if the holder of the Charles River Plaza North Subordinate Companion Loan is not the Charles River Plaza North Directing Holder, the Special Servicer shall (a) provide each related Pari Passu Companion Loan Holder (or its representative) copies of any notice, information and report that it is required to provide to the Controlling Class Representative pursuant to this Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to such Serviced Whole Loan to any related Companion Loan Holder (or its representative), within the same time frame it is required to provide to the Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Representative under this Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event), and (b) upon request, consult with any related Pari Passu Companion Loan Holder (or its representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Serviced Pari Passu Companion Loan Holder (or its representative) requests consultation with respect to any such Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the related Serviced Whole Loan, and consider alternative actions recommended by such Serviced Companion Loan Holder (or its representative); provided that after the expiration of a period of ten Business Days from the delivery to a related Companion Loan Holder (or its representative) of such items of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Representative, the Special Servicer will no longer be obligated to consult with such Pari Passu Companion Loan Holder (or its representative), unless the Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten Business Days shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto; provided, further, that if the Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders, the Special Servicer may take such action without waiting for such Pari Passu Companion Loan Holder’s response. The Special Servicer shall not be obligated at any time to follow or take any alternative actions recommended by a Companion Loan Holder (or its representative) with respect to the Charles River Plaza North Whole Loan (unless such Companion Loan Holder is the Charles River Plaza North Directing Holder).
In addition to the foregoing, with respect to the WPC Department Store Portfolio Whole Loan, after the WPC Department Store Portfolio Securitization Date the related Mortgage Loan shall be a Non-Serviced Mortgage Loan, and the rights, duties and obligations of the Trust and the parties to this Agreement shall be as set forth herein with respect to Non-Serviced Mortgage Loans.
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(e) In addition to the consultation rights of a Companion Loan Holder (or its Companion Loan Holder Representative) provided in the immediately preceding paragraph, a Companion Loan Holder shall have the right to attend (in person or telephonically) annual meetings with the Special Servicer at the offices of the Special Servicer upon reasonable notice and at times reasonably acceptable to the Special Servicer in which servicing issues related to the related Serviced Whole Loan are discussed.
(f) Upon receipt of written notice of the transfer of all or a portion of any Serviced Companion Loan, the Master Servicer shall notify the Special Servicer, the Trustee, the Custodian and the Certificate Administrator of the identity and notice information of the successor Companion Loan Holder(s) (or its representative) to the extent the Master Servicer has such information, such written notice is not also addressed to such applicable party and the Master Servicer has not previously provided such information thereto; provided that, if a Companion Loan has been included in an Other Securitization Trust, the Companion Loan Holder will be deemed to be the related master servicer under the related Other Pooling and Servicing Agreement for purposes of providing notice(s), reports and any other information to the Companion Loan Holder under this Agreement, unless the notifying party has received written notice otherwise. Subject to Section 11.04, the Master Servicer may reasonably rely on the information provided to the Master Servicer regarding the identity and/or contact information of a Serviced Companion Loan Holder (or its representative). Each of the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall be entitled to rely on such information so provided by the Master Servicer.
Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, the Charles River Plaza North Whole Loan Directing Holder, any Serviced Companion Loan Holder (or its representative), any Subordinate Companion Loan Holder (or its representative) or the Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard or any Co-Lender Agreement, require or cause the Special Servicer to violate provisions of this Agreement or the terms of any Mortgage Loan or Serviced Whole Loan, expose any Certificateholder or any party to this Agreement or their affiliates, officers, directors or agents to any claim, suit or liability, cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes, result in the imposition of “prohibited transaction” or “prohibited contribution” tax under the REMIC provisions of the Code or the imposition of a tax upon either Trust REMIC or the loss of REMIC status, or materially expand the scope of the Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement.
Section 3.28 Appointment and Duties of the Operating Advisor.
(a) Pentalpha Surveillance LLC is hereby appointed to serve as the initial Operating Advisor.
(b) The Operating Advisor, as an independent contractor, shall review the Special Servicer’s operational practices in respect of Specially Serviced Loans, consult with the Special Servicer and perform each other obligation of the Operating Advisor as set forth in this Agreement solely on behalf of the Trust and in the best interest of, and for the benefit of, the
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Certificateholders (as a collective whole as if such Certificateholders and, with respect to a Serviced Companion Loan that is a Pari Passu Companion Loan, the related holder(s) of such Pari Passu Companion Loan constituted a single lender) and not any particular Class of those Certificateholders, as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment (the “Operating Advisor Standard”). The Operating Advisor shall not owe any fiduciary duty to the Master Servicer, the Special Servicer or any other Person in connection with this Agreement.
(c) Prior to the occurrence and continuance of a Control Termination Event, the Operating Advisor shall promptly review (i) all information available to Privileged Persons on the Certificate Administrator’s Website with respect to the Special Servicer, assets on the CREFC® Servicer Watch List and Specially Serviced Loans and (ii) each Final Asset Status Report.
(d) (i) After the occurrence and during the continuance of a Control Termination Event, the Operating Advisor shall review the Special Servicer’s operational practices in light of the Servicing Standard and the requirements of this Agreement, with respect to the resolution and/or liquidation of the Specially Serviced Loans.
(ii) After the occurrence and during the continuance of a Control Termination Event, based on the Operating Advisor’s review of any annual compliance statement and any assessment of compliance delivered to the Operating Advisor pursuant to Section 10.07 and Section 10.08 of this Agreement, as applicable, any attestation report delivered to the Operating Advisor pursuant to Section 10.09 of this Agreement, any Asset Status Report and other information (other than any communications between the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder or a Serviced Companion Loan Holder (or its Companion Loan Holder Representative), as applicable, on the one hand, and the Special Servicer, on the other hand, that would be Privileged Information) delivered to the Operating Advisor by the Special Servicer, the Operating Advisor shall (if any Mortgage Loans were Specially Serviced Loans during the prior calendar year) prepare and deliver to the Depositor, the Rule 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the Rule 17g-5 Information Provider’s Website), the Trustee and the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website), within 120 days of the end of the prior calendar year an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit R of this Agreement (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement; provided, further, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement) setting forth the Operating Advisor’s assessment of the Special Servicer’s performance of its duties under this Agreement during the prior calendar year on a platform-level basis with respect to the resolution and liquidation of Specially Serviced Loans and with respect to each Asset Status Report delivered to the Operating Advisor by the Special Servicer during the prior calendar year. As used in connection with the Operating Advisor Annual Report, the term “platform-level basis” refers to the Special
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Servicer’s performance of its duties as they relate to the resolution or liquidation of Specially Serviced Loans, taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Operating Advisor of the items required to be reviewed by it pursuant to this Agreement.
Subject to the restrictions in this Agreement, including, without limitation, this Section 3.28, each such Operating Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Loans, (B) comply with all of the confidentiality requirements regarding Privileged Information applicable to the Operating Advisor described in this Agreement and, (C) in the event a lack of access to Privileged Information limits or prohibits the Operating Advisor from performing its duties under this Agreement, the Operating Advisor shall describe any such limitations in the Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from its lack of access to Privileged Information. Such Operating Advisor Annual Report shall be delivered to the Trustee, the Certificate Administrator, the Rule 17g-5 Information Provider and the Depositor, and the Certificate Administrator and the Rule 17g-5 Information Provider shall promptly, upon receipt, post such Operating Advisor Annual Report on the Certificate Administrator’s Website and the Rule 17g-5 Information Provider’s Website, respectively; provided, however, that the Operating Advisor shall deliver to (a) the Special Servicer, (b) for so long as a Consultation Termination Event does not exist, the Controlling Class Representative, (c) with respect to the Charles River Plaza North Whole Loan, the Charles River Plaza North Directing Holder (for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder) and (d) with respect to the WPC Department Store Portfolio Whole Loan, the WPC Department Store Portfolio Directing Holder any annual report produced by the Operating Advisor at least ten (10) calendar days prior to its delivery to the Depositor, the Trustee and the Certificate Administrator. The Operating Advisor may, but shall not be obligated to, revise the Operating Advisor Annual Report based on any comments received from the Special Servicer or the Controlling Class Representative. Notwithstanding the foregoing, no Operating Advisor Annual Report shall be required from the Operating Advisor with respect to the Special Servicer if during the prior calendar year no Asset Status Report was prepared by the Special Servicer in connection with a Specially Serviced Loan or REO Property. In addition, in the event the Special Servicer is replaced during the prior calendar year, the Operating Advisor shall only be required to prepare an Operating Advisor Annual Report relating to the entity that was acting as a Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report.
(e) Prior to the occurrence and continuance of a Control Termination Event, the Special Servicer will forward any Appraisal Reduction Amount and net present value calculations used in the Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan to the Operating Advisor after such calculations have been finalized. The Operating Advisor shall review such
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calculations but may not opine on, or otherwise call into question such Appraisal Reduction Amount and/or net present value calculations; provided, however, that if the Operating Advisor discovers a mathematical error contained in such calculations, then the Operating Advisor shall notify the Special Servicer and the Controlling Class Representative of such error.
(f) After the occurrence and during the continuance of a Control Termination Event, after the calculation but prior to the utilization by the Special Servicer of any of the calculations related to (i) Appraisal Reduction Amounts or (ii) net present value used in the Special Servicer’s determination of the course of action to be taken in connection with the workout or liquidation of a Specially Serviced Loan, the Special Servicer shall forward such calculations, together with any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Operating Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Information), to the Operating Advisor promptly, but in any event no later than two (2) Business Days after preparing such calculations, and the Operating Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portion of the applicable formulas required to be utilized in connection with any such calculation.
In connection with this Section 3.28, in the event the Operating Advisor does not agree with the mathematical calculations or the application of the applicable non-discretionary portions of the formulas required to be utilized for such calculation, the Operating Advisor and the Special Servicer shall consult with each other in order to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formulas in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations to the Operating Advisor. In the event the Operating Advisor and Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Operating Advisor shall promptly notify the Certificate Administrator of such disagreement and the Certificate Administrator shall determine which calculation is to apply. In making such determination, the Certificate Administrator may hire an independent third-party to assist with any such calculation at the expense of the Trust Fund. The Certificate Administrator shall be entitled to conclusively rely on such third-party calculation.
(g) After the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult (on a non-binding basis) with the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Operating Advisor, but only to the extent consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event. Notwithstanding the foregoing, in the case of the Charles River Plaza North Whole Loan, for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, and in the case of the WPC Department Store Portfolio Whole Loan, the Operating Advisor shall not have any of the above described consultation or other rights with respect the Charles River Plaza North Whole Loan or the WPC Department Store Portfolio Whole Loan.
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(h) Subject to the requirements of confidentiality imposed on the Operating Advisor herein (including without limitation in respect of Privileged Information), the Operating Advisor shall respond to Inquiries relating to the Operating Advisor Annual Reports or actions by the Master Servicer or the Special Servicer as to which the Operating Advisor has consultation rights, whether or not referenced in any Operating Advisor Annual Report and made by Privileged Persons from time to time in accordance with the terms of Section 4.02(a) of this Agreement.
(i) Subject to the Privileged Information Exception, the Operating Advisor will be obligated to keep confidential any Privileged Information received from the Special Servicer, Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder or any Serviced Companion Loan Holder (or its Companion Loan Holder Representative) in connection with the exercise of the rights of the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder or Serviced Companion Loan Holder under this Agreement (including, without limitation, in connection with the review and/or approval of any Asset Status Report), subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information.
(j) The Operating Advisor shall keep all Privileged Information confidential and shall not disclose such Privileged Information to any Person (including Certificateholders other than the Controlling Class Representative (for so long as a Consultation Termination Event does not exist)), other than (1) to the extent expressly required by this Agreement, to the other parties to this Agreement with a notice indicating that such information is Privileged Information or (2) pursuant to a Privileged Information Exception. Notwithstanding the foregoing, the Operating Advisor will be permitted to share Privileged Information with its affiliates and any subcontractors of the Operating Advisor that agree in writing to be bound by the same confidentiality provisions applicable to the Operating Advisor. Each party to this Agreement that receives Privileged Information from the Operating Advisor with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the Special Servicer, the Charles River Plaza North Directing Holder (with respect to the Charles River Plaza North Whole Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder) and, unless a Consultation Termination Event has occurred and is continuing, the Controlling Class Representative (with respect to any Mortgage Loan other than (a) the Charles River Plaza North Mortgage Loan for so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder or (b) any Non-Serviced Whole Loan) other than pursuant to a Privileged Information Exception.
(k) On each Master Servicer Remittance Date, the Operating Advisor shall be paid the applicable Operating Advisor Fee from amounts on deposit in the Collection Account or the Serviced Whole Loan Custodial Account, as applicable, pursuant to Section 3.06 or Section 3.06A of this Agreement, as applicable. In addition, the Operating Advisor Consulting Fee shall be payable to the Operating Advisor with respect to each Major Decision for which the Operating Advisor has consultation rights. Each of the Operating Advisor Fee and the Operating Advisor Consulting Fee shall be payable from funds on deposit in the Collection Account as provided in Section 3.06 and Section 3.06A of this Agreement (or the Serviced Whole Loan
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Custodial Accounts), but with respect to the Operating Advisor Consulting Fee only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor. When the Operating Advisor has consultation rights with respect to a Major Decision under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Operating Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision, but only to the extent not prohibited by the Mortgage Loan Documents. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard, but in no event shall the Master Servicer or the Special Servicer take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection; provided that the Master Servicer or the Special Servicer, as applicable, shall consult with the Operating Advisor prior to any such waiver or reduction. Notwithstanding the foregoing, the Operating Advisor, as and to the extent set forth herein, shall have limited obligations or consultation rights with respect to any Mortgage Loan that is a Non-Serviced Whole Loan as of the Closing Date or any related REO Property and the WPC Department Store Portfolio Whole Loan, and in each case, no Operating Advisor Consulting Fee shall be payable with respect thereto.
Section 3.29 Rating Agency Confirmation.
(a) Notwithstanding the terms of any related Mortgage Loan Documents or other provisions of this Agreement, if any action under any Mortgage Loan Documents or this Agreement requires Rating Agency Confirmation as a condition precedent to such action, if the party (the “Requesting Party”) required to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within 10 Business Days of the Rating Agency Confirmation request being posted to the Rule 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then such Requesting Party shall be required to promptly request the related Rating Agency Confirmation again, and if there is no response to either such Rating Agency Confirmation request within five (5) Business Days of such second request, as applicable, or if such Rating Agency has responded in a manner that indicates such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation then (x) with respect to any condition in any Mortgage Loan Document or Co-Lender Agreement requiring a Rating Agency Confirmation or any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) or (z) below), then the Requesting Party (or, if the Requesting Party is the related Mortgagor, then the Master Servicer (with respect to the non-Specially Serviced Loans, if the Master Servicer is processing the action requiring Rating Agency Confirmation) or the Special Servicer (with respect to the Specially Serviced Loans, REO Mortgage Loans and any non-Specially Serviced Loans if the Special Servicer is processing the action requiring Rating Agency Confirmation with respect to such non-Specially Serviced Loans), as applicable) shall determine (with the consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing) or consultation with the Controlling Class Representative (unless a Consultation Termination Event has occurred and is continuing) or, with respect to the Charles River Plaza North Whole Loan, for so long as the holder of the
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Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, the consent of the Charles River Plaza North Directing Holder or, with respect to the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Securitization Date), the consent of the WPC Department Store Portfolio Directing Holder, as applicable (but in the case of the Controlling Class Representative, only in the case of actions that would otherwise be Major Decisions and, in the case of the Charles River Plaza North Subordinate Companion Loan or the WPC Department Store Portfolio Directing Holder, only in the case of actions that would otherwise be AB Whole Loan Major Decisions), which consent shall be pursued by the Special Servicer and deemed given if such Controlling Class Representative, Charles River Plaza North Directing Holder or the WPC Department Store Portfolio Directing Holder, as applicable, does not respond within seven (7) Business Days of receipt of a request from the Special Servicer to consent to the Requesting Party’s determination), in accordance with its duties under this Agreement and in accordance with the Servicing Standard whether such action would be in accordance with the Servicing Standard, and if the Requesting Party (or if the Requesting Party is the related Mortgagor, then the Master Servicer (with respect to non-Specially Serviced Loans, if the Master Servicer is processing the action requiring Rating Agency Confirmation) or the Special Servicer (with respect to Specially Serviced Loans, REO Mortgage Loans and non-Specially Serviced Loans if the Special Servicer is processing)) determines that such action would be in accordance with the Servicing Standard, except as provided in Section 3.29(b), then the requirement to obtain a Rating Agency Confirmation shall not apply, (y) with respect to a replacement of the Master Servicer or Special Servicer, such condition shall be considered satisfied if (i) the applicable replacement Master Servicer or Special Servicer is rated at least “CMS3” (in the case of the Master Servicer) or “CSS3” (in the case of a Special Servicer), if Fitch is the non-responding Rating Agency; (ii) KBRA has not cited servicing concerns of the applicable replacement master servicer or special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other commercial mortgage backed securitization transaction serviced by the applicable servicer prior to the time of determination, if KBRA is the non-responding Rating Agency; (iii) Moody’s has not cited servicing concerns of the applicable replacement master servicer or special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other CMBS transaction serviced by the applicable servicer prior to the time of determination, if Moody’s is the non-responding Rating Agency; and (iv) the replacement master servicer or replacement special servicer is acting as master servicer or special servicer, as applicable, in a commercial mortgage loan securitization that was rated by a Rating Agency within the 12-month period prior to the date of determination and Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of CMBS certificates citing servicing concerns with the replacement master servicer or replacement special servicer, as applicable, as the sole or material factor in such rating action, if Morningstar is the non-responding Rating Agency; and (z) with respect to a replacement or successor of the Operating Advisor, such condition shall be deemed to be waived with respect to any non-responding Rating Agency so long as such Rating Agency has not cited concerns regarding the replacement operating advisor as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other commercial
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mortgage-backed securities transaction with respect to which the replacement operating advisor acts as trust advisor or operating advisor prior to the time of determination.
Any Rating Agency Confirmation request made by the Master Servicer, Special Servicer, Certificate Administrator, Operating Advisor or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material reasonably necessary for the Rating Agency to process such request, subject to Section 11.13. Such written Rating Agency Confirmation request shall be provided in electronic format in accordance with Section 11.13(b) and the Master Servicer, Special Servicer. Certificate Administrator, Operating Advisor or Trustee, as applicable, shall be required to send the Rating Agency Confirmation request to the Rating Agencies in accordance with Section 11.13(b).
Promptly following the Requesting Party’s (or, if the Requesting Party is the related Mortgagor, then the Master Servicer’s or the Special Servicer’s, as applicable) determination to take any action discussed in this Section 3.29(a) without receiving any required Rating Agency Confirmation, such Requesting Party (or the Master Servicer or the Special Servicer, as applicable) shall provide electronic written notice in accordance with Section 11.13(b) of the action taken for the particular item at such time and the Master Servicer, Special Servicer, Certificate Administrator or Trustee, as applicable, shall be required to send the Rating Agency Confirmation request to the Rating Agencies in accordance with Section 11.13(b).
(b) Notwithstanding anything to the contrary in Section 3.29(a), for purposes of the provisions of any Loan Document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral), release or substitution of any collateral, any Rating Agency Confirmation requirement as to which the Master Servicer (with respect to non-Specially Serviced Loans if the Master Servicer is processing the action requiring the Rating Agency Confirmation) or the Special Servicer (with respect to Specially Serviced Loans, REO Mortgage Loans and non-Specially Serviced Loans if the Special Servicer is processing the action requiring Rating Agency Confirmation with respect to such non-Specially Serviced Loans) would have been permitted to make a determination pursuant to Section 3.29(a)(x) shall be deemed to have been satisfied (it being understood that the Master Servicer (with respect to non-Specially Serviced Loans if the Master Servicer is processing the action requiring Rating Agency Confirmation) or the Special Servicer (with respect to Specially Serviced Loans, REO Mortgage Loans and non-Specially Serviced Loans if the Special Servicer is processing the action requiring Rating Agency Confirmation with respect to such non-Specially Serviced Loans), as applicable) shall in any event review the conditions required under the related Loan Documents with respect to such defeasance, release or substitution and confirm to its satisfaction in accordance with the Servicing Standard that such conditions (other than the requirement for a Rating Agency Confirmation) have been satisfied).
(c) For all other matters or actions (i) that are not specifically discussed in clauses (x), (y) or (z) of Section 3.29(a) above or (ii) that are not the subject of a Rating Agency Declination, the proposed action may not be permitted to proceed unless the applicable Requesting Party shall deliver Rating Agency Confirmation from each Rating Agency.
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(d) With respect to any Serviced Companion Loan as to which there exists Serviced Companion Loan Securities, if any action relating to the servicing and administration of the related Serviced Mortgage Loan, the related Serviced Whole Loan or any related REO Property (including, but not limited to, the replacement of the Master Servicer, the Special Servicer or a sub-servicer) (the “Relevant Action”) requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then, except as set forth below in this paragraph, such action will also require delivery of a Companion Loan Rating Agency Confirmation as a condition precedent to such action from each Companion Loan Rating Agency. Each Companion Loan Rating Agency Confirmation shall be sought by the Master Servicer, Special Servicer, Trustee, Certificate Administrator, Controlling Class Representative or applicable Certificateholders, as applicable, depending on whichever such party is seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action. The requirement to obtain a Companion Loan Rating Agency Confirmation with respect to any Serviced Companion Loan Securities will be subject to, and will be permitted to be waived by the Master Servicer and the Special Servicer on, and will be deemed to be satisfied or not to apply on, the same terms and conditions applicable to obtaining Rating Agency Confirmations, as set forth in this Agreement; provided that the Master Servicer, Special Servicer, Trustee, Certificate Administrator, Controlling Class Representative or applicable Certificateholders, as applicable, depending on which is seeking the subject Companion Loan Rating Agency Confirmation, shall forward to one or more of its counterpart (i.e., the Other Master Servicer, Other Special Servicer, Other Trustee or Other Certificate Administrator, as applicable), the Rule 17g-5 Information Provider’s counterpart for the related Other Securitization Trust, or such other party or parties (as are agreed to by the Master Servicer, the Special Servicer, Trustee, Certificate Administrator, Controlling Class Representative or applicable Certificateholders, as applicable, and the applicable parties for the related Other Securitization Trust), at the expense of the Other Securitization Trust to the extent not borne by the related Mortgagor, and in such format as the sender and recipient may reasonably agree, (i) the request for such Companion Loan Rating Agency Confirmation at least two (2) Business Days before it is sent to the applicable Companion Loan Rating Agency, (ii) all materials forwarded to the Rule 17g-5 Information Provider under this Agreement in connection with seeking the Rating Agency Confirmation(s) for the applicable Relevant Action at approximately the same time that such materials are forwarded to the Rule 17g-5 Information Provider, and (iii) any other materials that the applicable Companion Loan Rating Agency may reasonably request in connection with such Companion Loan Rating Agency Confirmation promptly following such request.
(e) Each of the Master Servicer and the Certificate Administrator shall, promptly following receipt of written request from the Special Servicer, provide to the Special Servicer the contact information for an Other Master Servicer, an Other Special Servicer, an Other Trustee, an Other Certificate Administrator and the Rule 17g-5 Information Provider’s counterpart for an Other Securitization Trust, in each case to the extent known to it.
Section 3.30 Certain Matters Relating to the Non-Serviced Mortgage Loans. In the event that any of the related Other Trustee, the related Other Master Servicer, the related Other Certificate Administrator or the related Other Special Servicer shall be replaced in accordance with the terms of the related Other Pooling and Servicing Agreement, the Master Servicer and the Special Servicer shall acknowledge its successor as the successor to the related
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Other Trustee, the related Other Master Servicer, the related Other Certificate Administrator or the related Other Special Servicer, as the case may be, in each case with reasonable promptness following request therefor by a party to the related Other Pooling and Servicing Agreement.
Prior to the WPC Department Store Portfolio Securitization Date, the Custodian shall hold the Mortgage File with respect to the related Whole Loan. On the WPC Department Store Portfolio Securitization Date, (i) the Custodian shall, upon receipt of a Request for Release, transfer the Mortgage File (other than the Note(s) evidencing the related Mortgage Loan, the original of which shall be retained by the Custodian) for the related Whole Loan to the related Other Trustee and (ii) the Master Servicer shall, upon written request, if the Master Servicer is not the related Other Master Servicer, transfer the Servicing File along with any escrows or reserve funds held for such Whole Loan to the related Other Master Servicer.
In connection with the sale of any Non-Serviced Whole Loan by any Other Special Servicer, upon receipt of any notices or materials required to be furnished by the applicable Other Special Servicer to the holder of the related Non-Serviced Mortgage Loan pursuant to the related Co-Lender Agreement, the Special Servicer shall, prior to the occurrence and continuance of a Control Termination Event, forward such materials to the Controlling Class Representative for its consent, if such consent is required (or for consultation, if consultation is required). The Special Servicer may (with the consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event or after consultation with the Controlling Class Representative prior to the occurrence and continuance of a Consultation Termination Event) waive any timing or delivery requirements related to such sale to the extent set forth in the related Co-Lender Agreement.
With respect to any Non-Serviced Mortgage Loan, the Controlling Class Representative, prior to the occurrence and continuance of a Consultation Termination Event, or the Operating Advisor, following the occurrence and during the continuance of a Control Termination Event, shall be entitled to exercise any consultation rights held by the holder of such Mortgage Loan in its capacity as a “Non-Controlling Note Holder” (or similar term identified in the related Co-Lender Agreement) under the related Co-Lender Agreement.
Section 3.31 General Acknowledgement Regarding Companion Loan Holders. Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) each Companion Loan Holder may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) each Companion Loan Holder may act solely in its own interests; (iii) no Companion Loan Holder has any duty to the Holders of any Class of Certificates; and (iv) no Companion Loan Holder shall have any liability whatsoever for having so acted in its own interests, and no Certificateholder may take any action whatsoever against any Companion Loan Holder or any director, officer, employee, agent or principal thereof for such Companion Loan Holder’s having so acted in its own interests.
Section 3.32 Litigation Control.
(a) With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), any Serviced Companion Loan or any related REO Loan or related REO Property, the Special Servicer shall in accordance with the Servicing Standard, direct, manage, prosecute
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and/or defend any action brought by a Mortgagor, guarantor, other obligor on the related Note or any affiliates thereof (each a “Borrower-Related Party”) against the Trust (including, without limitation, any action in which both the Trust and the Master Servicer are named), and/or the Special Servicer or any predecessor master servicer or special servicer, and represent the interests of the Trust in any litigation relating to the rights of the Trust, or of the Mortgagor or other Borrower-Related Party under the related Mortgage Loan documents or with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, as applicable, the related Mortgaged Property or other collateral securing such Mortgage Loan or such Serviced Whole Loan, or otherwise with respect to the enforcement of the obligations of a Borrower-Related Party under the related Mortgage Loan documents (“Loan-Related Litigation”). In the event that the Master Servicer is named in any Loan-Related Litigation but the Special Servicer is not named in such Loan-Related Litigation (and regardless of whether the Trust is named in such Loan-Related Litigation), the Master Servicer shall notify the Special Servicer of such litigation as soon as reasonably practicable but in any event no later than within ten (10) Business Days of the Master Servicer receiving service of such Loan-Related Litigation.
(b) To the extent the Master Servicer is named in Loan-Related Litigation, and neither the Trust nor the Special Servicer is named, in order to effectuate the role of the Special Servicer as contemplated by the immediately preceding paragraph, the Master Servicer shall (i) provide quarterly (unless requested in writing from time to time on a more frequent basis) status reports to the Special Servicer, regarding such Loan-Related Litigation; (ii) use reasonable efforts to have the Trust replace the Master Servicer as the appropriate party to the lawsuit; and (iii) so long as the Master Servicer remains a party to the lawsuit, consult with and act at the direction of the Special Servicer with respect to material decisions and material monetary settlements related to the interests of the Trust in such Loan-Related Litigation, including but not limited to the selection of counsel. If and/or once the Trust and/or the Special Servicer are named, the Special Servicer shall assume control of the Loan-Related Litigation as provided in Section 3.32(a) above, the Master Servicer shall no longer have the reporting obligations set forth above and the Special Servicer’s selection of counsel shall be subject to the consent of the Master Servicer which consent shall not be unreasonably withheld. Further, if there are claims against the Master Servicer, the Trust, and the Special Servicer, each party at the request of the other shall enter into a joint defense agreement in accordance with Section 3.32(h) below.
(c) The Special Servicer shall not (i) undertake (or direct the Master Servicer to undertake) any material settlement of any Loan-Related Litigation or (ii) initiate any material Loan-Related Litigation unless and until it has notified in writing the Controlling Class Representative (for so long as no Consultation Termination Event has occurred and is continuing and to the extent the identity of the Controlling Class Representative is actually known to the Special Servicer; provided that the Special Servicer shall make due inquiry of the Certificate Administrator as to the identity of the Controlling Class Representative), and the related holder of any Companion Loan (if such matter affects a Serviced Companion Loan and to the extent the identity of the holder of such Serviced Companion Loan is actually known to the Special Servicer), and the Controlling Class Representative (for so long as no Control Termination Event has occurred and is continuing) has not objected in writing within five (5) Business Days of having been notified thereof and having been provided with all information that the Controlling Class Representative has reasonably requested with respect thereto promptly following its receipt
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of the subject notice (it being understood and agreed that if such written objection has not been received by the Special Servicer within such 5 Business Day period, then the Controlling Class Representative shall be deemed to have approved the taking of such action); provided that, if the Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders and, with respect to a Serviced Whole Loan, the related Companion Loan Holders, the Special Servicer may take such action without waiting for the Controlling Class Representative’s response.
(d) Notwithstanding Section 3.32(c) above, neither of the Special Servicer nor the Master Servicer shall follow any advice, direction or consultation provided by the Controlling Class Representative that would require or cause the Special Servicer or the Master Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer or the Master Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan or Serviced Whole Loan, expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, cause any Trust REMIC created hereunder to fail to qualify as a REMIC, or any Grantor Trust created hereunder to fail to qualify as a grantor trust for federal income tax purposes or result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or materially expand the scope of the Special Servicer’s, the Master Servicer’s, the Certificate Administrator’s or the Trustee’s, as applicable, responsibilities under this Agreement.
(e) Notwithstanding the right of the Special Servicer provided in this Section to represent the interests of the Trust in Loan-Related Litigation, the Master Servicer shall retain the right at all times to make determinations in the Master Servicer’s sole discretion, relating to material and direct claims against the Master Servicer where a settlement by the Special Servicer has not otherwise been resolved pursuant to the terms of clause (g) below, including but not limited to the right to engage separate counsel, to make settlement decisions and to appear in any proceeding on its own behalf. The cost related to or incurred in connection with exercising such rights shall be subject to indemnification as and to the extent provided in this Agreement.
(f) Further, nothing in this Section 3.32 shall require the Master Servicer, the Special Servicer or any other party to this Agreement to take or fail to take any action which, in such party’s reasonable judgment, may result in a violation of the REMIC Provisions, Grantor Trust Provisions, subject the Master Servicer, the Special Servicer or other such party to liability, or materially expand the scope of the Master Servicer’s, the Special Servicer or such party’s obligations under this Agreement.
(g) In the event where the Master Servicer or Special Servicer is a named party neither the Special Servicer nor the Master Servicer will settle on behalf of the other such party, any Loan-Related Litigation without such other party’s consent unless: (i) such settlement does not contain or require any admission of liability, wrongdoing or consent to injunctive relief on the part of such other party and such other party is fully released, (ii) the cost of such settlement or any resulting judgment is and shall be paid by the Trust and payment of such cost or judgment is provided for in this Agreement, (iii) such other party is and shall be indemnified as and to the extent provided in this Agreement for all costs and expenses incurred in defending
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and settling the Loan-Related Litigation and for any judgment, (iv) any such action taken by the Master Servicer at the direction of the Special Servicer shall be deemed (as to the Master Servicer) to be in compliance with the Servicing Standard and (v) the Master Servicer or the Special Servicer, as applicable, provides such other party with assurance reasonably satisfactory to such other party, as to the items in clauses (i), (ii), (iii) and (iv).
(h) In the event both the Master Servicer and the Special Servicer or the Trust are named in Loan-Related Litigation, to the extent that the Master Servicer and the Special Servicer deem it appropriate, the Master Servicer and the Special Servicer shall (i) use reasonable efforts to enter into a joint defense agreement and (ii) otherwise cooperate with each other to afford the Master Servicer and the Special Servicer the rights afforded to such party in this Section 3.32.
(i) This Section 3.32 shall not apply in the event the Special Servicer authorizes the Master Servicer, and the Master Servicer agrees (both authority and agreement to be in writing), to make certain decisions or control certain Loan-Related Litigation on behalf of the Trust in accordance with the Servicing Standard.
(j) Notwithstanding the foregoing, and subject to the requirements of the second sentence in the second paragraph of Section 3.01(a) of this Agreement, (i) in the event that any action, suit, litigation or proceeding names the Trustee, Certificate Administrator or Custodian, in its respective individual capacity, or in the event that any judgment is rendered against the Trustee, Certificate Administrator or Custodian, as applicable, in its individual capacity, the Trustee, Certificate Administrator or Custodian, as applicable, upon prior written notice to the Master Servicer or the Special Servicer, as applicable, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (ii) in the event of any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or Mortgaged Properties, neither the Master Servicer nor the Special Servicer shall, without the prior written consent of the Trustee, Certificate Administrator or Custodian, as applicable, (A) initiate an action, suit, litigation or proceeding in the name of the Trustee, Certificate Administrator or Custodian, as applicable, whether in such capacity or individually, (B) engage counsel to represent the Trustee, Certificate Administrator or Custodian, as applicable, (C) settle any claim giving rise to liability to the Trustee, Certificate Administrator or Custodian, as applicable, in its individual capacity, or (D) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other similar actions with the intent to cause, and that actually causes, the Trustee, Certificate Administrator or Custodian, as applicable, to be registered to do business in any state (provided that neither the Master Servicer nor the Special Servicer shall be responsible for any delay due to the unwillingness of the Trustee, Certificate Administrator or Custodian to grant such consent); and (iii) in the event that any court finds that the Trustee, Certificate Administrator or Custodian, as applicable, is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Trustee, the Certificate Administrator or the Custodian, as applicable, shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests, whether as Trustee, Certificate Administrator or Custodian, as
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applicable, or individually (but not to otherwise direct, manage or prosecute such litigation or claim); provided, however, nothing in this subsection shall be interpreted to preclude the Special Servicer (with respect to any material Loan-Related Litigation, with the consent or consultation of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event or Consultation Termination Event, respectively) from initiating any action, suit, litigation or proceeding in its name as representative of the Trust.
Notwithstanding the foregoing or anything to the contrary in this Section 3.32, this Section 3.32 shall not apply to any Loan-Related Litigation and shall have no force and effect with respect thereto, in the event that either (i) at the time such Loan-Related Litigation is commenced or at any time during the continuance of such Loan-Related Litigation, Rialto Capital Advisors, LLC is no longer the Special Servicer with respect to the related Mortgage Loan or related Whole Loan or has received notice of its replacement as Special Servicer with respect to the related Mortgage Loan or related Whole Loan whether or not such replacement is effective or (ii) the Depositor, any Sponsor, any Mortgage Loan Seller, any Initial Purchaser, or any of their respective affiliates is an adverse party (with respect to the Trust or the Special Servicer) to such Loan-Related Litigation or holds any interest which is adverse to the Trust or the Special Servicer in the related Mortgage Loan or related Whole Loan (or any portion thereof) or the related Mortgaged Property to which Loan-Related Litigation relates, unless otherwise agreed to in writing by each of the Depositor, Sponsor, Mortgage Loan Seller, Initial Purchaser, or affiliate that is such a party or holds such interest, and in each case under clauses (i) and (ii) above, the applicable party listed above shall provide notice of such occurrence to the Master Servicer pursuant to the terms of this Agreement. For the further avoidance of doubt, in such circumstance described in this paragraph, the rights and obligations of the Master Servicer and the Special Servicer relating to litigation shall be as otherwise set forth in this Agreement.
ARTICLE
IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) (i) On each Master Servicer Remittance Date, the Master Servicer shall make the remittances and deposits specified in the first paragraph of Section 4.06(a) of this Agreement. On each Master Servicer Remittance Date in March of any calendar year, the Certificate Administrator shall withdraw from the Interest Reserve Account the related Withheld Amounts pursuant to Section 3.23 of this Agreement, and shall deposit any such amounts in the Lower-Tier Distribution Account. On each Distribution Date, the amounts that have been transferred to the Lower-Tier Distribution Account from the Collection Account or as P&I Advances or Compensating Interest Payments or pursuant to the preceding two sentences shall be deemed distributed on the Lower-Tier Regular Interests to the Upper-Tier REMIC, in accordance with Section 4.01(a)(ii) and Section 4.01(c)(ii) of this Agreement. Thereafter, such amounts shall be considered to be held in the Upper-Tier Distribution Account until distributed to the Certificateholders.
(ii) All distributions made in respect of interest on any Class of Principal Balance Certificates on each Distribution Date pursuant to Section 4.01(b), Section 4.01(d) or
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Section 9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest set forth in the Preliminary Statement hereto. All distributions made in respect of interest on any Class of Class X Certificates on each Distribution Date pursuant to Section 4.01(b), Section 4.01(d) or Section 9.01, and allocable to any particular Component of such Class of Certificates in accordance with the last paragraph of Section 4.01(b), shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of such Component’s Corresponding Lower-Tier Regular Interest. All distributions made in respect of principal of any Class of Principal Balance Certificates on each Distribution Date pursuant to Section 4.01(b), Section 4.01(d) or Section 9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest set forth in the Preliminary Statement hereto. All distributions of reimbursements of Realized Losses made in respect of any Class of Regular Certificates (other than the Class X Certificates) on each Distribution Date pursuant to Section 4.01(b), Section 4.01(d) or Section 9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest.
On each Distribution Date, the Class R Certificates shall receive distributions of any amounts remaining in the Lower-Tier Distribution Account in respect of the Lower-Tier Residual Interest after all payments have been made to the Certificate Administrator on behalf of the Trustee as the holder of the Lower-Tier Regular Interests in accordance with this Section 4.01(a)(ii) and Section 4.01(c)(ii).
(b) On each Distribution Date, the Certificate Administrator shall withdraw from the Upper-Tier Distribution Account the amounts on deposit in the Upper-Tier Distribution Account in respect of interest, principal and reimbursement of Realized Losses, to the extent of Available Funds, and distribute such amounts to the Holders of each Class of Certificates (other than the Class Z Certificates) in the amounts and in the order of priority set forth below:
(i) to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-E, Class X-F and Class X-NR Certificates, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts for those Classes;
(ii) to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates in reduction of the Certificate Principal Balances thereof in the following priority:
(A) to the Holders of the Class A-SB Certificates, in an amount equal to the lesser of the Principal Distribution Amount for such Distribution Date and the amount necessary to reduce the aggregate Certificate Principal Balance of the Class A-SB Certificates to the Class A-SB Scheduled Principal Balance for such Distribution Date;
(B) to the Holders of the Class A-1 Certificates, in an amount equal to the Principal Distribution Amount for such Distribution Date remaining after
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payments pursuant to clause (A) above until the outstanding Certificate Principal Balance of the Class A-1 Certificates has been reduced to zero;
(C) to the Holders of the Class A-2 Certificates, in an amount equal to the Principal Distribution Amount for such Distribution Date remaining after payments pursuant to clauses (A) and (B) above until the outstanding Certificate Principal Balance of the Class A-2 Certificates has been reduced to zero;
(D) to the Holders of the Class A-3 Certificates, in an amount equal to the Principal Distribution Amount for such Distribution Date remaining after payments pursuant to clauses (A) through (C) above until the outstanding Certificate Principal Balance of the Class A-3 Certificates has been reduced to zero;
(E) to the Holders of the Class A-4 Certificates, in an amount equal to the Principal Distribution Amount for such Distribution Date remaining after payments pursuant to clauses (A) through (D) above until the outstanding Certificate Principal Balance of the Class A-4 Certificates has been reduced to zero; and
(F) to the Holders of the Class A-SB Certificates, in an amount equal to the Principal Distribution Amount for such Distribution Date remaining after payments pursuant to clauses (A) through (E) above until the outstanding Certificate Principal Balance of the Class A-SB Certificates has been reduced to zero;
(iii) to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates, up to an amount equal to, and pro rata based upon, the aggregate unreimbursed Realized Losses previously allocated to each such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(iv) to the Holders of the Class A-S Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
(v) to the Holders of the Class A-S Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(vi) to the Holders of the Class A-S Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(vii) to the Holders of the Class B Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
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(viii) to the Holders of the Class B Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(ix) to the Holders of the Class B Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class
(x) to the Holders of the Class C Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
(xi) to the Holders of the Class C Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(xii) to the Holders of the Class C Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(xiii) to the Holders of the Class D and Class X-D Certificates, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts for each such Class;
(xiv) to the Holders of the Class D Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(xv) to the Holders of the Class D Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(xvi) to the Holders of the Class E Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
(xvii) to the Holders of the Class E Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
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(xviii) to the Holders of the Class E Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(xix) to the Holders of the Class F Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
(xx) to the Holders of the Class F Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(xxi) to the Holders of the Class F Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;
(xxii) to the Holders of the Class NR Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount for such Class;
(xxiii) to the Holders of the Class NR Certificates, in reduction of the Certificate Principal Balance thereof, up to an amount equal to the Principal Distribution Amount for such Distribution Date less the portion of such Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Principal Balance thereof is reduced to zero;
(xxiv) to the Holders of the Class NR Certificates, up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, plus interest thereon at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class; and
(xxv) to the Holders of the Class R Certificates in respect of the Upper-Tier Residual Interest, any amounts remaining in the Upper-Tier Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on and after the Cross-Over Date, in place of the allocation of principal payments described in priority (ii) above, remaining Available Funds at such level shall be distributed up to an amount equal to the Principal Distribution Amount for such Distribution Date to the respective Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates, pro rata, based on their respective Certificate Principal Balances, in reduction of their respective Certificate Principal Balances (and the schedule for the Class A-SB principal distributions shall be disregarded). Any remaining Available Funds will then be allocated as provided in priorities (iii) through (xxv) above.
All distributions of interest made in respect of a Class of the Class X Certificates on any Distribution Date pursuant to clause (b)(i) above or Section 4.01(d), shall be deemed to
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have been made in respect of all the Components of such Class, pro rata in accordance with the respective amounts of interest that would be payable on such Components on such Distribution Date based on one-twelfth of the Class X Strip Rate of such Component multiplied by its respective Component Notional Amount, reduced by its share of any Excess Prepayment Interest Shortfall for such Distribution Date, together with any amounts thereof remaining unpaid from previous Distribution Dates.
(c) (i) On any Distribution Date, any Yield Maintenance Charge collected on the Mortgage Loans as of the related Determination Date shall be distributed to Holders of the Classes of Certificates as follows: (a) pro rata, between (i) the group (the “YM Group A”) of Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A and Class A-S Certificates, pro rata, and (ii) the group (the “YM Group B” and collectively with the YM Group A, the “YM Groups”) of Class X-B, Class X-D, Class B, Class C and Class D Certificates, based upon the aggregate amount of principal distributed to the Classes of Principal Balance Certificates in each YM Group on such Distribution Date; and (b) as among the respective Classes of Certificates in each YM Group in the following manner: (1) each Class of Principal Balance Certificates in such YM Group will be entitled to receive on each Distribution Date the portion of such Yield Maintenance Charge in an amount equal to the product of (x) a fraction whose numerator is the amount of principal distributed to such Class of Principal Balance Certificates on such Distribution Date and whose denominator is the total amount of principal distributed to all of the Principal Balance Certificates in such YM Group on such Distribution Date, (y) the Base Interest Fraction for the related Principal Prepayment with respect to such Class of Principal Balance Certificates, and (z) the aggregate amount of such Yield Maintenance Charge allocated to such YM Group and (2) the portion of such Yield Maintenance Charge allocated to such YM Group remaining after such distributions to the applicable Class(es) of Principal Balance Certificates, will be distributed to the Class of Class X Certificates in such YM Group, and in the case of the YM Group B, on a pro rata basis in accordance with their respective reductions in their Notional Amounts on such Distribution Date, to the Class X-B and Class X-D Certificates.
After the Distribution Date on which the Certificate Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C and Class D Certificates have been reduced to zero, all Yield Maintenance Charges collected with respect to the Mortgage Loans will be distributed pro rata to the Holders of the Class X-B Certificates, regardless of whether the notional amount of such Class of Certificates has been reduced to zero.
(ii) Any Yield Maintenance Charge that is to be distributed to the Regular Certificates on any Distribution Date shall be deemed distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Lower-Tier Regular Interests then receiving a principal distribution, pro rata, based on the respective amounts of those principal distributions.
(d) On each Distribution Date, the Certificate Administrator shall withdraw amounts from the Excess Liquidation Proceeds Reserve Account and shall distribute such amounts in the following priority:
(i) first, to the Holders of the Regular Certificates (in the same order as distributions are made pursuant to Section 4.01(b) of this Agreement) up to an amount
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equal to all amounts remaining due and payable on the Regular Certificates in accordance with Section 4.01(b) of this Agreement, and any Realized Loss allocable to such Certificates, after application of the Available Funds for such Distribution Date; and
(ii) second, to the Holders of the Class R Certificates, in accordance with the last sentence of Section 3.05(c) of this Agreement.
Amounts paid with respect to the Mortgage Loans from the Excess Liquidation Proceeds Reserve Account pursuant to the preceding clause (i) shall first be deemed to have been distributed to reimburse the Lower-Tier REMIC in respect of any Realized Losses or other shortfalls allocated to the Upper-Tier REMIC in respect of the Lower-Tier Regular Interests in reimbursement of Realized Losses previously allocated thereto and payment of other amounts due thereon.
(e) On each Distribution Date, following the deemed distributions of principal or in reimbursement of previously allocated Realized Losses made in respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a)(ii), the Lower-Tier Principal Balance of each Lower-Tier Regular Interest (after taking account of such deemed distributions) shall be reduced as a result of Realized Losses to equal the Certificate Principal Balance of the Class of Corresponding Certificates that will be outstanding immediately following such Distribution Date.
(f) The Certificate Principal Balance of each Class of Principal Balance Certificates will be reduced without distribution on any Distribution Date, as a write-off, to the extent of any Realized Loss allocated to such Class of Certificates on such Distribution Date. On each Distribution Date, any Realized Loss for such Distribution Date will be allocated to the following Classes of Regular Certificates in the following order, until the Certificate Principal Balance of each such Class of Certificates is reduced to zero; first, to the Class NR Certificates; second, to the Class F Certificates; third, to the Class E Certificates; fourth, to the Class D Certificates; fifth, to the Class C Certificates; sixth, to the Class B Certificates; seventh, to the Class A-S Certificates; and, finally, pro rata to the (i) Class A-1 Certificates, (ii) Class A-2 Certificates, (iii) Class A-3 Certificates, (iv) Class A-4 Certificates and (v) Class A-SB Certificates based on their respective Certificate Principal Balances. Any amounts recovered in respect of any amounts previously written off as Realized Losses will be distributed to the Classes of Certificates to which Realized Losses have been allocated in order of their seniority and shall be deemed to be distributed to the Corresponding Lower-Tier Regular Interests. Reimbursement of previously allocated Realized Losses will not constitute distributions of principal for any purpose and will not result in an additional reduction in the Certificate Principal Balance of the Class of Certificates in respect of which any such reimbursement is made. To the extent any Nonrecoverable Advances (plus interest thereon) that were reimbursed from principal collections on the Mortgage Loans (including REO Mortgage Loans) and previously resulted in a reduction of the Principal Distribution Amount are subsequently recovered on the related Mortgage Loan or REO Property, then (on the Distribution Date related to the Prepayment Period during which the recovery occurred) the amount of such recovery will be added to the Certificate Principal Balance of the Class or Classes of Regular Certificates (other than the Class X Certificates) that previously were allocated Realized Losses, in the same sequential order as distributions pursuant to Section 4.01(b) of this Agreement, in each case up to the lesser of the
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unallocated portion of such recovery and the amount of the unreimbursed Realized Losses previously allocated to the subject Class of Certificates, and the Interest Shortfall with respect to each affected Class of Regular Certificates for the next Distribution Date will be increased by the amount of interest that would have accrued through the then current Distribution Date if the restored write-down for such Class of Regular Certificates had never been written down (and, to the extent that the Certificate Principal Balance of, and any interest payable on, any Class of Regular Certificates is so increased, an identical increase shall be deemed made to the Lower-Tier Principal Balance of, and any interest payable on, the Corresponding Lower-Tier Regular Interest). If the Certificate Principal Balance of any Class of Regular Certificates (other than the Class X Certificates) (or the Lower-Tier Principal Balance of any Lower-Tier Regular Interest) is so increased, the amount of unreimbursed Realized Losses of such Class of Certificates (or such Lower-Tier Regular Interest, as the case may be) shall be decreased by such amount.
The Notional Amount of the Class X-A Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB and Class A-S Certificates resulting from allocations of Realized Losses. The Notional Amount of the Class X-B Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class B Certificates resulting from allocations of Realized Losses. The Notional Amount of the Class X-D Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class D Certificates resulting from allocations of Realized Losses. The Notional Amount of the Class X-E Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class E Certificates resulting from allocations of Realized Losses. The Notional Amount of the Class X-F Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class F Certificates resulting from allocations of Realized Losses. The Notional Amount of the Class X-NR Certificates will be reduced to reflect reductions of the Certificate Principal Balance of the Class NR Certificates resulting from allocations of Realized Losses.
(g) All amounts distributable, or reductions allocable on account of Realized Losses to a Class of Certificates pursuant to this Section 4.01 on each Distribution Date shall be allocated pro rata among the outstanding Certificates in each such Class based on their respective Percentage Interests. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five (5) Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution. The Certificate Administrator shall be responsible for making all distributions on the Certificates contemplated hereunder.
(h) Except as otherwise provided in Section 9.01 with respect to an Anticipated Termination Date, the Certificate Administrator shall, no later than the fifteenth day
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of the month preceding the month in which the final distribution with respect to any Class of Certificates is expected to be made (or, if the Certificate Administrator has not received notice of such Anticipated Termination Date by such time, promptly following the Certificate Administrator’s receipt of such notice), mail to each Holder of such Class of Certificates, on such date a notice to the effect that:
(i) the Certificate Administrator reasonably expects based upon information previously provided to it that the final distribution with respect to such Class of Certificates will be made on such Distribution Date, but only upon presentation and surrender of such Certificates at the office of the Certificate Administrator therein specified, and
(ii) if such final distribution is made on such Distribution Date, no interest shall accrue on such Class of Certificates, or on the Corresponding Lower-Tier Regular Interest, from and after such Distribution Date;
provided, however, that the Class R Certificates shall remain outstanding until there is no other Class of Certificates outstanding.
Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section 4.01(h) shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation to receive the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders to the extent permitted by law, until the earlier of (i) its termination as Certificate Administrator hereunder and the transfer of such amounts to a successor Certificate Administrator and (ii) the termination of the Trust Fund and distribution of such amounts to the Class R Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held in trust hereunder or by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.01(h). Any funds not distributed on such Distribution Date shall be set aside and held uninvested in trust for the benefit of Certificateholders not presenting and surrendering their Certificates in the aforesaid manner.
(i) [Reserved]
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(j) The Excess Prepayment Interest Shortfall, if any, for each Distribution Date will be allocated among the various Classes of Regular Certificates, pro rata, based upon the respective Interest Accrual Amounts with respect to such Classes of Regular Certificates for such Distribution Date. The portion of any Excess Prepayment Interest Shortfall for any Distribution Date so allocable to a Class of Class X Certificates shall, in turn, be allocated among the various Components of such Class of Class X Certificates, pro rata, based upon the respective amounts of Accrued Component Interest with respect to such Components for such Distribution Date. The portion of any Excess Prepayment Interest Shortfall for any Distribution Date so allocated to any Class of Principal Balance Certificates or any Component of a Class of Class X Certificates shall be deemed to have first been allocated to the Corresponding Lower-Tier Regular Interest for such Class of Principal Balance Certificates or Component, as applicable.
(k) On each Distribution Date, any Excess Interest received during the related Prepayment Period with respect to the ARD Loans shall be distributed to the Holders of the Class Z Certificates from the Excess Interest Distribution Account.
Section 4.02 Statements to Certificateholders; Certain Reports by the Master Servicer and the Special Servicer.
(a) Based on information received from the Master Servicer and any other applicable Persons, on each Distribution Date, the Certificate Administrator shall provide or make available a report, including reports in substantially the form attached hereto as Exhibit D (the “Distribution Date Statement”), setting forth, among other things, the following information:
(A) the amount of distributions, if any, made on such Distribution Date to the holders of each Class of Principal Balance Certificates and applied to reduce the respective Certificate Principal Balance thereof;
(B) the amount of distributions, if any, made on such Distribution Date to the Holders of each Class of Certificates allocable to (A) Interest Distribution Amount, (B) Yield Maintenance Charges and (C) Excess Interest;
(C) the amount of any distributions made on such Distribution Date to the Holders of the Class R Certificates;
(D) the aggregate amount of outstanding P&I Advances with respect to each Mortgage Loan, as of the related Determination Date, and the total outstanding other or miscellaneous advances (excluding P&I Advances and tax and insurance advances) with respect to each Mortgage Loan, as of the related Determination Date;
(E) the aggregate amount of Servicing Fees retained by or paid to the Master Servicer and Special Servicing Compensation retained by or paid to the Special Servicer in respect of the related Collection Period, Prepayment Period or Interest Accrual Period, as applicable;
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(F) the aggregate Stated Principal Balance of the Mortgage Loans immediately before and after such Distribution Date and the percentage of the Cut-Off Date Principal Balance of the Mortgage Loans which remains outstanding immediately after such Distribution Date;
(G) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Loan Rate of the outstanding Mortgage Loans, at the close of business on the related Determination Date;
(H) as of the Determination Date, the number and aggregate unpaid principal balance of Mortgage Loans (A) delinquent one month, (B) delinquent two months, (C) delinquent three or more months, (D) that are Specially Serviced Loans but are not delinquent or (E) as to which foreclosure proceedings have been commenced;
(I) the aggregate Stated Principal Balance of Mortgage Loans as to which the related Mortgagor is subject or is expected to be subject to a bankruptcy proceeding;
(J) with respect to any Mortgage Loan as to which the related Mortgaged Property became an REO Property (including with respect to the Non-Serviced Mortgage Loans) during the related Prepayment Period, the Stated Principal Balance and unpaid principal balance of such Mortgage Loan as of the date such Mortgaged Property became an REO Property and the most recently determined Appraised Value and date upon which the Appraisal was performed;
(K) as to any Mortgage Loan repurchased, substituted for or otherwise liquidated or disposed of during the related Prepayment Period, the Loan Number thereof and the amount of any Liquidation Proceeds and/or other amounts, if any, received thereon during the related Prepayment Period and the portion thereof included in the Available Funds for such Distribution Date;
(L) with respect to any REO Property (including with respect to the Non-Serviced Mortgage Loans) included in the Trust Fund as of the close of business on the last day of the related Prepayment Period, the Loan Number of the related Mortgage Loan, the book value of such REO Property and the amount of any income collected with respect to such REO Property (net of related expenses) and other amounts, if any, received on such REO Property during the related Prepayment Period and the portion thereof included in the Available Funds for such Distribution Date and the most recently determined Appraised Value and date upon which the Appraisal was performed;
(M) with respect to any REO Property (including with respect to the Non-Serviced Mortgage Loans) sold or otherwise disposed of during the related Prepayment Period, the Loan Number of the related Mortgage Loan, and the amount of Liquidation Proceeds and other amounts, if any, received in respect of
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such REO Property during the related Prepayment Period, the portion thereof included in the Available Funds for such Distribution Date and the balance of the Excess Liquidation Proceeds Reserve Account for such Distribution Date;
(N) the Interest Distribution Amount in respect of each Class of Regular Certificates for such Distribution Date;
(O) any unpaid Interest Distribution Amount in respect of each Class of Regular Certificates after giving effect to the distributions made on such Distribution Date;
(P) the Pass-Through Rate for each Class of Regular Certificates for such Distribution Date;
(Q) the original Certificate Principal Balance or Notional Amount as of the Closing Date and the Certificate Principal Balance or Notional Amount, as the case may be, of each Class of Regular Certificates immediately before and immediately after such Distribution Date, separately identifying any reduction in the Certificate Principal Balance or Notional Amount, as the case may be, of each such Class due to Realized Losses;
(R) the Certificate Factor for each Class of Regular Certificates immediately following such Distribution Date;
(S) the Principal Distribution Amount for such Distribution Date;
(T) the aggregate amount of Principal Prepayments made during the related Prepayment Period, and the aggregate amount of any Prepayment Interest Excesses received and Prepayment Interest Shortfalls incurred in connection therewith;
(U) the aggregate amount of Realized Losses and Additional Trust Fund Expenses, if any, incurred with respect to the Trust Fund during the related Prepayment Period, and any Realized Loss for such Distribution Date;
(V) any Appraisal Reduction Amounts on a loan-by-loan basis, and the total Appraisal Reduction Amounts, as of the related Determination Date;
(W) identification of any material modification, extension or waiver of a Mortgage Loan;
(X) identification of any material breach of the representations and warranties given with respect to a Mortgage Loan by the applicable Mortgage Loan Seller;
(Y) the identity of the Operating Advisor;
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(Z) the amount of the Operating Advisor Fee, the Trustee/Certificate Administrator Fee and the CREFC® Intellectual Property Royalty License Fee paid with respect to such Distribution Date;
(AA) an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period;
(BB) the identity of the Controlling Class;
(CC) the identity of the Controlling Class Representative; and
(DD) such additional information as contemplated by Exhibit D to this Agreement.
In the case of information furnished pursuant to subclauses (A), (B), (C) and (Q) above, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per single Certificate of a specified minimum denomination. The form of any Distribution Date Statement may change over time.
On each Distribution Date, the Certificate Administrator shall make available via the Certificate Administrator’s Website to each Holder of a Class R Certificate a copy of the reports made available to the other Certificateholders on such Distribution Date and a statement setting forth the amounts, if any, actually distributed with respect to the Class R Certificates in respect of the related Trust REMIC on such Distribution Date. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that it provided substantially comparable information pursuant to any requirements of the Code as from time to time in force. Absent manifest error, none of the Master Servicer or the Special Servicer shall be responsible for the accuracy or completeness of any information supplied to it by a Mortgagor or any Mortgage Loan Seller (including the information in the Prospectus Supplement) or any other third party that is included in any reports, statements, materials or information prepared or provided by the Master Servicer or the Special Servicer, as applicable.
The Certificate Administrator shall promptly make available (and, in the case of the Commission EDGAR filings referred to below, as soon as reasonably practicable after such material is electronically filed with, or furnished to, the Commission) via the Certificate Administrator’s Website, to any Privileged Person (or, in the case of item (vi) below, solely to Certificateholders and Beneficial Owners and provided that the Prospectus Supplement, Distribution Date Statements, this Agreement, the Loan Purchase Agreements and the Commission EDGAR filings referred to below (collectively, the “Public Documents”) will be made available to the general public), the following items:
(i) the following “deal documents”:
(A) the Prospectus and the Prospectus Supplement;
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(B) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date (if any), the Loan Purchase Agreements and any amendments and exhibits hereto or thereto; and
(C) CREFC® Loan Setup File delivered to the Certificate Administrator by the Master Servicer;
(ii) the following “Commission EDGAR filings”:
(A) any reports on Forms 10-D, 10-K and 8-K that have been filed by the Certificate Administrator with respect to the Trust through the EDGAR system;
(iii) the following “periodic reports”:
(A) the Distribution Date Statements;
(B) the supplemental reports and the CREFC® data files identified as such in the definition of “CREFC® Investor Reporting Package (IRP)” (other than the CREFC® Loan Setup File), to the extent it has received or prepared such report or file; and
(C) all Operating Advisor Annual Reports;
(iv) the following “additional documents”:
(A) the summary of any Final Asset Status Report, with respect to each Mortgage Loan, delivered to the Certificate Administrator in electronic format pursuant to Section 3.21 of this Agreement; and
(B) any other Third Party Reports (or updates thereto) delivered to the Certificate Administrator in electronic format;
(v) the following “special notices”:
(A) all Special Notices;
(B) notice of any request by the Holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer or notice of any request by the Holders of Non-Reduced Certificates evidencing at least 15% of the Voting Rights of the Non-Reduced Certificates to terminate and replace the Operating Advisor.
(C) notice of any waiver, modification or amendment of any term of any Mortgage Loan;
(D) notice of final payment on the Certificates;
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(E) all notices of the occurrence of any Servicer Termination Events received by the Certificate Administrator;
(F) notice of termination or resignation of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee);
(G) any and all officer’s certificates and other evidence delivered to the Certificate Administrator to support any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(H) any notice of the termination of the Trust;
(I) any notice of the occurrence and continuance of a Control Termination Event;
(J) any notice of the occurrence and continuance of a Consultation Termination Event;
(K) the annual assessments as to compliance (in the case of the Master Servicer and the Special Servicer) and the officer’s certificates delivered by the Master Servicer and the Special Servicer to the Certificate Administrator since the Closing Date pursuant to Section 10.08 of this Agreement; and
(L) the annual independent public accountants’ servicing report caused to be delivered by the Master Servicer and the Special Servicer to the Certificate Administrator since the Closing Date pursuant to Section 10.09 of this Agreement;
(vi) the Investor Q&A Forum; and
(vii) solely to Certificateholders and Beneficial Owners, the Investor Registry.
(b) The Certificate Administrator makes no representations or warranties as to the accuracy or completeness of information provided pursuant to this Section and assumes no responsibility therefor. In addition, the Certificate Administrator disclaims responsibility for any information distributed by the Certificate Administrator for which it is not the original source. The Certificate Administrator shall have no obligation to recompute, recalculate or otherwise verify any information provided to it by the Master Servicer or the Special Servicer. In connection with providing access to the Certificate Administrator’s internet website, the Certificate Administrator may require registration and acceptance of a disclaimer and may require a recipient of any of the information set forth above (other than the Public Documents) to execute a confidentiality agreement (which may be in the form of a web page “click-through”). The Certificate Administrator shall not be liable for the dissemination of information in accordance with this Agreement. The Certificate Administrator shall provide assistance in using the Certificate Administrator’s Website through the Certificate Administrator’s customer service desk at telephone number (866) 846-4526.
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The Certificate Administrator may provide such information through means other than (and in lieu of) the Certificate Administrator’s Website; provided that (i) the Depositor shall have consented to such alternative means and (ii) Certificateholders and each of the Companion Loan Holders shall have received notice of such alternative means (which notice may be given via the Certificate Administrator’s Website).
Any Person that is a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of the foregoing, or an agent of any Mortgagor shall be entitled to access only the Prospectus Supplement, Distribution Date Statements, this Agreement, the Loan Purchase Agreements and the Commission EDGAR filings on the Certificate Administrator’s Website which are being made available to the general public. The provisions in this Section shall not limit the Master Servicer’s ability to make accessible certain information regarding the Mortgage Loans at a website maintained by the Master Servicer.
Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate a statement containing the information as to the applicable Class set forth in clauses (A), (B) and (C) of the description of Distribution Date Statements above aggregated for such calendar year or applicable portion thereof during which such person was a Certificateholder, together with such other information as the Certificate Administrator determines to be necessary to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.
The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where Certificateholders and Beneficial Owners may (i)(a) submit questions to the Certificate Administrator relating to the Distribution Date Statement, (b) submit questions to the Master Servicer or the Special Servicer, as applicable, relating to the servicing reports prepared by that party and being made available pursuant to this Section 4.02(a), the Mortgage Loans (or Serviced Whole Loans) or the Mortgaged Properties and (c) submit questions to the Operating Advisor relating to the Operating Advisor Annual Reports or actions by the Master Servicer or the Special Servicer as to which the Operating Advisor has consultation rights, whether or not referenced in any Operating Advisor Annual Report (collectively, “Inquiries”), and (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the Operating Advisor, the Master Servicer or the Special Servicer, the Certificate Administrator shall forward the Inquiry to the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof.
Within a commercially reasonable time following receipt of an Inquiry, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Operating Advisor, the Master Servicer or Special Servicer shall be by e-mail to the Certificate Administrator. The Certificate Administrator shall post (within a
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commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) any Inquiry is not of a type described above, (ii) answering any Inquiry (A) would not be in the best interests of the Trust and/or the Certificateholders, (B) would be in violation of applicable law, this Agreement or the applicable Mortgage Loan Documents, (C) would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, or (D) would reasonably be expected to result in the waiver of an attorney client privilege or the disclosure of attorney work product or (iii) it is otherwise, for any reason, not advisable to answer, it shall not be required to answer such Inquiry and, in the case of the Operating Advisor, the Master Servicer or the Special Servicer, shall promptly notify the Certificate Administrator. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. The Investor Q&A Forum will not reflect questions, answers and other communications which are not submitted via the Certificate Administrator’s Website. Answers posted on the Investor Q&A Forum shall be attributable only to the respondent, and no other Person will certify as to the accuracy, or will have any responsibility or liability for the content of any such information. No party to this Agreement shall disclose Privileged Information in the Investor Q&A Forum.
The Certificate Administrator shall make available to any Certificateholder and Beneficial Owner that is a Privileged Person, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Beneficial Owners can register and thereafter obtain information with respect to any other Certificateholder or Beneficial Owner that has so registered. Any person registering to use the Investor Registry will be required to certify that (a) it is a Certificateholder or a Beneficial Owner and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least 45 days from the date of such certification to other registered Certificateholders and registered Beneficial Owners. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and e-mail address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Beneficial Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within 45 days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.
Notwithstanding the foregoing, in no event shall any provision of this Agreement be construed to require the Master Servicer, the Special Servicer or the Certificate Administrator to produce any ad hoc or non-standard written reports (in addition to the CREFC® reports, inspection reports, reports required under each Co-Lender Agreement and other specific periodic reports otherwise required). If the Master Servicer, the Special Servicer or the Certificate
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Administrator elects to provide any ad hoc or non-standard reports, it may require the Person requesting such report to pay a reasonable fee to cover the costs of the preparation thereof.
Upon filing with the IRS, the Certificate Administrator shall furnish to the Holders of the Class R Certificates the IRS Form 1066 for each Trust REMIC and shall furnish their respective Schedules Q thereto at the times required by the Code or the IRS, and shall provide from time to time such information and computations with respect to the entries on such forms as any Holder of the Class R Certificates may reasonably request.
The specification of information to be furnished by the Certificate Administrator in this Section 4.02 (and any other terms of this Agreement requiring or calling for delivery or reporting of information by the Certificate Administrator to Certificateholders and Beneficial Owners) shall not limit the Certificate Administrator in furnishing, and the Certificate Administrator is hereby authorized to furnish, to any Privileged Person any other information (such other information, collectively, “Additional Information”) with respect to the Mortgage Loans or Serviced Whole Loans, the Mortgaged Properties or the Trust Fund as may be provided to it by the Depositor, the Master Servicer or the Special Servicer or gathered by it in any investigation or other manner from time to time, provided that (A) while there exists any Servicer Termination Event, any such Additional Information shall only be furnished with the consent or at the request of the Depositor (except pursuant to clause (E) below or to the extent such information is requested by a Certifying Certificateholder), (B) the Certificate Administrator shall be entitled to indicate the source of all information furnished by it, and the Certificate Administrator may affix thereto any disclaimer it deems appropriate in its sole discretion (together with any warnings as to the confidential nature and/or the uses of such information as it may, in its sole discretion, determine appropriate), (C) the Certificate Administrator may notify any Privileged Person of the availability of any such information in any manner as it, in its sole discretion, may determine, (D) the Certificate Administrator shall be entitled (but not obligated) to require payment from each recipient of a reasonable fee for, and its out-of-pocket expenses incurred in connection with, the collection, assembly, reproduction or delivery of any such Additional Information, and (E) the Certificate Administrator shall be entitled to distribute or make available such Additional Information in accordance with such reasonable rules and procedures as it may deem necessary or appropriate (which may include the requirement that an agreement that provides such information shall be used solely for purposes of evaluating the investment characteristics or valuation of the Certificates be executed by the recipient, if and to the extent the Certificate Administrator deems the same to be necessary or appropriate). Nothing herein shall be construed to impose upon the Certificate Administrator any obligation or duty to furnish or distribute any Additional Information to any Person in any instance, and the Certificate Administrator shall neither have any liability for furnishing nor for refraining from furnishing Additional Information in any instance. The Certificate Administrator shall be entitled (but not required) to request and receive direction from the Depositor as to the manner of delivery of any such Additional Information, if and to the extent the Certificate Administrator deems necessary or advisable, and to require that any consent, direction or request given to it pursuant to this Section be made in writing.
The Depositor hereby authorizes the Certificate Administrator to, and the Certificate Administrator shall (to the extent received by the Certificate Administrator), make available to Bloomberg Financial Markets, L.P., Trepp, LLC, Intex Solutions, Inc., BlackRock
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Financial Management, Inc. or such other vendor chosen by the Depositor that submits to the Certificate Administrator a certification in the form of Exhibit M-3 to this Agreement, all the Distribution Date Statements, CREFC® reports and supplemental notices delivered or made available pursuant to this Section 4.02(a) to Privileged Persons.
(c) No later than the Business Day prior to each Distribution Date, subject to the penultimate paragraph of this subsection (b), the Master Servicer shall deliver or cause to be delivered to the Certificate Administrator, the Operating Advisor, the Special Servicer and any Other Master Servicer in electronic form mutually acceptable to the Certificate Administrator, the Operating Advisor, the Special Servicer and the Master Servicer the following reports or information (and any other files as may be, or have been, adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (1) a CREFC® REO Status Report, (2) a CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (3) CREFC® Total Loan Report, (4) the CREFC® Servicer Watch List/Portfolio Review Guidelines, (5) the CREFC® Financial File, (6) the CREFC® Property File, (7) except for the first two Distribution Dates, the CREFC® Comparative Financial Status Report, (8) the CREFC® Loan Level Reserve/LOC Report, (9) the CREFC® Advance Recovery Report and (10) the CREFC® Delinquent Loan Status Report.
No later than the Business Day prior to each Distribution Date except for the first two Distribution Dates, the Master Servicer shall deliver to the Certificate Administrator and the Operating Advisor (by electronic means) the CREFC® Comparative Financial Status Report for each Mortgage Loan or related Mortgaged Property as of the Determination Date immediately preceding the preparation of such report for each of the following three periods (but only to the extent the related Mortgagor is required by the Mortgage to deliver and does deliver, or otherwise agrees to provide and does provide, such information): (a) the most current available year-to-date; (b) each of the previous two full fiscal years stated separately (to the extent such information is in the Master Servicer’s possession); and (c) the “base year” (representing the original analysis of information used as of the Cut-Off Date).
No later than 2:00 p.m., New York City time, on the second Business Day prior to each Distribution Date, the Master Servicer shall deliver to the Certificate Administrator and the Operating Advisor a CREFC® Loan Periodic Update File setting forth certain information with respect to the Mortgage Loans and Mortgaged Properties.
The Master Servicer shall provide to the Certificate Administrator and the Operating Advisor the CREFC® Loan Setup File within 60 days of the first Distribution Date hereunder to the extent it has received from the Mortgage Loan Sellers one or more spreadsheets (with the data fields filled) containing the data necessary for the completion of the aggregate pool-wide CREFC® Loan Setup File.
In addition, the Master Servicer (with respect to non-Specially Serviced Loans that are not Non-Serviced Mortgage Loans) or Special Servicer (with respect to Specially Serviced Loans that are not, and REO Properties that do not relate to, Non-Serviced Mortgage Loans), as applicable, shall prepare with respect to each Mortgaged Property and REO Property:
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Within 30 days after receipt of a quarterly operating statement, if any, commencing within 30 days of receipt of such quarterly operating statement for the quarter ending December 31, 2015, a CREFC® Operating Statement Analysis Report (but only to the extent the related Mortgagor is required by the Mortgage to deliver and does deliver, or otherwise agrees to provide and does provide, such information) for such Mortgaged Property or REO Property as of the end of that calendar quarter, provided, however, that any analysis or report with respect to the first calendar quarter of each year will not be required to the extent provided in the then-current applicable CREFC® guidelines (it being understood that as of the date of the Prospectus Supplement, the applicable CREFC® guidelines provide that such analysis or report with respect to the first calendar quarter (in each year) is not required for a Mortgaged Property unless such Mortgaged Property is analyzed on a trailing 12 month basis, or if the related Serviced Mortgage Loan is on the CREFC® Servicer Watch List). The Master Servicer (with respect to non-Specially Serviced Loans) or Special Servicer (with respect to Specially Serviced Loans and REO Properties, as applicable, shall deliver to the Certificate Administrator, the Operating Advisor and related Companion Loan Holders by electronic means the CREFC® Operating Statement Analysis Report upon request; and
Within thirty (30) days after receipt by the Special Servicer (with respect to Specially Serviced Loans and REO Properties) or the Master Servicer (with respect to non-Specially Serviced Loans) of an annual operating statement for each calendar year, commencing with the calendar year ending December 31, 2015, a CREFC® NOI Adjustment Worksheet (but only to the extent the related Mortgagor is required by the Mortgage to deliver and does deliver, or otherwise agrees to provide and does provide, such information), presenting the computation to “normalize” the full year net operating income and debt service coverage numbers used by the Master Servicer in preparing the CREFC® Comparative Financial Status Report above. The Special Servicer or the Master Servicer shall deliver to the Certificate Administrator, the Operating Advisor and related Serviced Companion Loan Holders by electronic means the CREFC® NOI Adjustment Worksheet upon request.
The Certificate Administrator shall deliver or shall cause to be delivered, upon request, to the Rule 17g-5 Information Provider (for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement), to each Certificateholder, to each party hereto, to any Underwriter and/or to any Initial Purchaser and to each Person that provides the Certificate Administrator with an Investor Certification a copy of the CREFC® Operating Statement Analysis Report and CREFC® NOI Adjustment Worksheet most recently performed by the Master Servicer with respect to any Mortgage Loan or Serviced Whole Loan and delivered to the Certificate Administrator.
Upon request (and in any event, not more frequently than once per month), the Master Servicer shall forward to the Certificate Administrator (as to the Collection Account), the Operating Advisor, any related Companion Loan Holder (as to the related Serviced Whole Loan Custodial Account) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider a statement, setting forth the status of the Collection Account and each Serviced Whole Loan Custodial Account as of the close of business on such Master Servicer Remittance Date, stating that all remittances to the Certificate Administrator required by this Agreement to be made by the Master Servicer have been made (or, in the case of any such required remittance that has not been made by the Master
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Servicer, specifying the nature and status thereof) and showing, for the period from the preceding Master Servicer Remittance Date (or, in the case of the first Master Servicer Remittance Date, from the Cut-Off Date) to such Master Servicer Remittance Date, the aggregate of deposits into and withdrawals from the Collection Account and each Serviced Whole Loan Custodial Account for each category of deposit specified in Section 3.05(a) and 3.05A of this Agreement and each category of withdrawal specified in Section 3.06 and 3.06A of this Agreement. The Master Servicer shall also deliver to the Certificate Administrator and (solely as to a Serviced Whole Loan) the related Companion Loan Holder, upon reasonable request of the Certificate Administrator or any Companion Loan Holder, any and all additional information relating to the Mortgage Loans or any Serviced Whole Loans in the possession of the Master Servicer (which information shall be based upon reports delivered to the Master Servicer by the Special Servicer with respect to Specially Serviced Loans and REO Properties).
Further, the Master Servicer shall cooperate with the Special Servicer and provide the Special Servicer with the information in the possession of the Master Servicer reasonably requested by the Special Servicer, in writing, to the extent required to allow the Special Servicer to perform its obligations under this Agreement with respect to those Mortgage Loans serviced by the Master Servicer.
The obligation of the Master Servicer to deliver the reports required to be delivered by it pursuant to this subsection is subject to the Master Servicer having received from the Special Servicer in a timely manner the related reports and information in the possession of the Special Servicer necessary or required to enable the Master Servicer to prepare and deliver such reports. The Master Servicer shall not be responsible for the accuracy or content of any report, document or information furnished by the Special Servicer to the Master Servicer pursuant to this Agreement and accepted by the Master Servicer in good faith pursuant to this Agreement.
The obligation of the Special Servicer to deliver the reports required to be delivered by it pursuant to this subsection is subject to the Special Servicer having received from the Master Servicer in a timely manner the related reports and information in the possession of the Master Servicer necessary or required to enable the Special Servicer to prepare and deliver such reports. The Special Servicer shall not be responsible for the accuracy or content of any report, document or information furnished by the Master Servicer to the Special Servicer pursuant to this Agreement and accepted by the Special Servicer in good faith pursuant to this Agreement.
With respect to a Non-Serviced Mortgage Loan, the Master Servicer shall deliver information comparable to the above-described information to the same Persons as described above in this Section 4.02(c) and according to the same time frames as described above in this Section 4.02(c), with reasonable promptness following such Master Servicer’s receipt of such information from the related Other Master Servicer under the applicable Other Pooling and Servicing Agreement.
(d) Not later than 5:00 p.m. New York time on each Determination Date, the Special Servicer shall forward to the Master Servicer, for each Specially Serviced Loan and REO Property, a CREFC® Special Servicer Loan File. The Special Servicer shall also deliver to the
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Certificate Administrator, upon the reasonable written request of the Certificate Administrator, any and all additional information in the possession of the Special Servicer relating to the Specially Serviced Loans and the REO Properties.
The Special Servicer shall cooperate with the Master Servicer and provide the Master Servicer with the information in the possession of the Special Servicer reasonably requested by the Master Servicer, in writing, to the extent required to allow the Master Servicer to perform its obligations under this Agreement with respect to the Specially Serviced Loans and REO Properties.
The Master Servicer may make available to Privileged Persons copies of any reports or files prepared by the Master Servicer pursuant to this Agreement. The Master Servicer may make information concerning the Mortgage Loans or Whole Loans available on any website that it has established. With respect to a Non-Serviced Mortgage Loan, the Master Servicer shall deliver information comparable to the above-described information to the extent received from the related Other Master Servicer or the related Other Special Servicer, as applicable, to the same Persons as described above in this Section 4.02(d) and according to the same time frames as described above in this Section 4.02(d), with reasonable promptness following such Master Servicer’s receipt of such information from the related Other Master Servicer under the applicable Other Pooling and Servicing Agreement.
(e) The Master Servicer shall withdraw from the Collection Account and pay the CREFC® Intellectual Property Royalty License Fee to CREFC® in accordance with Section 3.06(a)(vi) on a monthly basis, from funds on deposit in the Collection Account.
Section 4.03 Compliance with Withholding Requirements.
(a) Notwithstanding any other provision of this Agreement, the Paying Agent shall comply with all federal withholding requirements with respect to payments to Certificateholders and other payees of interest or original issue discount that the Paying Agent reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for any such withholding. In the event the Paying Agent or its agent withholds any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Paying Agent shall indicate the amount withheld to such Certificateholder or payee. Any amount so withheld shall be treated as having been distributed to such Person for all purposes of this Agreement.
(b) Each Beneficial Owner and Certificateholder, by the purchase of a Certificate or its acceptance of a beneficial interest therein, acknowledges that interest on the Certificates will be treated as United States source interest, and, as such, United States withholding tax may apply. Each such Beneficial Owner and Certificateholder further agrees, upon request, to provide any certifications that may be required under applicable law, regulations or procedures to evidence its status for United States withholding tax purposes and understands that if it ceases to satisfy the foregoing requirements or provide requested documentation, payments to it under the Certificates may be subject to United States withholding tax (without any corresponding gross-up). Without limiting the foregoing, if a payment made under this Agreement would be subject to United States federal withholding tax imposed by FATCA if the
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recipient of such payment were to fail to comply with FATCA (including the requirements of Code Sections 1471(b) or 1472(b), as applicable), such recipient shall deliver to the Paying Agent, with a copy to each of the Trustee and the Certificate Administrator, at the time or times prescribed by the Code and at such time or times reasonably requested by the Paying Agent or the Trustee, such documentation prescribed by the Code (including as prescribed by Code Section 1471(b)(3)(C)(i)) and such additional documentation reasonably requested by the Paying Agent, the Trustee or the Certificate Administrator to comply with their respective obligations under FATCA, to determine that such recipient has complied with such recipient’s obligations under FATCA, or to determine the amount to deduct and withhold from such payment.
Section 4.04 REMIC Compliance.
(a) The parties intend that each Trust REMIC shall constitute, and that the affairs of each Trust REMIC shall be conducted so as to qualify it as, a “real estate mortgage investment conduit” as defined in, and in accordance with, the REMIC Provisions, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, the Certificate Administrator shall, to the extent permitted by applicable law, act as agent, and is hereby appointed to act as agent, of each Trust REMIC and shall on behalf of each Trust REMIC: (i) prepare, timely deliver to the Trustee for execution (and the Trustee shall timely execute) and file, or cause to be prepared and filed, all required Tax Returns for each Trust REMIC, using a calendar year as the taxable year for each Trust REMIC when and as required by the REMIC Provisions and other applicable federal, state or local income tax laws; (ii) make an election, on behalf of each Trust REMIC, to be treated as a REMIC on IRS Form 1066 for its first taxable year ending December 31, 2015, in accordance with the REMIC Provisions; (iii) prepare and forward, or cause to be prepared and forwarded, to the Certificateholders (other than the Holders of the Class Z Certificates) and the IRS and applicable state and local tax authorities all information reports as and when required to be provided to them in accordance with the REMIC Provisions of the Code; (iv) if the filing or distribution of any documents of an administrative nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is then required by the REMIC Provisions in order to maintain the status of each Trust REMIC as a REMIC or is otherwise required by the Code, prepare, sign and file or distribute, or cause to be prepared and signed and filed or distributed, such documents with or to such Persons when and as required by the REMIC Provisions or the Code or comparable provisions of state and local law; (v) obtain a taxpayer identification number for the Upper-Tier REMIC and Lower-Tier REMIC on IRS Form SS-4 and, within thirty days of the Closing Date, furnish or cause to be furnished to the IRS, on IRS Form 8811 or as otherwise may be required by the Code, the name, title and address of the Person that the holders of the Certificates may contact for tax information relating thereto (and the Certificate Administrator shall act as the representative of each Trust REMIC for this purpose), together with such additional information as may be required by such IRS Form, and shall update such information at the time or times and in the manner required by the Code (and the Depositor agrees within 10 Business Days of the Closing Date to provide any information reasonably requested by the Master Servicer or the Certificate Administrator and necessary to make such filing); and (vi) maintain such records relating to each Trust REMIC as may be necessary to prepare the foregoing returns, schedules, statements or information, such records, for federal income tax purposes, to be maintained on a calendar year and on an accrual basis.
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The Holder of the largest Percentage Interest in the Class R Certificates shall be the tax matters person of each Trust REMIC pursuant to Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in the Class R Certificates larger than that held by any other Holder, the first such Holder to have acquired such Class R Certificates shall be such tax matters person. The Certificate Administrator shall act as attorney-in-fact and agent for the tax matters person of each Trust REMIC, and each Holder of a Percentage Interest in the Class R Certificates, by acceptance hereof, is deemed to have consented to the Certificate Administrator’s appointment in such capacity and agrees to execute any documents required to give effect thereto, and any fees and expenses incurred by the Certificate Administrator in connection with any audit or administrative or judicial proceeding shall be paid by the Trust Fund.
The Certificate Administrator shall not intentionally take any action or intentionally omit to take any action within its control and the scope of its duties if, in taking or omitting to take such action, the Certificate Administrator knows that such action or omission (as the case may be) would cause the termination of the REMIC status of either Trust REMIC or the imposition of tax on either Trust REMIC (other than a tax on income expressly permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph or the three preceding paragraphs to the contrary, the Certificate Administrator shall not be required to take any action that the Certificate Administrator in good faith believes to be inconsistent with any other provision of this Agreement, nor shall the Certificate Administrator be deemed in violation of this paragraph if it takes any action expressly required or authorized by any other provision of this Agreement, and the Certificate Administrator shall have no responsibility or liability with respect to any act or omission of the Depositor or the Master Servicer which does not enable the Certificate Administrator to comply with any of clauses (i) through (vi) of the third preceding paragraph or which results in any action contemplated by clauses (i) through (iii) of the next succeeding sentence. In this regard the Certificate Administrator shall (i) not allow the occurrence of any “prohibited transactions” within the meaning of Code Section 860F(a), unless the party seeking such action shall have delivered to the Certificate Administrator an Opinion of Counsel (at such party’s expense) that such occurrence would not (a) result in a taxable gain, (b) otherwise subject either Trust REMIC to tax (other than a tax at the highest marginal corporate tax rate on net income from foreclosure property), or (c) cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes; (ii) not allow either Trust REMIC to receive income from the performance of services or from assets not permitted under the REMIC Provisions to be held by such Trust REMIC (provided, however, that the receipt of any income expressly permitted or contemplated by the terms of this Agreement shall not be deemed to violate this clause); and (iii) not permit the creation of any “interests,” within the meaning of the REMIC Provisions, in the Upper-Tier REMIC other than the Regular Certificates and the Upper-Tier Residual Interest, or in the Lower-Tier REMIC other than the Lower-Tier Regular Interests and the Lower-Tier Residual Interest. None of the Trustee, the Master Servicer, the Special Servicer or the Depositor shall be responsible or liable for any failure by the Certificate Administrator to comply with the provisions of this Section 4.04. The Depositor, the Master Servicer and the Special Servicer shall cooperate in a timely manner with the Certificate Administrator in supplying any information within the Depositor’s, the Master Servicer’s or the
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Special Servicer’s control (other than any confidential information) that is reasonably necessary to enable the Certificate Administrator to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining the anticipated payments of principal and interest for calculating the original yield to maturity and original issue discount with respect to the Regular Certificates: (i) each Mortgage Loan will pay principal and interest in accordance with its terms and scheduled payments will be timely received on their Due Dates, provided that the Mortgage Loans in the aggregate will prepay in accordance with the Prepayment Assumption; (ii) none of the Master Servicer, the Special Servicer, the Depositor and the Class R Certificateholder will exercise the right described in Section 9.01 of this Agreement to cause early termination of the Trust Fund; and (iii) no Mortgage Loan is repurchased or substituted for by the applicable Mortgage Loan Seller pursuant to Article II of this Agreement.
Section 4.05 Imposition of Tax on the Trust REMICs. In the event that any tax, including interest, penalties or assessments, additional amounts or additions to tax, is imposed on either Trust REMIC, such tax shall be charged against amounts otherwise distributable to Certificateholders; provided that any taxes imposed on any net income from foreclosure property pursuant to Code Section 860G(d) or any similar tax imposed by a state or local jurisdiction shall instead be treated as an expense of the related REO Property in determining Net REO Proceeds with respect to the REO Property (and until such taxes are paid, the Special Servicer from time to time shall withdraw from the REO Account and transfer to the Certificate Administrator for deposit into the Distribution Accounts amounts reasonably determined by the Certificate Administrator to be necessary to pay such taxes, and the Certificate Administrator shall return to the Special Servicer the excess determined by the Certificate Administrator from time to time of the amount in excess of the amount necessary to pay such taxes); provided that any such tax imposed on net income from foreclosure property that exceeds the amount in any such reserve shall be retained from Available Funds as provided in Section 3.06(a)(vii) of this Agreement and the next sentence. Except as provided in the preceding sentence, the Certificate Administrator is hereby authorized to and shall retain or cause to be retained from the Distribution Account in determining the amount of Available Funds sufficient funds to pay or provide for the payment of, and to actually pay, such tax as is legally owed by either Trust REMIC (but such authorization shall not prevent the Certificate Administrator from contesting, at the expense of the Trust Fund, any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Certificate Administrator is hereby authorized to and shall segregate or cause to be segregated, into a separate non-interest bearing account, (i) the net income from any “prohibited transaction” under Code Section 860F(a) or (ii) the amount of any contribution to either Trust REMIC after the Startup Day that is subject to tax under Code Section 860G(d) and use such income or amount, to the extent necessary, to pay such tax (and return the balance thereof, if any, to the related Distribution Account). To the extent that any such tax is paid to the IRS, the Certificate Administrator shall retain an equal amount from future amounts otherwise distributable to the Holders of the Class R Certificates in respect of the related residual interest and shall distribute such retained amounts to the Holders of Regular Certificates or to the Certificate Administrator in respect of the Lower-Tier Regular Interests until they are fully reimbursed and then to the Holders of the Class R Certificates in respect of the related residual interest. None of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee shall be responsible for any taxes imposed on either
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Trust REMIC except to the extent such tax is attributable to a breach of a representation or warranty of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee or an act or omission of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee in contravention of this Agreement in both cases, provided, further, that such breach, act or omission could result in liability under Section 6.03, in the case of the Master Servicer or the Special Servicer, as applicable, or Section 4.04 or 8.01, in the case of the Certificate Administrator or the Trustee. Notwithstanding anything in this Agreement to the contrary, in each such case, the Master Servicer or the Special Servicer shall not be responsible for the Certificate Administrator’s, the Authenticating Agent’s, the Certificate Registrar’s, the Paying Agent’s or the Trustee’s breaches, acts or omissions, and the Trustee shall not be responsible for the breaches, acts or omissions of the Certificate Administrator, the Master Servicer, the Special Servicer, the Authenticating Agent, the Certificate Registrar or the Paying Agent, and the Certificate Administrator shall not be responsible for the breaches, acts or omissions of the Trustee, the Master Servicer, the Special Servicer and, in each case if a different entity than the Certificate Administrator, the Authenticating Agent, the Certificate Registrar or the Paying Agent.
Section 4.06 Remittances; P&I Advances.
(a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of a Non-Serviced Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Whole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the immediately preceding Due Date (without regard to any grace period) (and which delinquent payment has not been cured as of the Business Day immediately preceding such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage
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Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(x) of this Agreement.
Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges or delinquent monthly payments on any Companion Loan. The amount of interest required to be advanced in respect of payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (x) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payment of interest without giving effect to such Appraisal Reduction Amounts, and (y) a fraction, the numerator of which is the Appraisal Reduction Amount with respect to such Mortgage Loan and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances.
To the extent required under the related Co-Lender Agreement, if a P&I Advance is made with respect to any Mortgage Loan with a related Serviced Companion Loan, the Master Servicer or Trustee shall notify the Other Master Servicer and the Other Trustee of the amount of P&I Advance made with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance.
Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance.
The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer.
Neither the Master Servicer nor the Trustee shall be permitted to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee
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determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information for such purposes.
The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable P&I Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a P&I Advance constitutes or would constitute a Nonrecoverable Advance. If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance.
The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan.
With respect to P&I Advances and each Non-Serviced Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Other Special Servicer or the related Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
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(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve (12) months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
With respect to each Whole Loan, if the Master Servicer, Special Servicer or Trustee has determined that a P&I Advance with respect to such Mortgage Loan, would be or has become a Nonrecoverable Advance, the Master Servicer shall provide each Other Master Servicer, Other Special Servicer and Other Trustee written notice of such determination together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability within the time period required by the related Co-Lender Agreement.
(c) With respect to each Non-Serviced Mortgage Loan, if (1) the related Other Master Servicer has determined that a proposed P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to a Non-Serviced Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or is, as applicable, a “nonrecoverable advance,” and the related Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to a Non-Serviced Mortgage Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Non-Serviced Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future P&I Advance would not be a “nonrecoverable advance.”
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In connection with any Non-Serviced Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Non-Serviced Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance may be made independently from any determinations (or the absence of any determinations) made by the related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Moody’s, Fitch, KBRA or Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Moody’s, Fitch, KBRA or Morningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the applicable Companion Loan Holder and the applicable master servicer of any Companion Loan.
Section 4.07 Grantor Trust Reporting.
(a) The Certificate Administrator shall maintain adequate books and records to account for the separate entitlements of the Grantor Trust.
(b) The parties intend that the Grantor Trust shall be treated as a “grantor trust” under the Code, and the provisions thereof shall be interpreted consistently with this intention. In furtherance of such intention, none of the Depositor, the Master Servicer, the Special Servicers, the Trustee or the Certificate Administrator shall vary the assets of the Grantor Trust so as to take advantage of market fluctuations or so as to improve the rate of return of the Class Z Certificates, and shall otherwise comply with Treasury Regulations Section 301.7701-4(c). Within 30 days of the Closing Date, the Certificate Administrator shall obtain a taxpayer identification number for the Grantor Trust on IRS Form SS-4. The Certificate Administrator shall file or cause to be filed with the IRS Form 1041, Form 1099 or such other form as may be applicable and shall furnish or cause to be furnished to the Holders of the Class Z Certificates, the Excess Interest and the Excess Interest Distribution Account and proceeds thereof, as such amounts are received or accrue, as applicable.
(c) (i) The Grantor Trust is a WHFIT that is a WHMT. The Certificate Administrator shall report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Certificate Administrator to do so is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that DTC is the only “middleman” as defined by the WHFIT Regulations unless it has actual knowledge to the contrary or the Depositor provides the Certificate Administrator with the identities of the other “middlemen” that are Certificateholders. The Certificate Administrator will not be liable for any tax reporting penalties that may arise under the WHFIT Regulations in the event that the IRS makes a determination that is contrary to the first sentence of this paragraph.
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(ii) The Certificate Administrator, in its discretion, shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available (via the Certificate Administrator’s Website) WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.
(iii) The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Certificate Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each owner of a class of securities representing, in whole or in part, beneficial ownership of an interest in a WHFIT, by acceptance of its interest in such class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of Certificates, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.
(d) To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on the Certificate Administrator’s Website the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so published will represent the Rule 144A CUSIPs. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent CUSIPs have been received. Absent the receipt of a CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.
ARTICLE
V
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates consist of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class A-SB Certificates, the Class X-A Certificates, the Class X-B Certificates, the Class X-D Certificates, the Class X-E Certificates, the Class X-F Certificates, the Class X-NR Certificates, the Class A-S Certificates, the Class B Certificates, the Class C Certificates, the Class D Certificates, the Class E Certificates, the Class F Certificates, the Class NR Certificates, the Class Z Certificates and the Class R Certificates.
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Each Class of Certificates will be substantially in the forms annexed hereto as Exhibits A-1 through A-12 respectively with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may, in the reasonable judgment of the Certificate Registrar, be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required by law, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof.
(a) The Public Certificates (other than the Class X-A and Class X-B Certificates) shall be issued in minimum denominations of $10,000 and integral multiples of $1 in excess thereof. The Private Certificates (other than the Class X-D, Class X-E, Class X-F, Class X-NR, Class Z and Class R Certificates) shall be issued in minimum denominations of $100,000 and integral multiples of $1 in excess thereof. The Class X-A, Class X-B, Class X-D, Class X-E, Class X-F and Class X-NR Certificates shall be issued, maintained and transferred only in minimum denominations of authorized initial notional amounts of not less than $1,000,000 and in integral multiples of $1 in excess thereof. If the initial Certificate Principal Balance or initial Notional Amount, as applicable, of any Class of Regular Certificates does not equal an integral multiple of $1, then a single additional Certificate of such Class may be issued in a minimum denomination of authorized initial Certificate Principal Balance or initial Notional Amount, as applicable, that includes the excess of (i) the initial Certificate Principal Balance or initial Notional Amount, as applicable, of such Class over (ii) the largest integral multiple of $1 that does not exceed such amount. The Class Z and Class R Certificates shall be issued, maintained and transferred in minimum percentage interests of 10% of such Class Z and Class R Certificates and in integral multiples of 1% in excess thereof.
(b) One authorized signatory shall sign the Certificates for the Certificate Administrator by manual or fax signature. If an authorized signatory whose signature is on a Certificate no longer holds that office at the time the Certificate Administrator countersigns the Certificate, the Certificate shall be valid nevertheless. A Certificate shall not be valid until an authorized signatory of the Certificate Administrator (who may be the same officer who executed the Certificate) manually countersigns the Certificate. The signature shall be conclusive evidence that the Certificate has been executed and countersigned under this Agreement.
Section 5.02 Form and Registration.
(a) Each Class of Public Certificates shall be represented by a single, global certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto, which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Principal Balance of a Global Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.
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(b) Unless and until Definitive Certificates are issued in respect of a Class of Global Certificates, beneficial ownership interests in such Certificates will be maintained and transferred on the book-entry records of the Depository and Depository Participants, and all references to actions by Holders of such Class of Certificates will refer to action taken by the Depository upon instructions received from the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures and, except as otherwise set forth herein, all references herein to payments, notices, reports and statements to Holders of such Class of Certificates will refer to payments, notices, reports and statements to the Depository or its nominee as the registered Holder thereof, for distribution to the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures.
(c) No transfer of any Private Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, then:
(i) The Certificates of each Class of the Private Certificates (other than the Class Z and Class R Certificates) sold in offshore transactions in reliance on Regulation S under the Securities Act shall initially be represented by a temporary global certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each a “Temporary Regulation S Global Certificate”), which shall be deposited on the Closing Date on behalf of the purchasers of the Private Certificates represented thereby with the Certificate Registrar, at its principal trust office, as custodian, for the Depository, and registered in the name of the Depository or the nominee of the Depository for the account of designated agents holding on behalf of Euroclear and/or Clearstream. Prior to the expiration of the 40-day period commencing on the later of the commencement of the offering and the Closing Date (the “Restricted Period”), beneficial interests in each Temporary Regulation S Global Certificate may be held only through Euroclear or Clearstream. After the expiration of the Restricted Period, a beneficial interest in a Temporary Regulation S Global Certificate may be exchanged for an interest in the related permanent global certificate of the same Class of Private Certificates (a “Regulation S Global Certificate”) in the applicable form set forth as an exhibit hereto in accordance with the procedures set forth in Section 5.03(f) of this Agreement. During the Restricted Period, distributions due in respect of a beneficial interest in a Temporary Regulation S Global Certificate shall only be made upon delivery to the Certificate Registrar by Euroclear or Clearstream, as applicable, of a Non-U.S. Beneficial Ownership Certification. After the expiration of the Restricted Period, distributions due in respect of any beneficial interests in a Temporary Regulation S Global Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the Regulation S Global Certificate of the same Class is improperly withheld or refused. The aggregate Certificate Principal Balance of a Temporary Regulation S Global Certificate or a Regulation S Global Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.
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On the Closing Date, the Certificate Administrator shall execute, the Authenticating Agent shall authenticate, and the Certificate Administrator shall deliver to the Certificate Registrar the Regulation S Global Certificates, which shall be held by the Certificate Registrar for purposes of effecting the exchanges contemplated by the preceding paragraph.
(ii) The Certificates of each Class of Private Certificates (other than the Class Z and Class R Certificates) offered and sold to Qualified Institutional Buyers in reliance on Rule 144A shall be represented by a single, global certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each, a “Rule 144A Global Certificate”), which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Principal Balance of a Rule 144A Global Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.
(iii) The Certificates of each Class of Private Certificates offered and sold in the United States to investors that are Institutional Accredited Investors that are not Qualified Institutional Buyers and the Class Z and the Class R Certificates (collectively, the “Non-Book Entry Certificates”) shall be in the form of Definitive Certificates, substantially in the applicable form set forth as an exhibit hereto, and shall be registered in the name of such investors or their nominees by the Certificate Registrar who shall deliver the certificates for such Non-Book Entry Certificates to the respective beneficial owners or owners.
(d) Owners of beneficial interests in Global Certificates of any Class shall not be entitled to receive physical delivery of certificated Certificates unless: (i) the Depository advises the Certificate Registrar in writing that the Depository is no longer willing or able to discharge properly its responsibilities as depository with respect to the Global Certificates of such Class or ceases to be a Clearing Agency, and the Certificate Administrator and the Depositor are unable to locate a qualified successor within 90 days of such notice; (ii) the Trustee has instituted or has been directed to institute any judicial proceeding to enforce the rights of the Holders of such Class and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Trustee to obtain possession of the Certificates of such Class; or (iii) in the case of a Private Certificate, all of the applicable requirements of Section 5.03 of this Agreement are satisfied; provided, however, that under no circumstances will certificated Private Certificates be issued to beneficial owners of a Temporary Regulation S Global Certificate. Upon notice of the occurrence of any of the events described in clause (i) or (ii) above with respect to any Certificates of a Class that are in the form of Global Certificates and upon surrender by the Depository of any Global Certificate of such Class and receipt from the Depository of instructions for reregistration, the Certificate Registrar shall issue Certificates of such Class in the form of Definitive Certificates (bearing, in the case of a Definitive Certificate issued for a Rule 144A Global Certificate, the same legends regarding transfer restrictions borne by such Global Certificate), and thereafter the Certificate Registrar shall recognize the holders of such Definitive Certificates as Certificateholders under this Agreement.
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(e) If any Beneficial Owner wishes to transfer its interest in a Rule 144A Global Certificate to an Institutional Accredited Investor that is not a Qualified Institutional Buyer, or wishes to transfer its interest in a Regulation S Global Certificate to a “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) that is an Institutional Accredited Investor but not a Qualified Institutional Buyer, then the transferee shall take delivery in the form of a Non-Book Entry Certificate, subject to the restrictions on the transfer of such Non-Book Entry Certificate in Section 5.03(h) of this Agreement. No such transfer shall be made and the Certificate Registrar shall not register any such transfer unless such transfer complies with the provisions of Section 5.03(h) of this Agreement applicable to transfers of Non-Book Entry Certificates. Upon acceptance for exchange or transfer of a beneficial interest in a Global Certificate for a Non-Book Entry Certificate, as provided herein, the Certificate Registrar shall endorse on the schedule affixed to the related Global Certificate (or on a continuation of such schedule affixed to such Global Certificate and made a part thereof) an appropriate notation evidencing the date of such exchange or transfer and a decrease in the denomination of such Global Certificate equal to the denomination of such Non-Book Entry Certificate issued in exchange therefor or upon transfer thereof.
Section 5.03 Registration, Transfer and Exchange of Certificates.
(a) The Certificate Administrator shall keep or cause to be kept at its principal offices books (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided (the Certificate Administrator, in such capacity, being the “Certificate Registrar”). In such capacities, the Certificate Administrator shall be responsible for, among other things, (i) maintaining the Certificate Register and a record of the aggregate holdings of Certificates of each Class of Private Certificates represented by a Temporary Regulation S Global Certificate, a Regulation S Global Certificate and a Rule 144A Global Certificate and accepting Certificates for exchange and registration of transfer and (ii) transmitting to the Depositor, the Master Servicer and the Special Servicer any notices from the Certificateholders.
(b) Subject to the restrictions on transfer set forth in this Article V, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
(c) Rule 144A Global Certificate to Temporary Regulation S Global Certificate. If a holder of a beneficial interest in the Rule 144A Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time during the Restricted Period to exchange its interest in such Rule 144A Global Certificate for an interest in the Temporary Regulation S Global Certificate of the same Class, or to transfer its interest in such Rule 144A Global Certificate to an institution that is required to take delivery thereof in the form of an interest in the Temporary Regulation S Global Certificate of the same Class, such holder may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in such Temporary Regulation S Global Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in
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Section 5.11 of this Agreement, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit, or cause to be credited, a beneficial interest in the Temporary Regulation S Global Certificate in an amount equal to the beneficial interest in the Rule 144A Global Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account and (3) a certificate in the form of Exhibit E to this Agreement given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Certificates and pursuant to and in accordance with Regulation S, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Principal Balance of the Rule 144A Global Certificate and to increase, or cause to be increased, the Certificate Principal Balance of the Temporary Regulation S Global Certificate by the aggregate Certificate Principal Balance of the beneficial interest in the Rule 144A Global Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions (who shall be the agent member of Euroclear or Clearstream, or both) a beneficial interest in the Temporary Regulation S Global Certificate equal to the reduction in the Certificate Principal Balance of the Rule 144A Global Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Global Certificate that is being exchanged or transferred.
(d) Rule 144A Global Certificate to Regulation S Global Certificate. If a holder of a beneficial interest in the Rule 144A Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time following the Restricted Period to exchange its interest in such Rule 144A Global Certificate for an interest in the Regulation S Global Certificate of the same Class, or to transfer its interest in such Rule 144A Global Certificate to an institution that is required to take delivery thereof in the form of an interest in a Regulation S Global Certificate, such holder may, subject to the rules and procedures of the Depository, exchange, or cause the exchange of, such interest for an equivalent beneficial interest in such Regulation S Global Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.11 of this Agreement, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Certificate in an amount equal to the beneficial interest in the Rule 144A Global Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with such increase and (3) a certificate in the form of Exhibit F to this Agreement given by the holder of such beneficial interest, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Principal Balance of the Rule 144A Global Certificate and to increase, or cause to be increased, the Certificate Principal Balance of the Regulation S Global Certificate by the aggregate Certificate Principal Balance of the beneficial interest in the Rule 144A Global Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Certificate equal to the reduction in the Certificate Principal Balance of the Rule 144A Global Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Global Certificate that is being exchanged or transferred.
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(e) Temporary Regulation S Global Certificate or Regulation S Global Certificate to Rule 144A Global Certificate. If a holder of a beneficial interest in a Temporary Regulation S Global Certificate or Regulation S Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Temporary Regulation S Global Certificate or Regulation S Global Certificate for an interest in the Rule 144A Global Certificate of the same Class, or to transfer its interest in such Temporary Regulation S Global Certificate or Regulation S Global Certificate to a Person who is required to take delivery thereof in the form of an interest in the Rule 144A Global Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, as the case may be, and the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in the Rule 144A Global Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.11 of this Agreement, of (1) instructions from Euroclear or Clearstream, if applicable, and the Depository, directing the Certificate Registrar, as registrar, to credit or cause to be credited a beneficial interest in the Rule 144A Global Certificate equal to the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, (2) with respect to a transfer of an interest in the Regulation S Global Certificate, information regarding the participant account of the Depository to be debited with such decrease and (3) with respect to a transfer of an interest in the Temporary Regulation S Global Certificate (but not the Regulation S Global Certificate) for an interest in the Rule 144A Global Certificate at any time during the Restricted Period, a certificate in the form of Exhibit G to this Agreement given by the holder of such beneficial interest and stating that the Person transferring such interest in the Temporary Regulation S Global Certificate reasonably believes that the Person acquiring such interest in the Rule 144A Global Certificate is a Qualified Institutional Buyer and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Principal Balance of the Temporary Regulation S Global Certificate or Regulation S Global Certificate and to increase, or cause to be increased, the Certificate Principal Balance of the Rule 144A Global Certificate by the aggregate Certificate Principal Balance of the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate to be exchanged, and the Certificate Registrar shall instruct the Depository, concurrently with such reduction, to credit, or cause to be credited, to the account of the Person specified in such instructions, a beneficial interest in the Rule 144A Global Certificate equal to the reduction in the Certificate Principal Balance of the Temporary Regulation S Global Certificate or Regulation S Global Certificate and to debit, or cause to be debited, from the account of the Person making such transfer the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate that is being transferred.
(f) Temporary Regulation S Global Certificate to Regulation S Global Certificate. Interests in a Temporary Regulation S Global Certificate as to which the Certificate Registrar has received from Euroclear or Clearstream, as the case may be, a certificate (a “Non-U.S. Beneficial Ownership Certification”) to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit H to this Agreement from the holder of a beneficial interest in such Temporary Regulation S Global Certificate, shall be exchanged after the Restricted Period, for interests in the Regulation S Global Certificate of the same Class or Private Certificates. The Certificate Registrar shall effect such exchange by
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delivering to the Depository for credit to the respective accounts of such holders, a duly executed and authenticated Regulation S Global Certificate, representing the aggregate Certificate Principal Balance of interests in the Temporary Regulation S Global Certificate initially exchanged for interests in the Regulation S Global Certificate. The delivery to the Certificate Registrar by Euroclear or Clearstream of the certificate or certificates referred to above may be relied upon by the Depositor and the Certificate Registrar as conclusive evidence that the certificate or certificates referred to therein has or have been delivered to Euroclear or Clearstream pursuant to the terms of this Agreement and the Temporary Regulation S Global Certificate. Upon any exchange of interests in the Temporary Regulation S Global Certificate for interests in the Regulation S Global Certificate, the Certificate Registrar shall endorse the Temporary Regulation S Global Certificate to reflect the reduction in the Certificate Principal Balance represented thereby by the amount so exchanged and shall endorse the Regulation S Global Certificate to reflect the corresponding increase in the amount represented thereby. Until so exchanged in full and except as provided therein, the Temporary Regulation S Global Certificate, and the Certificates evidenced thereby, shall in all respects be entitled to the same benefits under this Agreement as the Regulation S Global Certificate and Rule 144A Global Certificate authenticated and delivered hereunder.
(g) Non-Book Entry Certificate to Global Certificate. If a holder of a Non-Book Entry Certificate that is a Private Certificate (other than a Class Z or Class R Certificate) wishes at any time to exchange its interest in such Non-Book Entry Certificate for an interest in a Global Certificate of the same Class, or to transfer all or part of such Non-Book Entry Certificate to a Person who is entitled to take delivery thereof in the form of an interest in a Global Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, if applicable, and the Depository, cause the exchange of all or part of such Non-Book Entry Certificate for an equivalent beneficial interest in the appropriate Global Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.11 of this Agreement, of (1) such Non-Book Entry Certificate, duly endorsed as provided herein, (2) instructions from such holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Global Certificate equal to the portion of the Certificate Principal Balance of the Non-Book Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase and (3) a certificate in the form of Exhibit I to this Agreement (in the event that the applicable Global Certificate is the Temporary Regulation S Global Certificate), in the form of Exhibit J to this Agreement (in the event that the applicable Global Certificate is the Regulation S Global Certificate) or in the form of Exhibit K to this Agreement (in the event that the applicable Global Certificate is the Rule 144A Global Certificate), then the Certificate Registrar, as registrar, shall cancel, or cause to be canceled, all or part of such Non-Book Entry Certificate, and shall, if applicable, direct the Certificate Administrator to execute, authenticate and deliver to the transferor a new Non-Book Entry Certificate equal to the aggregate Certificate Principal Balance of the portion retained by such transferor and shall instruct the Depository to increase, or cause to be increased, such Global Certificate by the aggregate Certificate Principal Balance of the portion of the Non-Book Entry Certificate to be exchanged and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Global Certificate equal to the Certificate Principal Balance of the portion of the Non-Book Entry Certificate so canceled.
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(h) Exchanges of Non-Book Entry Certificates. If a holder of a Rule 144A Global Certificate, Regulation S Global Certificate or Non-Book Entry Certificate (other than a Public Certificate) wishes at any time to transfer its interest in such Rule 144A Global Certificate, Regulation S Global Certificate or Non-Book Entry Certificate to a Person who is required to take delivery thereof in the form of a Non-Book Entry Certificate, then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon): (i) an investment representation letter from the proposed transferee substantially in the form attached as Exhibit L-4 to this Agreement and (ii) if required by the Certificate Registrar, an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or the proposed transferee on which such opinion of counsel is based (such opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee or the Certificate Registrar in their respective capacities as such).
(i) Other Exchanges. In the event that a Global Certificate is exchanged for a Definitive Certificate (other than as otherwise set forth in Section 5.02(d) of this Agreement), such Certificates may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of clauses (c) through (f) and (h) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S under the Securities Act, at the case may be) and such other procedures as may from time to time be adopted by the Certificate Registrar.
(j) Restricted Period. Prior to the termination of the Restricted Period with respect to the issuance of the Certificates, transfers of interests in the Temporary Regulation S Global Certificate to U.S. persons (as defined in Regulation S) shall be limited to transfers made pursuant to the provisions of clause (e) above.
(k) [Reserved]
(l) All Certificates surrendered for registration of transfer and exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with the Certificate Registrar’s customary procedures.
(m) No ERISA Restricted Certificate, Class Z or Class R Certificate may be purchased by or transferred to any prospective purchaser or transferee that is or will be an employee benefit plan or other plan subject to the fiduciary responsibility or prohibited transaction provisions of ERISA or Code Section 4975 or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (each, a “Plan”), or any person acting on behalf of any such Plan or using the assets of a Plan (within the meaning of 29 C.F. R. Section 2510.3 101, as modified by Section 3(42) of ERISA, or of applicable Similar Law) to purchase such ERISA Restricted Certificate, Class Z or Class R Certificate, other than, in the case of the ERISA Restricted Certificates, an insurance company using the assets of its general account under circumstances whereby the purchase and holding of such Certificates by such insurance company would be exempt from the prohibited transaction
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provisions of ERISA and the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 (or a Plan subject to Similar Law where the purchase and holding of such Certificates by such Plan would not constitute a non-exempt violation of Similar Law). Except in connection with the transfer thereof by an Initial Purchaser or the Depositor, each prospective transferee of an ERISA Restricted Certificate, Class Z or Class R Certificate in Non-Book Entry Certificate form shall deliver to the transferor, the Depositor, the Certificate Registrar, the Certificate Administrator and the Trustee a representation letter, substantially in the form of Exhibit L-3 to this Agreement, stating that the prospective transferee is not a Plan or a person acting on behalf of or using the assets of a Plan (within the meaning of 29 C.F. R. Section 2510.3 101, as modified by Section 3(42) of ERISA, or of applicable Similar Law), other than, in the case of the ERISA Restricted Certificates, an insurance company using the assets of its general account under circumstances whereby the purchase and holding of such Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 (or a Plan subject to Similar Law where the purchase and holding of such Certificates by such Plan would not constitute a non-exempt violation of Similar Law). No Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C or Class D Certificate and no Certificate which has ceased to be an ERISA Restricted Certificate (because of the proviso in the definition of “ERISA Restricted Certificate”) may be purchased by or transferred to any prospective purchaser or transferee that is or will be a Plan, or any person acting on behalf of any such Plan or using the assets of a Plan (within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, or of applicable Similar Law) to purchase such Certificate, unless (A) the purchaser is an “accredited investor” within the meaning of Rule 501(a)(1) of the Securities Act and (B) the acquisition, holding and disposition of such Certificate by the purchaser will not constitute or otherwise result in a non-exempt prohibited transaction under ERISA or Code Section 4975 (or a similar non-exempt violation of Similar Law). Any attempted or purported transfer in violation of these transfer restrictions shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.
(n) Each Person who has or acquires any Residual Ownership Interest shall be deemed by the acceptance or acquisition of such Residual Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Residual Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Residual Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Residual Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Residual Ownership Interest) as a Permitted Transferee. Any acquisition described in the first sentence of this Section 5.03(n) by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void ab initio and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Residual Ownership Interest as soon and as fully as possible.
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(ii) No Residual Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar, and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Residual Ownership Interest, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached as Exhibit L-1 to this Agreement (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to comply with the provisions of this Section 5.03(n) and (y) other than in connection with the initial issuance of a Class R Certificate or the Transfer of any Class R Certificate by any Initial Purchaser in connection with the initial offering of the Certificates, require a statement from the proposed transferor substantially in the form attached as Exhibit L-2 to this Agreement (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in the Transferee Affidavit are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (n)(ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, however, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee. Upon notice to the Certificate Registrar that there has occurred a Transfer to any Person that is a Disqualified Organization or an agent thereof (including a broker, nominee or middleman) in contravention of the foregoing restrictions, and in any event not later than 60 days after a request for information from the transferor of such Residual Ownership Interest or such agent, the Certificate Registrar and the Certificate Administrator agree to furnish to the IRS and the transferor of such Residual Ownership Interest or such agent such information necessary to the application of Code Section 860E(e) as may be required by the Code, including, but not limited to, the present value of the total anticipated excess
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inclusions with respect to such Class R Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar, the Certificate Registrar may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, however, that such Persons shall in no event be excused from furnishing such information.
(iv) The Class R Certificates may only be represented by Definitive Certificates and may only be transferred to and owned by Qualified Institutional Buyers.
(v) The Class Z Certificates may only be represented by Definitive Certificates and may only be transferred to and owned by Qualified Institutional Buyers or Institutional Accredited Investors.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Certificate Registrar, the Trustee and the Certificate Administrator such security or indemnity as may be required by it to save it harmless, then, in the absence of actual notice that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall direct the Certificate Administrator to execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust Fund. In connection with the issuance of any new Certificate under this Section 5.04, the Certificate Registrar and the Certificate Administrator may require the payment of a sum sufficient to cover any expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 5.04 shall constitute complete and indefeasible evidence of ownership in the Trust Fund, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. The Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and neither the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Registrar, nor any agent of any of them shall be affected by any notice to the contrary; provided, however, that to the extent that a party to this Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to this Agreement shall distribute such report, statement or other information to such Beneficial Owner (or prospective transferee).
Section 5.06 Appointment of Paying Agent. The Certificate Administrator may appoint (and, if it does not so appoint, shall act as) a paying agent for the purpose of making distributions to Certificateholders pursuant to Section 4.01 of this Agreement. The Certificate Administrator shall cause such Paying Agent, if other than the Certificate Administrator or the Master Servicer, to execute and deliver to the Master Servicer and the Certificate Administrator an instrument that is consistent in all material respects with this Agreement and in which such
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Paying Agent shall agree with the Master Servicer and the Certificate Administrator that such Paying Agent will hold all sums held by it for the payment to Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums have been paid to the Certificateholders or disposed of as otherwise provided herein. The initial Paying Agent shall be the Certificate Administrator. The Paying Agent shall at all times (a) have a rating on its unsecured long-term debt of at least “A2” by Moody’s and “A” by Fitch and (b) have a rating on its unsecured short-term debt of at least “P-1” by Moody’s (or have such other rating with respect to which the Rating Agencies have provided a Rating Agency Confirmation).
Section 5.07 Access to Certificateholders’ Names and Addresses; Special Notices.
(a) If any Certifying Certificateholder, the Master Servicer or the Special Servicer (for purposes of this Section 5.07, an “Applicant”) applies or requests in writing to the Certificate Registrar, and such application or request states that the Applicant desires to communicate with the Certificateholders, the Certificate Registrar shall promptly furnish or cause to be furnished to such Applicant a list of the names and addresses of the Certificateholders as of the most recent Record Date as they appear in the Certificate Register, at the expense of the Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate, agrees with the Certificate Administrator that the Certificate Administrator and the Certificate Registrar shall not be held accountable in any way by reason of the disclosure of any information as to the names and addresses of the Certificateholders hereunder, regardless of the source from which such information was derived.
(c) Upon the written request of any Certifying Certificateholder or a Companion Loan Holder that (a) states that such Certificateholder or such Companion Loan Holder, as applicable, desires the Certificate Administrator to transmit a notice to all Certificateholders stating that such Certificateholder or such Companion Loan Holder, as applicable, wishes to be contacted by other Certificateholders, setting forth the relevant contact information and briefly stating the reason for the requested contact and (b) provides a copy of the Special Notice which such Certificateholder or such Companion Loan Holder proposes to transmit, the Certificate Administrator shall post such request and Special Notice to the Certificate Administrator’s Website and shall mail such request and Special Notice to all Certificateholders at their respective addresses appearing on the Certificate Register. The costs and expenses of the Certificate Administrator associated with delivering any such Special Notice shall be borne by the party requesting such Special Notice. Every Certificateholder, by receiving and holding a Certificate, agrees that neither the Certificate Administrator nor the Certificate Registrar shall be held accountable by reason of the disclosure of any such Special Notice to Certificateholders, regardless of the information set forth in such Special Notice.
Section 5.08 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Certificateholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by
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such Certificateholders in person or by agent duly appointed in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Certificate Administrator and, when required, to the Depositor, the Master Servicer or the Special Servicer. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Certificate Administrator, the Depositor, the Special Servicer and the Master Servicer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such instrument or writing may be proved in any reasonable manner which the Certificate Administrator deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver or other act by a Certificateholder shall bind every Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, or omitted to be done, by the Trustee, the Certificate Administrator, the Depositor, the Special Servicer or the Master Servicer in reliance thereon, whether or not notation of such action is made upon such Certificate.
(d) The Certificate Administrator or Certificate Registrar may require such additional proof of any matter referred to in this Section 5.08 as it shall deem necessary.
Section 5.09 Authenticating Agent. The Certificate Administrator may appoint an Authenticating Agent to execute and to authenticate Certificates. The Authenticating Agent must be acceptable to the Depositor and must be a corporation organized and doing business under the laws of the United States of America or any state, having a principal office and place of business in a state and city acceptable to the Depositor, having a combined capital and surplus of at least $15,000,000, authorized under such laws to do a trust business and subject to supervision or examination by federal or state authorities. The Certificate Administrator shall serve as the initial Authenticating Agent and the Certificate Administrator hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Authenticating Agent shall be party, or any corporation succeeding to the corporate agency business of the Authenticating Agent, shall be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days’ advance written notice of resignation to the Certificate Administrator and the Depositor. The Certificate Administrator may at any time terminate the agency of the Authenticating Agent by giving written notice of termination to the Authenticating Agent and the Depositor. Upon receiving a notice of resignation or upon such a termination, or in case at any time the Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.09, the Certificate Administrator promptly shall appoint a successor Authenticating Agent, which shall be acceptable to the Depositor, and shall mail notice of such appointment to all
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Certificateholders. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 5.09.
The Authenticating Agent shall have no responsibility or liability for any action taken by it as such at the direction of the Certificate Administrator. Any compensation paid to the Authenticating Agent shall be an unreimbursable expense of the Certificate Administrator. The appointment of an Authenticating Agent shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible for all acts and omissions of the Authenticating Agent.
Section 5.10 Appointment of Custodian. The Certificate Administrator may appoint one or more Custodians to hold all or a portion of the Mortgage Files as agent for the Certificate Administrator, by entering into a Custodial Agreement (in the event the Certificate Administrator is not the Custodian) that is consistent in all material respects with this Agreement. The Certificate Administrator shall give prompt written notice to the Depositor of any appointment of a Custodian. The Certificate Administrator agrees to comply with the terms of each Custodial Agreement and to enforce the terms and provisions thereof against the Custodian for the benefit of the Certificateholders and the Companion Loan Holders. Each Custodian shall be a depository institution subject to supervision by federal or state authority, shall have a combined capital and surplus of at least $10,000,000, shall have a long-term debt rating of at least “Baa1” by Moody’s, “BBB+” by Fitch and if rated by KBRA, a rating by KBRA at least equivalent to “Baa1” by Moody’s, and shall be qualified to do business in the jurisdiction in which it holds any Mortgage File. Each Custodial Agreement may be amended only as provided in Section 11.07 of this Agreement. Any compensation paid to the Custodian shall be an unreimbursable expense of the Certificate Administrator. The Certificate Administrator shall serve as the initial Custodian and shall be deemed appointed as Custodian at all times that no other party is so appointed in accordance with this Section 5.10. The Custodian, if the Custodian is not the Certificate Administrator, shall maintain a fidelity bond in the form and amount that are customary for securitizations similar to the securitization evidenced by this Agreement, with the Certificate Administrator named as loss payee. The Custodian shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Custodian. In addition, the Custodian shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations hereunder in the form and amount that are customary for securitizations similar to the securitization evidenced by this Agreement, with the Certificate Administrator named as loss payee. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 5.10 shall be issued by a Qualified Insurer, or by any other insurer with respect to which the Rating Agencies have provided to the Certificate Administrator a Rating Agency Confirmation. The appointment of a Custodian shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible for all acts and omissions of the Custodian. In the event the Certificate Administrator is the Custodian, the Custodian may self-insure.
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Section 5.11 Maintenance of Office or Agency. The Certificate Registrar shall maintain or cause to be maintained an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Certificates and this Agreement may be served. The Certificate Registrar initially designates its office at Sixth Street & Marquette Avenue, Minneapolis, Minnesota 55479-0113 as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Certificateholders of any change in the location of the Certificate Register or any such office or agency.
ARTICLE
VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, the
Operating Advisor and the CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor. The Depositor, the Master Servicer, the Special Servicer and the Operating Advisor each shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement. Each of the Master Servicer, the Special Servicer and the Operating Advisor shall indemnify the Depositor, and any employee, director or officer of the Depositor, the Trust Fund and any holder of a Serviced Companion Loan and hold the Depositor, any employee, director or officer of the Depositor, the Trust Fund and any holder of a Serviced Companion Loan harmless against any loss, liability or reasonable expense (including, without limitation, reasonable attorneys’ fees and expenses) incurred by such parties (i) as a result of any willful misconduct, bad faith, fraud or negligence in the performance of the duties of the Master Servicer, the Special Servicer or the Operating Advisor, as the case may be, or by reason of negligent disregard of the Master Servicer’s, the Special Servicer’s or the Operating Advisor’s, as the case may be, obligations or duties hereunder, or (ii) as a result of the breach by the Master Servicer, the Special Servicer or the Operating Advisor, as the case may be, of any of its representations or warranties contained herein. The Depositor shall indemnify the Trust Fund and the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor, and any employee, member, manager, director or officer of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor and hold the Trust Fund and the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor and any employee, member, manager, director or officer of either the Master Servicer, the Special Servicer, the Trustee or the Operating Advisor harmless against any loss, liability or reasonable expense (including, without limitation, reasonable attorneys’ fees and expenses) incurred by such parties (i) in connection with any willful misconduct, bad faith, fraud and/or negligence in the performance of duties of the Depositor or by reason of negligent disregard of the Depositor obligations or duties hereunder, or (ii) as a result of the breach by the Depositor of any of its representations or warranties contained herein.
Section 6.02 Merger or Consolidation of the Master Servicer, the Special Servicer and the Operating Advisor. Subject to the following paragraph, each of the Master Servicer, the Special Servicer and the Operating Advisor shall keep in full effect its existence, rights and good standing as a national banking association, a corporation or a limited liability
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company, as applicable, under the laws of the state of its organization and shall not jeopardize its ability to do business in each jurisdiction in which the Mortgaged Properties are located, to the extent necessary to perform its obligations under this Agreement, or to protect the validity and enforceability of this Agreement, the Certificates or any of the Mortgage Loans and to perform its respective duties under this Agreement.
Each of the Master Servicer, the Special Servicer and the Operating Advisor may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets (which may be limited to all or substantially all of its assets related to commercial mortgage loan servicing or, in the case of the Operating Advisor, may be limited to all or substantially all of its assets related to acting as an operating advisor or trust advisor for commercial mortgage securitizations) to any Person, in which case any Person resulting from any merger or consolidation to which it shall be a party, or any Person succeeding to its business, shall be the successor of the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, hereunder, and shall be deemed to have assumed all of the liabilities of the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, hereunder, if each of the Rating Agencies has provided a Rating Agency Confirmation; provided that the Operating Advisor shall not be required to obtain a Rating Agency Confirmation from any Rating Agency if the Operating Advisor is merged into or consolidated with an Eligible Operating Advisor or transfers all or substantially all of its assets to an Eligible Operating Advisor; and provided, further, that if the Master Servicer, the Special Servicer or the Operating Advisor enters into a merger and the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, is the surviving entity under applicable law, then the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, shall not, as a result of the merger, be required to provide a Rating Agency Confirmation. Notwithstanding the foregoing, no Master Servicer, Special Servicer or Operating Advisor may remain the Master Servicer, Special Servicer or Operating Advisor, as applicable, under this Agreement after (x) being merged or consolidated with or into any Person that is a Prohibited Party, or (y) transferring all or substantially all of its assets to any Person if such Person is a Prohibited Party, except to the extent (i) the Master Servicer, the Special Servicer or Operating Advisor, as applicable, is the surviving entity of such merger, consolidation or transfer and has been and continues to be in compliance with its Regulation AB reporting obligations hereunder or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld.
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and Others. None of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor or any of the directors, members, managers, officers, employees or agents of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor shall be under any liability to the Trust, the Certificateholders, the Companion Loan Holders or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor or any such Person against liability which would otherwise be imposed by reason of (i) any breach of warranty or representation by such respective party in this Agreement or (ii) any willful misconduct, bad faith, fraud or negligence on the part of such respective party in the performance of its obligations and duties hereunder or by reason of negligent disregard on the part of such respective party of its obligations or duties hereunder. The Depositor, the Master
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Servicer, the Special Servicer, the Operating Advisor and any director, member, manager, officer, employee or agent of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and any director, member, manager, officer, employee or agent of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor shall be indemnified and held harmless by the Trust (which indemnification amounts shall be payable out of the Collection Account or the applicable Serviced Whole Loan Custodial Account if and to the extent with respect to a Serviced Whole Loan and then out of the Collection Account, provided that, to the extent that the amount relates to a Serviced Whole Loan, is required under the Co-Lender Agreement to be borne by the holder of a related Companion Loan and is paid from the Collection Account because funds on deposit in the applicable Serviced Whole Loan Custodial Account are insufficient to pay such indemnification, then the Master Servicer shall from time to time thereafter use amounts otherwise payable to the holder of such Companion Loan to deposit into the Collection Account the amount so paid from the Collection Account) against any loss, liability, penalty, fine, forfeiture, claim, judgment or expense (including reasonable legal fees and expenses) incurred in connection with, or relating to, this Agreement or the Certificates, other than any loss, liability, penalty, fine, forfeiture, claim, judgment or expense (including reasonable legal fees and expenses) (i) incurred by reason of willful misconduct, bad faith, fraud or negligence in the performance of obligations or duties hereunder or by reason of negligent disregard of obligations or duties hereunder, in each case by the Person being indemnified, (ii) with respect to any such party, resulting from the breach by such party of any of its representations or warranties contained herein, (iii) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms hereof or (iv) which constitutes an Advance that is otherwise reimbursable hereunder. None of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor shall be under any obligation to appear in, prosecute or defend any legal action unless such action is related to its respective duties under this Agreement and in its opinion does not expose it to any expense or liability for which reimbursement is not reasonably assured; provided, however, that any of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor may in its discretion undertake any such action related to its obligations hereunder which it may deem necessary or desirable with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder. In such event, the reasonable legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust (payable out of the Collection Account or the applicable Serviced Whole Loan Custodial Account if and to the extent with respect to a Serviced Whole Loan and then out of the Collection Account, provided that to the extent that the amount relates to a Serviced Whole Loan, is required under the related Co-Lender Agreement to be borne by the holder of a related Companion Loan and is paid from the Collection Account because funds on deposit in the applicable Serviced Whole Loan Custodial Account are insufficient to pay such indemnification, then the Master Servicer shall from time to time thereafter use amounts otherwise payable to the holder of such Companion Loan to deposit into the Collection Account the amount so paid from the Collection Account), and the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor shall be entitled to be reimbursed therefor from the
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Collection Account or the applicable Serviced Whole Loan Custodial Account, as applicable, as provided in Section 3.06 and Section 3.06A of this Agreement.
Each Other Securitization Trust, Other Master Servicer, an Other Special Servicer, an Other Depositor, an Other Trustee, an Other Certificate Administrator, an Other Operating Advisor, and any of their respective directors, officers, employees or agents (collectively, the “Other Indemnified Parties”), shall be indemnified by the Trust and held harmless against the Trust’s pro rata share (subject to the related Co-Lender Agreement) of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of each Non-Serviced Mortgage Loan and the related Mortgaged Property under the related Other Pooling and Servicing Agreement (but excluding any such losses allocable to each Non-Serviced Companion Loan), other than any losses incurred by reason of any Other Indemnified Party’s willful misfeasance, bad faith or negligence in the performance of its obligations or duties or by reason of negligent disregard of obligations and duties under the applicable Other Pooling and Servicing Agreement and to the extent amounts on deposit in the “serviced whole loan custodial account” (or such other similar term, as defined in the applicable Other Pooling and Servicing Agreement) are insufficient for reimbursement of such amounts, the Master Servicer shall, promptly following notice from the related Other Master Servicer, reimburse each of such applicable Persons for the Trust’s pro rata share of the insufficiency out of general funds in the Collection Account.
Section 6.04 Limitation on Resignation of the Master Servicer, the Special Servicer or the Operating Advisor.
(a) Each of the Master Servicer, the Special Servicer and the Operating Advisor may assign its respective rights and delegate its respective duties and obligations under this Agreement; provided that, with respect to any of the Master Servicer, the Special Servicer or the Operating Advisor: (i) the successor accepting such assignment and delegation (A) shall be an established mortgage finance entity, bank or other entity regularly engaged in the servicing of commercial mortgage loans (or, in the case of the Operating Advisor, an Eligible Operating Advisor), organized and doing business under the laws of any state of the United States, the District of Columbia or the United States, authorized under such laws to perform the duties of a servicer of mortgage loans or of an operating advisor, as applicable, or a Person resulting from a merger, consolidation or succession that is permitted under Section 6.02 of this of this Agreement and, in the case of a Serviced Whole Loan, under the related Co-Lender Agreement, and (B) shall execute and deliver to the Trustee and the Certificate Administrator an agreement which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer, the Special Servicer or the Operating Advisor, as the case may be, under this Agreement from and after the date of such agreement; (ii) except in the case of a successor operating advisor that satisfies the requirements of an Eligible Operating Advisor, each Rating Agency has delivered to the Trustee a Rating Agency Confirmation; (iii) the Master Servicer, the Special Servicer or the Operating Advisor shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 6.04; (iv) the rate at which the Operating Advisor Fee, the Servicing Fee or Special Servicing Compensation, as applicable (or any component thereof) is calculated shall not exceed the rate then in effect; (v)
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solely in the case of the Charles River Plaza North Whole Loan, for so long as the related Subordinate Companion Loan Holder is the applicable Whole Loan Directing Holder, the successor special servicer is acceptable to the related Subordinate Companion Loan Holder; (vi) solely in the case of the WPC Department Store Portfolio Whole Loan prior to the WPC Department Store Portfolio Securitization Date, the successor special servicer is acceptable to the WPC Department Store Portfolio Directing Holder; and (vii) the resigning Master Servicer, Special Servicer or Operating Advisor, as applicable, shall be responsible for the reasonable costs and expenses of each other party hereto, the Trust and the Rating Agencies in connection with such transfer. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer, Special Servicer or Operating Advisor, as applicable, hereunder.
(b) Except as provided in this Section 6.04 and Section 7.06(e), and subject to the following paragraph, the Master Servicer, the Special Servicer and the Operating Advisor shall not resign from their respective obligations and duties hereby imposed on them except upon determination that such duties hereunder are no longer permissible under applicable law; provided that, on and after the time the Trustee receives notice of resignation by the Master Servicer, the Special Servicer or the Operating Advisor upon determination that such duties hereunder are no longer permissible under applicable law, the Trustee shall, subject to the terms and provisions of Section 7.02 of this Agreement as if the resigning party was a Terminated Party, be its successor in all respects in its capacity as Master Servicer, Special Servicer or Operating Advisor, as applicable, as though the Master Servicer, the Special Servicer or the Operating Advisor, as the case may be, had received a notice of termination. Any such determination permitting the resignation of the Master Servicer, the Special Servicer or Operating Advisor, as applicable, shall be evidenced by an Opinion of Counsel (obtained at the resigning Master Servicer’s, Special Servicer’s or Operating Advisor’s expense) to such effect delivered to the Trustee and the Certificate Administrator.
Except as provided in the immediately preceding paragraph, no resignation or removal of the Master Servicer, the Special Servicer or the Operating Advisor as contemplated herein (except in circumstances where no successor Operating Advisor is required to be appointed) shall become effective until the Trustee or a successor Master Servicer, Special Servicer or Operating Advisor shall have assumed the Master Servicer’s, the Special Servicer’s or the Operating Advisor’s, as applicable, responsibilities, duties, liabilities and obligations hereunder. If no successor Master Servicer, Special Servicer or Operating Advisor can be obtained to perform such obligations for the same compensation to which the terminated Master Servicer, Special Servicer or Operating Advisor would have been entitled, additional amounts payable to such successor Master Servicer, Special Servicer or Operating Advisor shall be treated as a shortfall resulting in Realized Losses; provided that, for so long as no Consultation Termination Event has occurred and is continuing, the Trustee shall consult with the Controlling Class Representative prior to the appointment of a successor Master Servicer, Special Servicer or Operating Advisor at a servicing or operating advisor compensation in excess of that permitted to the terminated Master Servicer, Special Servicer or Operating Advisor, as applicable, and will only be permitted to appoint such successor Master Servicer, Special Servicer or Operating Advisor at the direction of the Depositor. For so long as the holder of the Charles River Plaza North Subordinate Companion Loan is the Charles River Plaza North Directing Holder, the appointment of any successor special servicer with respect to the Charles River Plaza North
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Whole Loan shall be subject to the consent of the holder of the Charles River Plaza North Subordinate Companion Loan. The appointment of any successor special servicer with respect to the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Companion Loan Securitization Date) shall be subject to the consent of the WPC Department Store Portfolio Directing Holder.
If the Trustee or an Affiliate acts pursuant to this Section 6.04 as successor to the resigning Master Servicer, it may reduce the Excess Servicing Fee Rate to the extent that the Trustee’s or such Affiliate’s compensation as successor Master Servicer would otherwise be below the market rate servicing compensation. If the Trustee elects to appoint a successor to the resigning Master Servicer other than itself or an Affiliate pursuant to this Section 6.04, it may reduce the Excess Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer that meets the requirements of this Section 6.04.
Section 6.05 Rights of the Depositor, the Trustee and the Certificate Administrator in Respect of the Master Servicer and Special Servicer. The Master Servicer and the Special Servicer shall afford the Depositor, the Trustee, the Certificate Administrator and, subject to Section 11.13 of this Agreement, each Rating Agency, upon reasonable notice, during normal business hours access to all records maintained by it in respect of its rights and obligations hereunder and access to its officers responsible for such obligations, if reasonably related to the performance of the obligations of such Person under this Agreement. Upon request, if reasonably related to the performance of the obligations of such Person under this Agreement, the Master Servicer and the Special Servicer shall furnish to the Depositor, each of the Underwriters, the Initial Purchasers, the Master Servicer, the Special Servicer, the Trustee and the Certificate Administrator its most recent publicly available annual financial statements or those of its public parent. The Depositor may, but is not obligated to, enforce the obligations of the Master Servicer or the Special Servicer hereunder which are in default and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of such Person hereunder or exercise its rights hereunder, provided that the Master Servicer and the Special Servicer shall not be relieved of any of its obligations hereunder by virtue of such performance by the Depositor or its designee. In the event the Depositor or its designee undertakes any such action, it will be indemnified and reimbursed by the Trust from the Collection Account as provided in Section 3.06 and Section 6.03 of this Agreement to the extent not recoverable from the Master Servicer or Special Servicer, as applicable. None of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer (with respect to the Special Servicer) or the Special Servicer (with respect to the Master Servicer) shall have any responsibility or liability for any action or failure to act by the Master Servicer or the Special Servicer and neither such Person is obligated to monitor or supervise the performance of the Master Servicer or the Special Servicer under this Agreement or otherwise. Neither the Master Servicer nor the Special Servicer shall have any responsibility or liability for any action or failure to act by the Depositor, the Trustee or the Certificate Administrator and neither such Person is obligated to monitor or supervise the performance of the Depositor, the Trustee or the Certificate Administrator under this Agreement or otherwise.
Each of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, and the Special Servicer shall furnish such reports, certifications and information as are
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reasonably requested by the Trustee, the Certificate Administrator, the Depositor, the Master Servicer or the Special Servicer, as applicable, in order to enable such requesting party to perform its duties hereunder, provided that for the avoidance of doubt, this shall not require any Person to prepare any reports, Certificates and information not required to be prepared hereunder.
Neither the Master Servicer nor the Special Servicer shall be under any obligation to disclose confidential or proprietary information pursuant to this Section.
Section 6.06 Master Servicer, Special Servicer as Owner of a Certificate. The Master Servicer or an Affiliate of the Master Servicer or the Special Servicer or an Affiliate of the Special Servicer may become the Holder (or with respect to a Global Certificate, Beneficial Owner) of any Certificate with the same rights it would have if it were not the Master Servicer or the Special Servicer or an Affiliate thereof, except as otherwise expressly provided herein. If, at any time during which the Master Servicer or the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer is the Holder or Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer proposes to take action (including for this purpose, omitting to take action) that (i) is not expressly prohibited by the terms hereof and would not, in the Master Servicer’s or the Special Servicer’s good faith judgment, violate the Servicing Standard, and (ii) if taken, might nonetheless, in the Master Servicer’s or the Special Servicer’s good faith judgment, be considered by other Persons to violate the Servicing Standard, the Master Servicer or the Special Servicer may seek the approval of the Certificateholders and any affected Companion Loan Holder to such action by delivering to the Trustee and the Certificate Administrator a written notice that (i) states that it is delivered pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each Class of Certificates beneficially owned by the Master Servicer or the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer, and (iii) describes in reasonable detail the action that the Master Servicer or the Special Servicer proposes to take. The Certificate Administrator, upon receipt of such notice, shall forward it to the Certificateholders (other than the Master Servicer and its Affiliates or the Special Servicer and its Affiliates, as appropriate) together with such instructions for response as the Certificate Administrator shall reasonably determine. If at any time Certificateholders holding greater than 50% of the Voting Rights of all Certificateholders (calculated without regard to the Certificates beneficially owned by the Master Servicer or its Affiliates or the Special Servicer or its Affiliates) and any affected Companion Loan Holder shall have consented in writing to the proposal described in the written notice, and if the Master Servicer or the Special Servicer shall act as proposed in the written notice, such action shall be deemed to comply with the Servicing Standard. The Certificate Administrator shall be entitled to reimbursement from the Master Servicer or the Special Servicer, as applicable, of the reasonable expenses of the Certificate Administrator incurred pursuant to this paragraph. It is not the intent of the foregoing provision that the Master Servicer or the Special Servicer be permitted to invoke the procedure set forth herein with respect to routine servicing matters arising hereunder, except in the case of unusual circumstances.
Section 6.07 Rating Agency Fees. The Depositor shall pay (or cause to be paid) the annual fees of each Rating Agency including, but not limited to, surveillance fees.
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Section 6.08 Termination of the Special Servicer Without Cause.
(a) At any time prior to the occurrence and continuance of any Control Termination Event, subject to Section 6.08(g), Section 6.08(h) and Section 6.08(i) of this Agreement, the Controlling Class Representative shall be entitled to terminate the rights (subject to Section 3.12 and Section 6.03 of this Agreement) and obligations of the Special Servicer under this Agreement, with or without cause, upon ten (10) Business Days’ notice to the Special Servicer, the Master Servicer, the Certificate Administrator and the Trustee and, in the case of a termination of the Special Servicer with respect to a Serviced Whole Loan, the related Companion Loan Holder. Upon a termination (pursuant to the prior sentence) or a resignation (pursuant to Section 6.04(b) of this Agreement) of the Special Servicer, subject to Section 6.08(g), Section 6.08(h) and Section 6.08(i) of this Agreement, the Controlling Class Representative shall appoint a successor Special Servicer; provided, however, that (i) such successor will meet the requirements set forth in Section 7.02 of this Agreement, (ii) the Controlling Class Representative shall (at no expense to the Trust) obtain and deliver to the Certificate Administrator and the Trustee a Rating Agency Confirmation with respect to such proposed successor acting as a Special Servicer, and (iii) in the case of the appointment of a successor Special Servicer with respect to a Serviced Whole Loan, the Controlling Class Representative shall (at no expense to the Trust or the related Other Securitization Trust) obtain and deliver to the certificate administrator (if any) and the trustee for the related Other Securitization Trust (with a copy to the Certificate Administrator and the Trustee) a Companion Loan Rating Agency Confirmation with respect to such proposed successor acting as a Special Servicer for the related Companion Loan.
Following the occurrence and during the continuance of a Control Termination Event, upon (i) the written direction of Holders of Certificates (other than the Class Z and Class R Certificates) evidencing not less than 25% of the Voting Rights of the Certificates requesting a vote to terminate and replace the Special Servicer with a proposed successor Special Servicer, (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote and (iii) delivery by such Holders to the Certificate Administrator and the Trustee of a Rating Agency Confirmation with respect to the termination of the existing Special Servicer and the replacement thereof with the proposed successor (with the reasonable fees and out-of-pocket costs and expenses associated with obtaining such Rating Agency Confirmation to be an expense of such Holders), the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders by posting such notice on its internet website and by mailing at their addresses appearing in the Certificate Register. Upon the written direction of (a) Holders of Regular Certificates evidencing at least 75% of a Certificateholder Quorum or (b) Holders of Non-Reduced Certificates evidencing more than 50% of the Voting Rights of each of Class of Non-Reduced Certificates, (subject to Section 6.08(g), Section 6.08(h) and Section 6.08(i) of this Agreement), the Trustee shall terminate all of the rights (subject to Section 3.12 and Section 6.03 of this Agreement) and obligations of the Special Servicer under this Agreement, and the proposed successor Special Servicer shall succeed to the duties of the Special Servicer as if a removal and replacement were occurring pursuant to Section 7.01 and Section 7.02 of this Agreement; provided that if such written direction is not provided within 180 days of the initial request for a vote to terminate and replace the Special Servicer, then such written direction shall have no force and effect. The provisions set forth in the foregoing sentences of this Section
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6.08(a) shall be binding upon and inure to the benefit of solely the Certificateholders and the Trustee as between each other. The Special Servicer shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions. As between the Special Servicer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Special Servicer.
The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder and Beneficial Owner may access notices on the Certificate Administrator’s Website and each Certificateholder and Beneficial Owner may register to receive e-mail notifications when such notices are posted on the Certificate Administrator’s Website; provided that the Certificate Administrator shall be entitled to reimbursement from the requesting Certificateholders for the reasonable expenses of posting such notices.
(b) At any time after the occurrence and during the continuance of a Consultation Termination Event and subject to Section 6.08(g), Section 6.08(h) and Section 6.08(i) of this Agreement, if the Operating Advisor determines that the Special Servicer is not performing its duties as required hereunder or is otherwise not acting in accordance with the Servicing Standard, the Operating Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the Special Servicer, a written recommendation in the form of Exhibit T attached hereto (which form may be modified or supplemented from time to time to cure any ambiguity or error or to incorporate any additional information, subject to compliance of such form with the terms and provisions of this Agreement; provided that in no event shall the information or any other content included in such written recommendation contravene any provision of this Agreement) detailing the reasons supporting its position (along with relevant information justifying its recommendation) and recommending a replacement special servicer meeting the applicable requirements of this Agreement, which recommended special servicer has agreed to succeed as Special Servicer if appointed in accordance herewith. In such event, the Certificate Administrator shall promptly post a copy of such recommendation on the Certificate Administrator’s Website and by mail send notice to all Certificateholders, asking them to vote whether they wish to remove the Special Servicer. Upon (i) the written direction of Holders of each Class of Non-Reduced Certificates evidencing greater than 50% of the aggregate Voting Rights of each Class of Non-Reduced Certificates within 180 days of the initial request for a vote and (ii) receipt of Rating Agency Confirmation from each Rating Agency by the Certificate Administrator following satisfaction of the foregoing clause (i), the Trustee shall (A) subject to Section 6.08(g), Section 6.08(h) and Section 6.08(i) of this Agreement, terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the recommended successor Special Servicer and (B) promptly notify the outgoing Special Servicer of the effective date of such termination. The reasonable fees and out-of-pocket costs and expenses associated with obtaining such Rating Agency Confirmation and administering such vote shall be an Additional Trust Fund Expense. If the Certificate Administrator does not receive the required written direction contemplated by clause (i) of the second preceding sentence within 180 days of the initial request for such vote, then the Trustee shall have no obligation to remove the Special Servicer and such recommendation shall lapse and have no force or effect. Prior to the appointment of any replacement special servicer, such replacement special servicer shall have agreed to succeed to the obligations of the Special Servicer under this Agreement and to act as
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the Special Servicer’s successor hereunder. No penalty or fee shall be payable to the terminated Special Servicer with respect to any termination pursuant to this Section 6.08(b).
(c) In no event may a successor Special Servicer be a current or former Operating Advisor or any Affiliate of such current or former Operating Advisor. Further, such successor must be a Person that (i) satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement and, in the case of a Serviced Whole Loan, in the related Co-Lender Agreement, (ii) is not obligated or allowed to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement or (y) for the appointment of the successor Special Servicer or the recommendation by the Operating Advisor for the replacement Special Servicer to become the Special Servicer, (iii) is not entitled to waive any compensation from the Operating Advisor and (iv) is not entitled to receive any fee from the Operating Advisor for its appointment as successor Special Servicer, in each case, unless expressly approved by 100% of the Certificateholders.
(d) The appointment of any such successor Special Servicer shall not relieve the Master Servicer or the Trustee of their respective obligations to make Advances as set forth herein; provided, however, that the initial Special Servicer specified in Section 3.21(a) of this Agreement shall not be liable for any actions or any inaction of such successor Special Servicer. Any termination fee payable to the terminated Special Servicer and any costs incurred by the Trust or the terminated Special Servicer in connection with the replacement of a Special Servicer shall be paid by the Controlling Class Representative, Certificateholders or Companion Loan Holder so terminating the Special Servicer and shall not in any event be an expense of the Trust Fund.
(e) No termination of the Special Servicer and appointment of a successor Special Servicer shall be effective until (i) the successor Special Servicer shall have executed and delivered to the Trustee and the Certificate Administrator an agreement which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Special Servicer under this Agreement from and after the date of such agreement and (ii) subject to Section 11.13 of this Agreement, each Rating Agency has delivered to the Trustee and the Certificate Administrator a Rating Agency Confirmation and, if required pursuant to Section 6.08(a), each Companion Loan Rating Agency has delivered to the Trustee and the Certificate Administrator and their respective counterparts with respect to the Other Securitization Trust a Companion Loan Rating Agency Confirmation, in each case with respect to such termination and appointment of a successor.
(f) Any successor Special Servicer shall be deemed to make the representations and warranties provided for in Section 2.06(a) of this Agreement mutatis mutandis as of the date of its succession.
(g) For so long as the related Subordinate Companion Loan Holder is the Whole Loan Directing Holder with respect to the AB Whole Loan or any related REO Property, the related Whole Loan Directing Holder or its designee will have the right to terminate and replace the Special Servicer with respect to the AB Whole Loan or any related REO Property, with or without cause, in accordance with the related Co-Lender Agreement, subject to the satisfaction of the conditions set forth in Section 6.08(e) of this Agreement. For so long as the
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related Subordinate Companion Loan Holder is the Whole Loan Directing Holder with respect to the AB Whole Loan or any related REO Property, Section 6.08(a) and Section 6.08(b) of this Agreement shall not apply to any termination or replacement of the Special Servicer with respect to the AB Whole Loan or any related REO Property, unless the Certificate Administrator and Trustee have each received an executed copy of the Whole Loan Directing Holder’s written consent to any such termination and replacement.
(h) Prior to the WPC Department Store Portfolio Securitization Date, the WPC Department Store Portfolio Directing Holder or its designee will have the right to terminate and replace the Special Servicer with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, with or without cause, in accordance with the related Co-Lender Agreement, subject to the satisfaction of the conditions set forth in Section 6.08(e) of this Agreement. Prior to the WPC Department Store Portfolio Securitization Date, Section 6.08(a) and Section 6.08(b) of this Agreement shall not apply to any termination or replacement of the Special Servicer with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, unless the Certificate Administrator and Trustee have each received an executed copy of the WPC Department Store Portfolio Directing Holder’s written consent to any such termination and replacement.
(i) In the event that the Special Servicer is terminated pursuant to this Section 6.08, the Trustee shall, by notice in writing to the Special Servicer, terminate all of its rights and obligations under this Agreement and in and to the Mortgage Loans and the Serviced Whole Loans and the proceeds thereof, other than any rights the Special Servicer may have hereunder as a Certificateholder and any rights or obligations that accrued prior to the date of such termination (including without limitation the right to receive all amounts accrued or owing to it under this Agreement, plus interest at the Advance Rate on such amounts until received to the extent such amounts bear interest as provided in this Agreement, with respect to periods prior to the date of such termination and the right to the benefits of Section 6.03 of this Agreement and the right to receive ongoing Workout Fees in accordance with the terms hereof).
(j) If a replacement special servicer is appointed with respect to a Serviced Whole Loan or any related REO Property in accordance with Article VII such that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer hereunder or the performance of such duties and obligations, the term “Special Servicer” shall mean the applicable Serviced Whole Loan Special Servicer, insofar as such duties and obligations relate to the subject Serviced Whole Loan or any related REO Property, and shall mean the General Special Servicer (as defined below in subsection (i)), in all other cases (provided that in Section 3.15 and Article VII of this Agreement, the term “Special Servicer” shall mean each of the Serviced Whole Loan Special Servicer and the General Special Servicer); (ii) when used in the context of identifying the recipient of any information, funds, documents, instruments and/or other items, the term “Special Servicer” shall mean the applicable Serviced Whole Loan Special Servicer, insofar as such information, funds, documents, instruments and/or other items relate to the subject Serviced Whole Loan or any related REO Property, and shall mean the General Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase all of the Mortgage Loans and all other property held by the Trust Fund pursuant to Section 9.01 of this Agreement, the term “Special Servicer” shall
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mean the General Special Servicer only; (iv) when used in the context of the Special Servicer being replaced pursuant to this Section 6.08 by the Controlling Class Representative or the applicable Certificateholders the term “Special Servicer” shall mean the General Special Servicer or the applicable Serviced Whole Loan Special Servicer, if applicable; (v) when used in the context of granting the Special Servicer any protections, limitations on liability, immunities and/or indemnities hereunder, the term “Special Servicer” shall mean each of the Serviced Whole Loan Special Servicer and the General Special Servicer; and (vi) when used in the context of requiring indemnification from, imposing liability on, or exercising any remedies against, the Special Servicer for any breach of a representation, warranty or covenant hereunder or for any negligence, bad faith or willful misconduct in the performance of duties and obligations hereunder or any negligent disregard of such duties and obligations or otherwise holding the Special Servicer responsible for any of the foregoing, the term “Special Servicer” shall mean the applicable Serviced Whole Loan Special Servicer or the General Special Servicer, as applicable.
(k) References in this Agreement to “General Special Servicer” mean the Person performing the duties and obligations of special servicer with respect to the Mortgage Loans(exclusive of any Serviced Whole Loan or related REO Property as to which a different Serviced Whole Loan Special Servicer has been appointed with respect thereto).
Section 6.09 The Controlling Class Representative.
(a) Other than with respect to the Charles River Plaza North Whole Loan prior to any Whole Loan Control Appraisal Event and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative shall be entitled to (1) advise the Special Servicer with respect to all Specially Serviced Loans, (2) advise the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer for a Major Decision, and (3) with respect to any Non-Serviced Mortgage Loan, exercise consultation and consent rights (if any) and attend annual meetings with an Other Master Servicer and an Other Special Servicer, in each case, to the extent the holder of a Non-Serviced Mortgage Loan is entitled to such rights pursuant to the related Co-Lender Agreement. In addition, notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to Section 6.09(b) and the second and third paragraphs of this Section 6.09(a), both (a) in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decision, the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer, who shall have 15 Business Days (or 60 days with respect to the determination of an Acceptable Insurance Default) (from the date that the Special Servicer receives the information from the Master Servicer) to analyze and make a recommendation regarding such Major Decision (subject, however, to the right of the Special Servicer to process such Major Decision directly pursuant to Section 3.09 or Section 3.24) (provided that, in the event that the Special Servicer and the Master Servicer have mutually agreed pursuant to Section 3.24 that the Master Servicer shall determine and process the request with respect to such Major Decisions, if the Special Servicer does not consent, or notify the Master Servicer that it will not consent, to such Major Decision within the required 15 Business Days or 60 days, as applicable, the Special Servicer shall be deemed to have consented
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to such Major Decision) and (b) for so long as no Control Termination Event has occurred and is continuing, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, twenty (20) days) after receipt of the written recommendation and analysis from the Special Servicer; provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day period or twenty (20) day period, as applicable, then the Controlling Class Representative will be deemed to have approved such action; provided, further, that, in the event that the Special Servicer or Master Servicer, as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative prior to the occurrence and continuance of a Control Termination Event in this Agreement, is necessary to protect the interests of the Certificateholders and, with respect to any Serviced Whole Loan (if applicable), the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) constituted a single lender) (and, in the case of the Charles River Plaza North Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s (but only with respect to a non-Specially Serviced Loan)) response. The Special Servicer is not required to obtain the consent of the Controlling Class Representative for any Major Decision following the occurrence and during the continuance of a Control Termination Event; provided that, after the occurrence and during the continuance of a Control Termination Event, the Special Servicer shall consult with the Controlling Class Representative (until the occurrence and continuance of a Consultation Termination Event) and the Operating Advisor in connection with any Major Decision and consider alternative actions recommended by the Controlling Class Representative and the Operating Advisor, but only to the extent such consultation with, or consent of, the Controlling Class Representative would have been required prior to the occurrence and continuance of such Control Termination Event; provided that such consultation is not binding on the Special Servicer.
In addition, other than with respect to the Charles River Plaza North Whole Loan, prior to any Whole Loan Control Appraisal Event, and the WPC Department Store Portfolio Whole Loan, prior to the WPC Department Store Portfolio Securitization Date, for so long as no Control Termination Event has occurred and is continuing, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan or Serviced Whole Loan, as applicable, as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no objection contemplated by the preceding paragraph or this paragraph, may require or cause the Master Servicer or the Special Servicer to violate any provision of any Mortgage Loan Documents, applicable law, any related Co-Lender Agreement or any intercreditor agreement, this Agreement or the REMIC Provisions, including without limitation each of the Master Servicer’s and the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust or the Trustee to liability, or materially expand the scope of the Master Servicer’s or the Special Servicer’s
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responsibilities hereunder or cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner which in the reasonable judgment of the Master Servicer or the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders.
In the event the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan Documents, the intercreditor agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify in writing the Controlling Class Representative, the Trustee and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, of any action by the Master Servicer or the Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any law or the Servicing Standard or any other provisions of this Agreement, any related Co-Lender Agreement or any intercreditor agreement will not result in any liability on the part of the Master Servicer or the Special Servicer.
The Controlling Class Representative will have no liability to the Trust Fund or the Certificateholders for any action taken, or for refraining from the taking of any action, pursuant to this Agreement, or for error in judgment; provided, however, that the Controlling Class Representative will not be protected against any liability to any Controlling Class Certificateholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations or duties.
By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that: (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Controlling Class Representative may act solely in the interests of the Holders of the Controlling Class; (iii) the Controlling Class Representative does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class; (iv) the Controlling Class Representative may take actions that favor interests of the Holders of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Controlling Class Representative shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted as set forth in clauses (i)-(iv) of this paragraph, and no Certificateholder may take any action whatsoever against the Controlling Class Representative or any affiliate, director, member, officer, employee, shareholder, member, partner, agent or principal thereof for having so acted; provided, however, that, in the case of a Serviced Whole Loan, the rights of the Controlling Class Representative are subject to the related Co-Lender Agreement.
Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust Fund or the Certificateholders for
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any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Other Pooling and Servicing Agreement including the holders of the controlling class under such Other Pooling and Servicing Agreement over other Classes of the Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the holders of the controlling class under the related Other Pooling and Servicing Agreement, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything to the contrary contained herein: (i) the Controlling Class Representative shall have no right to consent to any action taken or not taken by any party to this Agreement, after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, the Master Servicer, Special Servicer and any other applicable party shall consult with the Controlling Class Representative in connection with any action to be taken or refrained from taking to the extent it would have been required to obtain the consent of the Controlling Class Representative but for the occurrence of a Control Termination Event set forth herein; (iii) after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; (iv) in the case of the AB Whole Loan, for so long as the related Subordinate Companion Loan Holder is the related Whole Loan Directing Holder, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the AB Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related Whole Loan Directing Holder; and (v) in the case of the WPC Department Store Portfolio Whole Loan, the Controlling Class Representative will not be entitled to exercise any of the rights in this Section 6.09 with respect to the WPC Department Store Portfolio Whole Loan or any related REO Property, and instead all such rights, in addition to any other rights provided for under the related Co-Lender Agreement, shall be exercised by the related WPC Department Store Portfolio Directing Holder.
(c) Notwithstanding anything to the contrary herein, neither the Master Servicer nor the Special Servicer shall take or refrain from taking any action pursuant to instructions or based upon advice from a Whole Loan Directing Holder or Companion Loan
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Holder that would cause any one of them to violate applicable law, the terms of the related Serviced Whole Loan, the related Co-Lender Agreement, this Agreement, including the Servicing Standard, or the REMIC Provisions or that would (i) expose the Master Servicer, the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the Trustee, the Operating Advisor, the Certificate Administrator or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, (ii) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities, or (iii) cause the Master Servicer or the Special Servicer to act, or fail to act, in a manner that is not in the best interests of the Certificateholders or the Servicing Standard.
(d) Each Certificateholder and Beneficial Owner of a Control Eligible Certificate is hereby deemed to have agreed by virtue of its purchase of such Certificate (or beneficial ownership interest in such Certificate) to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Control Eligible Certificate (or the beneficial ownership of any Control Eligible Certificate), the selection of a Controlling Class Representative or the resignation or removal thereof. Any such Certificateholder (or Beneficial Owner) or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Control Eligible Certificate (or the beneficial ownership interest in a Control Eligible Certificate) to notify the Certificate Administrator when such Certificateholder (or Beneficial Owner) or designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Special Servicer, the Master Servicer, the Operating Advisor and the Trustee of the identity of the Controlling Class Representative, any resignation or removal thereof and/or any new Holder or Beneficial Owner of a Control Eligible Certificate. In addition, upon the request (which may be by email) of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, the Certificate Administrator shall provide (on a reasonably prompt basis) the identity of each Companion Loan Holder, the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the Trust if such expense arises in connection with an event as to which the Controlling Class Representative or the Controlling Class has consent or consultation rights pursuant to this Agreement or in connection with a request made by the Operating Advisor in connection with its obligation under Section 3.28(d)(ii) of this Agreement to deliver a copy of the Operating Advisor Annual Report to the Controlling Class Representative, and otherwise at the expense of the requesting party) of the Controlling Class to such requesting party, and each of the Master Servicer, Special Servicer, Operating Advisor and the Trustee shall be entitled to rely on such information so provided by the Certificate Administrator and shall be entitled to assume that the identity of the Controlling Class Representative has not changed absent notice of a replacement of the Controlling Class Representative by a majority of the Controlling Class, or the resignation of the then-current Controlling Class Representative.
In the event of a change in the Controlling Class, the Certificate Administrator shall promptly contact RREF II CMBS AIV, LP, or, if applicable, any successor Controlling Class Representative or Controlling Class Certificateholder(s), and determine whether such entity is the Holder (or Beneficial Owner) of at least a majority of the Controlling Class (in effect after such change in Controlling Class) by Certificate Principal Balance. If at any time that RREF II CMBS AIV, LP or any successor Controlling Class Representative or Controlling Class
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Certificateholder(s) is no longer the Holder (or Beneficial Owner) of at least a majority of the Controlling Class by Certificate Principal Balance and the Certificate Administrator has neither (i) received notice of the then-current Controlling Class Certificateholders of at least a majority of the Controlling Class by Certificate Principal Balance nor (ii) received notice of a replacement Controlling Class Representative pursuant to this Agreement, then a Control Termination Event and a Consultation Termination Event shall both be deemed to have occurred and shall be deemed to continue until such time as the Certificate Administrator receives either such notice. The Certificate Administrator shall promptly notify the Master Servicer and the Special Servicer of the occurrence of a deemed Control Termination Event and/or a deemed Consultation Termination Event in accordance with the immediately preceding sentence.
Upon receipt of notice of a change in Controlling Class Representative, the Certificate Administrator shall promptly forward notice thereof to each other party to this Agreement.
(e) Once a Controlling Class Representative has been selected pursuant to clause (c) above, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless a majority of the Certificateholders of the Controlling Class, by Certificate Principal Balance, or such Controlling Class Representative shall have notified the Certificate Administrator, the Master Servicer and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative. Upon receipt of written notice of, or other knowledge of, the resignation of a Controlling Class Representative, the Certificate Administrator shall request the Certificateholders of the Controlling Class to select a new Controlling Class Representative.
(f) If at any time a book-entry certificate belongs to the Controlling Class, the Certificate Administrator shall notify the related Beneficial Owner or Beneficial Owners (through the Depository, unless the Certificate Administrator shall have been previously provided with the name and address of such Beneficial Owner or Beneficial Owners) of such event and shall request that it be informed of any change in the identity of the related Beneficial Owner from time to time.
(g) Until it receives notice to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor and the Trustee and the Certificate Administrator shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
(h) Notwithstanding anything to the contrary contained herein at any time when the Class F Certificates is the Controlling Class, the Holder of more than 50% of the Controlling Class Certificates (by Certificate Principal Balance) may waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or cause the exercise of any of the rights of the Controlling Class Representative set forth in this Agreement, by irrevocable written notice delivered to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor (any such Holder or group of affiliated Holders that makes such an election, the
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“Opting-Out Party”). Any such waiver shall remain effective, and a Control Termination Event and a Consultation Termination Event shall be deemed to exist, with respect to such Holder and such Class until such time as the Opting-Out Party has (i) sold a majority of the Class F Certificates (by outstanding Certificate Principal Balance) to an unaffiliated third party and (ii) certified to the Depositor, Certificate Administrator, Trustee, Master Servicer, Special Servicer and Operating Advisor that (a) the Opting-Out Party retains no direct or indirect voting rights with respect to the Class F Certificates that it does not own, (b) there is no voting agreement between the Opting-Out Party and the transferee and (c) the Opting-Out Party retains no direct or indirect economic interest in the Class F Certificates (such sale and certification, a “Class F Transfer”). Following any such Class F Transfer, the successor holder of more than 50% of the Class F Certificates (by outstanding Certificate Principal Balance), if the Class F Certificates are the Controlling Class Certificates, shall again have the rights of the Controlling Class Representative as set forth herein (including the rights to appoint a Controlling Class Representative or cause the exercise of the rights of the Controlling Class Representative) without regard to any prior waiver by the predecessor Certificateholder. Such successor Certificateholder shall also have the right as provided in this Section 6.09(h) to irrevocably waive its right to act as or appoint a Controlling Class Representative and to exercise any of the rights of the Controlling Class Representative or to cause the exercise of any of the rights of the Controlling Class Representative as set forth in this Agreement. No such successor Certificateholder described above in this paragraph shall have any consent rights with respect to any Mortgage Loan that became a Specially Serviced Loan prior to the Class F Transfer and had not also become a Corrected Mortgage Loan prior to such Class F Transfer until such time as such Mortgage Loan becomes a Corrected Mortgage Loan.
ARTICLE
VII
DEFAULT
Section 7.01 Servicer Termination Events.
(a) “Servicer Termination Event,” wherever used herein, means any one of the following events:
(i) (A) any failure by the Master Servicer to make any deposit or payment required to be made by the Master Servicer to the Collection Account or any Serviced Whole Loan Custodial Account or make a required remittance to any Serviced Companion Loan Holder on the day and by the time such deposit or remittance is required to be made under the terms of this Agreement, which failure is not remedied within one (1) Business Day or (B) any failure by the Master Servicer to deposit into, or remit to the Certificate Administrator for deposit into, any Distribution Account any amount required to be so deposited or remitted, which failure is not remedied by 11:00 a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into any REO Account within two (2) Business Days after such deposit is required to be made, or to remit to the Master Servicer for deposit into the Collection Account, or any Serviced Whole Loan Custodial Account, as applicable, any amount required to be so deposited or remitted by
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the Special Servicer pursuant to, and within one (1) Business Day after the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special Servicer, as applicable, duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement which failure continues unremedied for a period of 30 days (10 days in the case of the Master Servicer’s failure to make a Property Advance or 20 days in the case of a failure to pay the premium for any insurance policy required to be maintained under this Agreement or such shorter period (not less than two (2) Business Days) as may be required to avoid the commencement of foreclosure proceedings for unpaid real estate taxes or the lapse of insurance, as applicable) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer or the Special Servicer, as the case may be, by any other party hereto, or to the Master Servicer or the Special Servicer, as the case may be, with a copy to each other party to this Agreement, by the Holders of Certificates of any Class evidencing, as to such Class, not less than 25% of the Voting Rights allocable to such Class or, if affected thereby, by a Serviced Companion Loan Holder; provided, however, that if any such failure is capable of being cured and the Master Servicer or Special Servicer, as applicable, is diligently pursuing such cure, the 30-day cure period will be extended an additional 60 days; provided that the Master Servicer, or Special Servicer, as applicable, has commenced to cure such failure within the initial 30-day period and has certified that it has diligently pursued, and is continuing to pursue, a full cure; or
(iv) any breach on the part of the Master Servicer or the Special Servicer of any representation or warranty contained in this Agreement, which materially and adversely affects the interests of any Class of Certificateholders or any Serviced Companion Loan Holder, as applicable, and which continues unremedied for a period of 30 days after the date on which notice of such breach, requiring the same to be remedied, has been given to the Master Servicer or the Special Servicer, as the case may be, by the Depositor, the Certificate Administrator or the Trustee, or to the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee by the Holders of Certificates entitled to not less than 25% of the Voting Rights or, if affected thereby, by a Serviced Companion Loan Holder; provided, however, that if such breach is capable of being cured and the Master Servicer or Special Servicer, as applicable, is diligently pursuing such cure, such 30-day period will be extended an additional 60 days; provided that the Master Servicer, or Special Servicer, as applicable, has commenced to cure such failure within the initial 30-day period and has certified that it has diligently pursued, and is continuing to pursue, a full cure; or
(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer or the
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Special Servicer, as applicable, and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of 60 days; or
(vi) the Master Servicer or the Special Servicer, as applicable, shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Master Servicer or the Special Servicer or of or relating to all or substantially all of its property; or
(vii) the Master Servicer or the Special Servicer, as applicable, shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing; or
(viii) either Moody’s or KBRA has (i) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of Serviced Companion Loan Securities, or (ii) placed one or more Classes of Certificates or one or more classes of Serviced Companion Loan Securities on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (i) or (ii), publicly citing servicing concerns with the Master Servicer or any Special Servicer, as applicable, as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by such Rating Agency, within 60 days of such event); or
(ix) a servicing officer of the Master Servicer obtains knowledge that the Master Servicer has ceased to have a commercial master servicer rating of at least “CMS3” from Fitch and that rating is not reinstated within 60 days or, with respect to any Special Servicer, a servicing officer of the Special Servicer obtains knowledge that the Special Servicer has ceased to have a commercial special servicer rating of at least “CSS3” from Fitch and that rating is not reinstated within 60 days, as the case may be; or
(x) a servicing officer of the Master Servicer or the Special Servicer, as applicable, obtains knowledge that the Master Servicer or the Special Servicer, as applicable, has failed to maintain a ranking by Morningstar equal to or higher than “MOR CS3” as a master servicer or special servicer, as applicable, and the Master Servicer or the Special Servicer, as applicable, is not reinstated to that ranking within 60 days (provided that if Morningstar has not issued a ranking with respect to such Master Servicer or Special Servicer, as applicable, then the following shall constitute a Servicer Termination Event: such Master Servicer or Special Servicer, as applicable, was acting as master servicer or special servicer, as applicable, in a commercial mortgage loan securitization that was rated by a Rating Agency within the 12-month period prior to the date of determination (or, in the case of the initial Master Servicer or the initial Special Servicer, as applicable, prior to the Closing Date), and Morningstar has (i) qualified, downgraded or withdrawn its ratings of one or more Classes of Certificates or any class of Serviced Companion Loan Securities, or (ii) placed one or more Classes of Certificates or classes of Serviced Companion Loan Securities on “watch status” in contemplation of
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rating downgrade or withdrawal and, in the case of either clauses (i) or (ii), publicly citing servicing concerns with the Master Servicer or the Special Servicer, as applicable, as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by Morningstar within 60 days of such event)); or
(xi) the Master Servicer or the Special Servicer, as applicable, or any primary servicer or Sub-Servicer appointed by the Master Servicer or the Special Servicer after the Closing Date (but excluding any Sub-Servicer set forth on Exhibit S), shall fail to deliver during any period in which the Trust or the Other Securitization Trust is subject to the reporting requirements of the Exchange Act the items required to be delivered by this Agreement by the time required under Article X after any applicable grace periods (any primary servicer or Sub-Servicer that defaults in accordance with this Section 7.01(a)(xi) shall be terminated at the direction of the Depositor);
then, and in each and every such case, so long as a Servicer Termination Event is continuing and shall not have been remedied, either (i) the Trustee may or (ii) upon the written direction of the Holders of Certificates evidencing at least 25% of the aggregate Voting Rights of all Certificates (or, solely in the case of the related Serviced Whole Loan, at the direction of an affected Serviced Companion Loan Holder) to the Trustee, then the Trustee shall terminate the Master Servicer or the Special Servicer, as applicable. Notwithstanding anything to the contrary, it shall not be a Servicer Termination Event with respect to the pool of Mortgage Loans under clauses (i), (ii), (iii), (iv), (viii), (ix), (x) or (xi) above if the failure, default or event only has an adverse effect on a Serviced Companion Loan, a Serviced Companion Loan Holder or a rating on any Serviced Companion Loan Securities, but shall be a Servicer Termination Event with respect to the related Serviced Companion Loan and any related Serviced Companion Loan Holder shall: (i) in the case of any such failure, default or event on the part of the Master Servicer, have the remedies set forth in Section 7.01(d) with respect to the Servicer Termination Event with respect to the related Serviced Companion Loan; and (ii) with respect to any such failure, default or event on the part of the Special Servicer, be able to require termination of the Special Servicer with respect to, but only with respect to, the related Serviced Whole Loan.
In the event that the Master Servicer is also the Special Servicer and the Master Servicer is terminated as provided in this Section 7.01, the Master Servicer shall also be terminated as Special Servicer.
(b) If the Master Servicer receives notice of termination under Section 7.01(c) solely due to a Servicer Termination Event under Section 7.01(a)(viii), Section 7.01(a)(ix) or Section 7.01(a)(x) and if the Master Servicer to be terminated pursuant to Section 7.01(c) provides the Trustee with the appropriate “request for proposal” materials within five (5) Business Days following such termination notice, then the Master Servicer shall continue to service as Master Servicer hereunder until a successor Master Servicer is selected in accordance with this Section 7.01(b). Upon receipt of the “request for proposal” materials, Trustee shall promptly thereafter (using such “request for proposal” materials provided by the Master Servicer pursuant to Section 7.01(c)) solicit good faith bids for the rights to service the Mortgage Loans and the Serviced Whole Loans under this Agreement from at least three (3) Persons qualified to act as a successor Master Servicer hereunder in accordance with Section 6.02 (any such Person
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so qualified, a “Qualified Bidder”) or, if three (3) Qualified Bidders cannot be located, then from as many persons as the Trustee can determine are Qualified Bidders; provided that the Master Servicer shall supply the Trustee with the names of Persons from whom to solicit such bids; and provided, further, that the Trustee shall not be responsible if less than three (3) or no Qualified Bidders submit bids for the right to service the Mortgage Loans under this Agreement. The offer proposal shall require any Successful Bidder (as defined below), as a condition of such offer, to enter into this Agreement as successor Master Servicer, and to agree to be bound by the terms hereof, within 45 days after the notice of termination of the Master Servicer. The Trustee shall select the Qualified Bidder with the highest cash offer (the “Successful Bidder”) to act as successor Master Servicer hereunder; provided, however, that if the Trustee does not receive a Rating Agency Confirmation from each Rating Agency within 10 days after the selection of such Successful Bidder, then the Trustee shall repeat the offer process described above (but subject to the above-described 45-day time period) until such confirmation is obtained. The Trustee shall request the Successful Bidder to enter into this Agreement as successor Master Servicer pursuant to the terms hereof no later than 45 days after notice of the termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights hereunder (subject to the terms of Section 3.12 of this Agreement) to and by the Successful Bidder, the Trustee shall remit or cause to be remitted to the Master Servicer to be terminated pursuant to Section 7.01(c) of this Agreement, the amount of such cash offer received from the Successful Bidder (net of “out-of-pocket” expenses incurred in connection with obtaining such offer and transferring servicing).
The Master Servicer to be terminated pursuant to Section 7.01(c) of this Agreement shall be responsible for all out-of-pocket expenses incurred in connection with the attempt to sell its rights to service the Mortgage Loans and the Serviced Whole Loans, which expenses are not reimbursed to the party that incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as successor Master Servicer within the above-described time period or no Successful Bidder was identified within the above-described time period, the Master Servicer to be terminated pursuant to Section 7.01(c) shall reimburse the Trustee for all reasonable “out-of-pocket” expenses incurred by the Trustee in connection with such offer process and the Trustee shall have no further obligations under this Section 7.01(b). The Trustee thereafter may act or may select a successor to act as Master Servicer hereunder in accordance with Section 7.02.
(c) In the event that the Master Servicer or the Special Servicer is terminated pursuant to this Section 7.01, the Trustee shall, by notice in writing to the Master Servicer or the Special Servicer, as the case may be (the “Terminated Party”), terminate all of its rights and obligations under this Agreement and in and to the Mortgage Loans and Serviced Whole Loans and the proceeds thereof, other than any rights the Master Servicer or Special Servicer may have hereunder as a Certificateholder and any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued or owing to it under this Agreement, plus interest at the Advance Rate on such amounts until received to the extent such amounts bear interest as provided in this Agreement, with respect to periods prior to the date of such termination and the right to the benefits of Section 6.03 and subsection (b) above
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notwithstanding any such termination). On or after the receipt by the Terminated Party of such written notice, all of its authority and power under this Agreement, whether with respect to the Certificates (except that the Terminated Party shall retain its rights as a Certificateholder in the event and to the extent that it is a Certificateholder) or the Mortgage Loans and Serviced Whole Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Terminated Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and Serviced Whole Loans and related documents, or otherwise. The Master Servicer and the Special Servicer each agrees that, in the event it is terminated pursuant to this Section 7.01, to promptly (and in any event no later than ten Business Days subsequent to such notice) provide, at its own expense, the Trustee (or the successor Master Servicer selected by the Trustee pursuant to Section 7.01(b) of this Agreement or the successor Master Servicer or Special Servicer, as applicable, otherwise appointed pursuant to Section 7.02 of this Agreement) with all documents and records requested by the Trustee (or the successor Master Servicer selected by the Trustee pursuant to Section 7.01(b) of this Agreement or the successor Master Servicer or Special Servicer, as applicable, otherwise appointed pursuant to Section 7.02 of this Agreement) to enable the Trustee or other successor to its responsibilities hereunder to assume its functions hereunder, and to cooperate with the Trustee and the successor to its responsibilities hereunder in effecting the termination of its responsibilities and rights hereunder, including, without limitation, the transfer to the successor Master Servicer or successor Special Servicer or the Trustee, as applicable, for administration by it of all cash amounts which shall at the time be or should have been credited by the Master Servicer or the Special Servicer to the Collection Account, any Serviced Whole Loan Custodial Account, any REO Account or Lockbox Account shall thereafter be received with respect to the Mortgage Loans and Serviced Whole Loans, and shall promptly provide the Trustee or such successor Master Servicer or Special Servicer (which may include the Trustee), as applicable, all documents and records reasonably requested by it, such documents and records to be provided in such form as the Trustee or such successor Master Servicer or Special Servicer shall reasonably request (including electromagnetic form), to enable it to assume the Master Servicer’s or Special Servicer’s function hereunder. All reasonable costs and expenses actually incurred by the Trustee, the Certificate Administrator or the successor Master Servicer or successor Special Servicer in connection with transferring Mortgage Files, Servicing Files and related information, records and reports to the successor Master Servicer or Special Servicer and amending this Agreement to reflect (as well as providing appropriate notices to Mortgagors, ground lessors, insurers and other applicable third parties regarding) such succession as successor Master Servicer or successor Special Servicer pursuant to this Section 7.01 shall be paid by the predecessor Master Servicer or the Special Servicer, as applicable, upon presentation of reasonable documentation of such costs and expenses. If the predecessor Master Servicer or Special Servicer (as the case may be) has not reimbursed the Trustee, the Certificate Administrator or the successor Master Servicer or Special Servicer for such expenses within 90 days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust Fund; provided that the Terminated Party shall not thereby be relieved of its liability for such expenses.
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(d) Notwithstanding Section 7.01(a) and Section 7.01(c), if (1) any Servicer Termination Event on the part of the Master Servicer affects a Serviced Companion Loan, the related Serviced Companion Loan Holder or the rating on a Class of the related Serviced Companion Loan Securities, and the Master Servicer is not otherwise terminated in accordance with Section 7.01(c), or (2) a Servicer Termination Event on the part of the Master Servicer affects only a Serviced Companion Loan, the related Serviced Companion Loan Holder or the rating on a Class of Serviced Companion Loan Securities, then the Master Servicer may not be terminated in accordance with Section 7.01(c), but, upon the written direction of the Serviced Companion Loan Holder, the Master Servicer will be required to appoint, within 30 days of such direction, a sub-servicer (or, if any Serviced Whole Loan is currently being sub-serviced, to replace, within 30 days of the Trustee’s request, the then-current sub-servicer with a new sub-servicer). In connection with the Master Servicer’s appointment of any sub-servicer at the direction of a Companion Loan Holder in accordance with this Section 7.01(d), the Master Servicer shall obtain at its own expense a Companion Loan Rating Agency Confirmation from each Companion Loan Rating Agency, which shall be delivered and addressed to the related Companion Loan Holder and to the Trustee. The related sub-servicing agreement shall provide that any sub-servicer appointed by the Master Servicer at the direction of a Companion Loan Holder in accordance with this Section 7.01(d) shall be responsible for all duties, and shall be entitled to all compensation (other than the Excess Servicing Fee Right), of the Master Servicer under this Agreement with respect to the related Serviced Whole Loan, except that the Master Servicer shall be entitled to retain a portion of the Servicing Fee for the Mortgage Loan that is part of the related Serviced Whole Loan calculated at 0.0% per annum with respect to such Mortgage Loan (and any related REO Mortgage Loan). Such sub-servicing agreement (a) may be terminated without cause and without payment of any fee and (b) shall also provide that such sub-servicer shall agree to become the master servicer under a separate servicing agreement for the applicable Serviced Whole Loan in the event that any Serviced Whole Loan is no longer to be serviced and administered hereunder, which separate servicing agreement shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that the applicable Serviced Whole Loan and the related Mortgaged Properties shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. If any sub-servicer appointed by the Master Servicer at the direction of a Companion Loan Holder in accordance with this Section 7.01(d) shall at any time resign or be terminated, the Master Servicer shall be required to promptly appoint a substitute sub-servicer and obtain a Rating Agency Confirmation. In the event a successor Master Servicer is acting hereunder and that successor Master Servicer desires to terminate the sub-servicer appointed under this Section 7.01(d), the terminated Master Servicer that was responsible for the Servicer Termination Event that led to the appointment of such sub-servicer shall be responsible for all costs incurred in connection with such termination, including the payment of any termination fee.
(e) If the Trustee, the Certificate Administrator or the Master Servicer has received notice from Moody’s, Fitch, KBRA or Morningstar that the Master Servicer no longer is an approved master servicer then such party shall promptly notify the others and the Special Servicer, and the Certificate Administrator shall notify the related Companion Loan Holder of the same.
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Section 7.02 Trustee to Act; Appointment of Successor. On and after the time the Master Servicer or the Special Servicer receives a notice of termination pursuant to Section 7.01, the Trustee shall, subject to the following provisions of this Section 7.02, be its successor in all respects in its capacity as Master Servicer or Special Servicer under this Agreement and the transactions set forth or provided for herein and, except as provided herein, shall be subject to all the responsibilities, duties, limitations on liability and liabilities relating thereto and arising thereafter placed on the Master Servicer or Special Servicer by the terms and provisions hereof; provided, however, that (i) the Trustee shall have no responsibilities, duties, liabilities or obligations with respect to any act or omission of the Master Servicer or Special Servicer and (ii) any failure to perform, or delay in performing, such duties or responsibilities caused by the Terminated Party’s failure to provide, or delay in providing, records, tapes, disks, information or moneys shall not be considered a default by such successor hereunder. The Trustee, as successor Master Servicer or successor Special Servicer, shall be indemnified to the full extent provided the Master Servicer or Special Servicer, as applicable, under this Agreement prior to the Master Servicer’s or the Special Servicer’s termination. The appointment of a successor Master Servicer or successor Special Servicer shall not affect any liability of the predecessor Master Servicer or Special Servicer which may have arisen prior to its termination as Master Servicer or Special Servicer. The Trustee shall not be liable for any of the liabilities, representations and warranties of the Master Servicer or Special Servicer herein or in any related document or agreement, for any acts or omissions of the predecessor Master Servicer or predecessor Special Servicer or for any losses incurred in respect of any Permitted Investment by the Master Servicer pursuant to Section 3.07 of this Agreement nor shall the Trustee be required to purchase any Mortgage Loan or Serviced Whole Loan hereunder. As compensation therefor, the Trustee (or any other successor Master Servicer or Special Servicer assuming the obligations of the Master Servicer or the Special Servicer, as applicable) as successor Master Servicer or successor Special Servicer shall be entitled to the Servicing Fee or Special Servicing Compensation, as applicable, and all funds relating to the Mortgage Loans and any related Serviced Companion Loans that accrue after the date of the Trustee’s succession to which the Master Servicer or Special Servicer would have been entitled if the Master Servicer or Special Servicer, as applicable, had continued to act hereunder. In the event any Advances made by the Master Servicer and the Trustee shall at any time be outstanding, or any amounts of interest thereon shall be accrued and unpaid, all amounts available to repay Advances and interest hereunder shall be applied entirely to the Advances made by the Trustee (and the accrued and unpaid interest thereon), until such Advances and interest shall have been repaid in full. Notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so act, or if the Holders of Certificates entitled to at least 25% of the aggregate Voting Rights so request in writing to the Trustee, or if the Rating Agencies do not provide Rating Agency Confirmations with respect to the Trustee so acting, promptly appoint, or petition a court of competent jurisdiction to appoint, an established mortgage loan servicing institution for which a Rating Agency Confirmation from each Rating Agency has been obtained (at the expense of the terminated Master Servicer or Special Servicer, as applicable, or, if the expense is not so recovered, at the expense of the Trust Fund), as the successor to the Master Servicer or Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer or Special Servicer hereunder; provided that, for so long as no Control Termination Event has occurred or is continuing the Controlling Class Representative shall have the right to approve any such successor Special Servicer. No appointment of a successor to the Master Servicer or Special
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Servicer hereunder shall be effective until the assumption by such successor of all the Master Servicer’s or Special Servicer’s responsibilities, duties and liabilities hereunder. Pending appointment of a successor to the Master Servicer (or the Special Servicer if the Special Servicer is also the Master Servicer) hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in such capacity as herein above provided. Pending the appointment of a successor to the Special Servicer, unless the Master Servicer is also the Special Servicer, the Master Servicer shall act in such capacity. In connection with such appointment and assumption described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans and Companion Loans as it and such successor shall agree; provided, however, that no such compensation shall be in excess of that permitted the Terminated Party hereunder; provided, further, that if no successor to the Terminated Party can be obtained to perform the obligations of such Terminated Party hereunder, additional amounts shall be paid to such successor and such amounts in excess of that permitted the Terminated Party shall be treated as Realized Losses; provided, further, that, for so long as no Consultation Termination Event has occurred and is continuing, the Trustee shall consult with the Controlling Class Representative prior to the appointment of a successor to the Terminated Party at such amounts in excess of that permitted the Terminated Party. The Depositor, the Trustee, the Master Servicer or Special Servicer and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
If the Trustee or an Affiliate acts pursuant to this Section 7.02 as successor to the terminated Master Servicer, it may reduce the Excess Servicing Fee Rate to the extent that the Trustee’s or such Affiliate’s compensation as successor Master Servicer would otherwise be below the market rate servicing compensation. If the Trustee elects to appoint a successor to the terminated Master Servicer other than itself or an Affiliate pursuant to this Section 7.02, it may reduce the Excess Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer that meets the requirements of this Section 7.02.
Notwithstanding anything to the contrary contained herein, if and for so long as the related Subordinate Companion Loan Holder is the Whole Loan Directing Holder for the AB Whole Loan or any related REO Property, any successor special servicer with respect to such AB Whole Loan or related REO Property appointed or otherwise designated pursuant to this Section 7.02 shall be subject to the approval of the related Whole Loan Directing Holder as required under the related Co-Lender Agreement. The appointment of any successor special servicer with respect to the WPC Department Store Portfolio Whole Loan (prior to the WPC Department Store Portfolio Companion Loan Securitization Date) is subject to the consent of the WPC Department Store Portfolio Directing Holder.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a successor to the Master Servicer or the Special Servicer, the Certificate Administrator shall give prompt written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register, to the Companion Loan Holders and electronically, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, to the Rule 17g-5 Information Provider.
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(b) Within 30 days after the occurrence of any Servicer Termination Event or Operating Advisor Termination Event of which a Responsible Officer of the Certificate Administrator has actual knowledge, the Certificate Administrator shall transmit by mail to all Holders of Certificates, any affected Companion Loan Holder (to the extent the Certificate Administrator has received the notice information for such Companion Loan Holder after a request therefor) and electronically, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, to the Rule 17g-5 Information Provider notice of such Servicer Termination Event or Operating Advisor Termination Event, unless such Servicer Termination Event or Operating Advisor Termination Event shall have been cured or waived.
Section 7.04 Other Remedies of Trustee. During the continuance of any Servicer Termination Event, so long as such Servicer Termination Event shall not have been remedied, the Trustee, in addition to the rights specified in Section 7.01, shall have the right, in its own name as trustee of an express trust, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies, of the Certificateholders and the Companion Loan Holders (including the institution and prosecution of all judicial, administrative and other proceedings and the filing of proofs of claim and debt in connection therewith). In such event, the legal fees, expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the defaulting Master Servicer or Special Servicer, as applicable. If the Master Servicer or Special Servicer, as applicable, fails to remedy, after the presentation of reasonable documentation, the Trustee shall be entitled to be reimbursed for such expenses, costs and liability from the Collection Account or the Serviced Whole Loan Custodial Account, as applicable, as provided in Section 3.06 and Section 3.06A of this Agreement; provided that the Master Servicer or the Special Servicer, as applicable, shall not be relieved of such liability for such expenses, costs and liabilities. Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Servicer Termination Event of the Master Servicer or the Special Servicer.
Section 7.05 Waiver of Past Servicer Termination Events and Operating Advisor Termination Events; Termination. The Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of the Certificates (and, if such Servicer Termination Event is on the part of a Special Servicer, with respect to a Serviced Whole Loan only, by each affected Serviced Companion Loan Holder) may, on behalf of all Holders of Certificates, waive any Servicer Termination Event on the part of the Master Servicer, Special Servicer or any Operating Advisor Termination Event on the part of the Operating Advisor in the performance of its obligations hereunder and its consequences, except a Servicer Termination Event in connection with making any required deposits (including, with respect to the Master Servicer, P&I Advances) to or payments from the Collection Account, a Serviced Whole Loan Custodial Account or the Lower-Tier Distribution Account or in remitting payments as received, in each case in accordance with this Agreement. Upon any such waiver of a past default, such default shall cease to exist, and any Servicer Termination Event or Operating Advisor Termination Event arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right
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consequent thereon. Any costs and expenses incurred by the Certificate Administrator in connection with such default and prior to such waiver shall be reimbursed by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, promptly upon demand therefor and if not reimbursed to the Certificate Administrator within 90 days of such demand, from the Trust Fund; provided that the Trust Fund shall be reimbursed by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, to the extent such amounts are reimbursed to the Certificate Administrator from the Trust Fund. Notwithstanding the foregoing, (a) a Servicer Termination Event under any of Section 7.01(a)(i) and Section 7.01(a)(ii) of this Agreement may be waived only with the consent of all of the Certificateholders of the affected Classes, and (b) a Servicer Termination Event under Section 7.01(a)(xi) of this Agreement may be waived only with the consent of the Depositor, together with (in the case of each of clauses (a) and (b)) the consent of each Serviced Companion Loan Holder, if any, that is affected by such Servicer Termination Event.
The foregoing paragraph notwithstanding, if the Holders representing at least the requisite percentage of the Voting Rights allocated to each affected Class of Certificates desire to waive a Servicer Termination Event by the Master Servicer, but a Companion Loan Holder related to a Serviced Whole Loan (if adversely affected thereby) does not wish to waive that Servicer Termination Event, then those Certificateholders may still waive that Servicer Termination Event, and the applicable Companion Loan Holder will be entitled to request that the Master Servicer appoint, within 60 days of the applicable Companion Loan Holder’s request, a sub-servicer (or, if the applicable Serviced Whole Loan is currently being subserviced, to replace, within 60 days of the applicable Companion Loan Holder’s request, the then-current sub-servicer with a new sub-servicer) with respect to the applicable Serviced Whole Loan. In connection with the Master Servicer’s appointment of a sub-servicer at the request of a Companion Loan Holder in accordance with this Section 7.05, the Master Servicer shall obtain a Rating Agency Confirmation from each Rating Agency at the expense of the Companion Loan Holder. The related sub-servicing agreement shall provide that any sub-servicer appointed by the Master Servicer at the request of a Companion Loan Holder in accordance with this Section 7.05 shall be responsible for all duties, and shall be entitled to all compensation (other than the Excess Servicing Fee Right), of the Master Servicer under this Agreement with respect to the applicable Serviced Whole Loan, except that the Master Servicer shall be entitled to retain a portion of the master servicing fee for the related Mortgage Loan calculated at 0.0% per annum. Such Sub-Servicing Agreement (a) may be terminated without cause and without the payment of any fee and (b) shall also provide that such sub-servicer shall become the master servicer under a separate servicing agreement for the applicable Serviced Whole Loan in the event that any Serviced Whole Loan is no longer to be serviced and administered hereunder, which separate servicing agreement shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that the applicable Serviced Whole Loan and the related Mortgaged Properties shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Such sub-servicer (a) may be terminated without cause and without the payment of any fee and (b) shall meet the requirements of Section 3.01 of this Agreement. If any sub-servicer appointed by the Master Servicer at the request of a Companion Loan Holder in accordance with this Section 7.05 shall at any time resign or be terminated, the Master Servicer shall be required to promptly appoint a substitute sub-servicer with respect to which a Rating Agency Confirmation, which shall be delivered and addressed to the related
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Companion Loan Holder and to the Trustee, has been obtained at the expense of the applicable resigning or terminated sub-servicer (and any applicable Sub-Servicing Agreement shall so provide), and if the resigning or terminated sub-servicer fails to cover such expense, the Master Servicer shall do so. In the event a successor Master Servicer is acting hereunder and that successor Master Servicer desires to terminate the sub-servicer appointed under this Section 7.05, the terminated Master Servicer that was responsible for the Servicer Termination Event that led to the appointment of such sub-servicer shall be responsible for all costs incurred in connection with such termination, including the payment of any termination fee.
Section 7.06 Termination of the Operating Advisor.
(a) An “Operating Advisor Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:
(i) any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of its representations or warranties under this Agreement, which failure shall continue unremedied for a period of 30 days after the date on which written notice of such failure shall have been given to the Operating Advisor by the Trustee or to the Operating Advisor and the Trustee by the Holders of Certificates having greater than 25% of the aggregate Voting Rights of all then-outstanding Certificates; provided, however, that with respect to any such failure which is not curable within such 30-day period, the Operating Advisor shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure with the initial 30-day period and has provided the Trustee and the Certificate Administrator with an Officer’s Certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;
(ii) any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard which failure shall continue unremedied for a period of 30 days;
(iii) any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure shall continue unremedied for a period of 30 days;
(iv) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Operating Advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days;
(v) the Operating Advisor shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or
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relating to the Operating Advisor or of or relating to all or substantially all of its property; or
(vi) the Operating Advisor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations.
Upon receipt by the Certificate Administrator of notice of the occurrence of any Operating Advisor Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders electronically by posting such notice on its internet website and by mail, unless the Certificate Administrator has received notice that it has been remedied. If an Operating Advisor Termination Event shall occur then, and in each and every such case, so long as such Operating Advisor Termination Event shall not have been remedied, either the Trustee (i) may or (ii) upon the written direction of holders of Certificates evidencing not less than 25% of the Voting Rights of each Class of Non-Reduced Certificates, the Trustee shall, terminate all of the rights and obligations of the Operating Advisor under this Agreement, (other than any rights or obligations that accrued prior to such termination, including accrued and unpaid compensation, and indemnification rights arising out of events occurring prior to such termination), by notice in writing to the Operating Advisor. Notwithstanding anything herein to the contrary, the Depositor shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Operating Advisor Termination Event of which the Depositor becomes aware.
(b) Upon (i) the written direction of holders of Certificates evidencing not less than 15% of the Voting Rights of the Non-Reduced Certificates requesting a vote to terminate and replace the Operating Advisor with a proposed successor operating advisor that is an Eligible Operating Advisor and (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote, the Certificate Administrator shall promptly provide written notice thereof to the Operating Advisor and to all Certificateholders by (i) posting such notice on its internet website, and (ii) mailing such notice to all Certificateholders at their addresses appearing in the Certificate Register and to the Operating Advisor. Upon the written direction of holders of Certificates evidencing more than 50% of the Voting Rights of the Non-Reduced Certificates that exercise their right to vote (provided that Holders of at least 50% of the Voting Rights of the Non-Reduced Certificates exercise their right to vote), the Trustee shall terminate all of the rights and obligations of the Operating Advisor under this Agreement (other than any rights or obligations that accrued prior to such termination, including accrued and unpaid compensation, and indemnification rights arising out of events that occurred prior to such termination) by written notice to the Operating Advisor, and the proposed successor operating advisor shall be appointed. The provisions set forth in the foregoing sentences of this Section 7.06(b) shall be binding upon and inure to the benefit of solely the Certificateholders and the Trustee as between each other. The Operating Advisor shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions. As between the Operating Advisor, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Operating Advisor. The Certificate Administrator shall include on each Distribution Date Statement a statement that
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each Certificateholder and Beneficial Owner may access such notices on the Certificate Administrator’s Website and each Certificateholder and Beneficial Owner may register to receive e-mail notifications when such notices are posted on the Certificate Administrator’s Website; provided that the Certificate Administrator shall be entitled to reimbursement from the requesting Certificateholders for the reasonable expenses of posting such notices.
(c) On or after the receipt by the Operating Advisor of such written notice of termination, subject to the foregoing, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Operating Advisor shall execute any and all documents and other instruments, and do or accomplish all other acts or things reasonably necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than 15 Business Days after (1) the Operating Advisor resigns pursuant to Section 6.04 of this Agreement (excluding any resignation under the circumstances contemplated in Section 6.04(b) where no successor Operating Advisor is required to be appointed) or (2) the Trustee delivers such written notice of termination to the Operating Advisor, the Trustee shall appoint a successor Operating Advisor that is an Eligible Operating Advisor, which successor Operating Advisor may be an Affiliate of the Trustee and shall be the proposed Operating Advisor in the case of a termination pursuant to Section 7.06(b) of this Agreement; provided, however, that if the Trustee is the successor Master Servicer or successor Special Servicer, neither the Trustee nor any of its Affiliates shall be the successor Operating Advisor. The Trustee shall provide written notice of the appointment of a successor Operating Advisor to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Controlling Class Representative and each Certificateholder within one Business Day of such appointment. Except as contemplated by Section 7.06(b) of this Agreement, the appointment of a successor Operating Advisor shall not be subject to the vote, consent or approval of the holder of any Class of Certificates.
The Operating Advisor shall not at any time be the Depositor, the Master Servicer, the Special Servicer, a Sponsor or an Affiliate of any of them. If any of such entities becomes the Operating Advisor, including by means of an Affiliation arising after the date hereof, the Operating Advisor shall immediately resign or cause an assignment under Section 6.04 of this Agreement and the Trustee shall appoint a successor Operating Advisor subject to and in accordance with this Section 7.06(c), which successor Operating Advisor may be an Affiliate of the Trustee. Notwithstanding the foregoing, if the Trustee is unable to find a successor Operating Advisor within 30 days of the termination of the Operating Advisor, the Depositor shall be permitted to find a replacement. In the event the Operating Advisor is either (i) required to resign due to the Depositor, the Master Servicer, the Special Servicer, the Controlling Class Representative, the Charles River Plaza North Directing Holder, the WPC Department Store Portfolio Directing Holder, a Sponsor or an Affiliate thereof becoming the Operating Advisor or (ii) terminated pursuant to this Section 7.06, then, unless and until a replacement Operating Advisor is appointed, no party shall act as the Operating Advisor and the provisions in this Agreement relating to consultation with respect to the Operating Advisor shall not be applicable until a replacement Operating Advisor is appointed hereunder.
(d) Upon any resignation or termination of the Operating Advisor and, if applicable, appointment of a successor to the Operating Advisor, the Trustee shall, as soon as possible, give written notice thereof to the Rating Agencies, the Special Servicer, the Master
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Servicer, the Certificate Administrator (who shall, as soon as possible, give written notice thereof to the Certificateholders), the Depositor and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider. In the event that the Operating Advisor resigns or is terminated, all of its rights and obligations under this Agreement shall terminate, other than any rights or obligations that accrued prior to such resignation or termination, including accrued and unpaid compensation, and indemnification rights arising out of events occurring prior to such resignation or termination).
(e) Notwithstanding the foregoing, the Operating Advisor may resign from its obligations and duties under this Agreement, without payment of any penalty, at any time (a) the aggregate Certificate Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D and Class E Certificates have been reduced to zero, or (b) the aggregate Stated Principal Balance of the Mortgage Loans in the Trust is equal to or less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans; provided that no successor operating advisor shall be required to be appointed in connection with, or as a condition to, such resignation.
ARTICLE
VIII
CONCERNING THE TRUSTEE and The Certificate Administrator
Section 8.01 Duties of the Trustee and the Certificate Administrator.
(a) The Trustee, prior to the occurrence of a Servicer Termination Event of which a Responsible Officer of the Trustee has actual knowledge and after the curing or waiver of all Servicer Termination Events which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no permissive right of the Trustee shall be construed as a duty. During the continuance of a Servicer Termination Event of which a Responsible Officer of the Trustee has actual knowledge, the Trustee, subject to the provisions of Section 7.02 and Section 7.04 of this Agreement, shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. The Certificate Administrator undertakes to perform at all times such duties and only such duties as are specifically set forth in this Agreement and no permissive right of the Certificate Administrator shall be construed as a duty.
(b) Each of the Trustee and the Certificate Administrator, upon receipt of any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator, as applicable, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement to the extent specifically set forth herein; provided, however, that neither the Trustee nor the Certificate Administrator shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument provided to it hereunder if accepted in good faith. If any such instrument is found not to conform on its face to the
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requirements of this Agreement in a material manner, the Trustee or the Certificate Administrator, as applicable, shall request a corrected instrument, and if the instrument is not corrected to the Trustee’s or the Certificate Administrator’s, as applicable, reasonable satisfaction, the Certificate Administrator (if the Certificate Administrator requested the corrected instrument or upon direction from the Trustee if the Trustee requested the corrected instrument) will provide notice thereof to the Certificateholders.
(c) Neither the Trustee, the Certificate Administrator nor any of their respective officers, directors, employees, agents or “control” persons within the meaning of the Securities Act shall have any liability arising out of or in connection with this Agreement, provided that, subject to Section 8.02 of this Agreement, no provision of this Agreement shall be construed to relieve the Trustee or the Certificate Administrator, as applicable, or any such person, from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or its own bad faith; and provided, further, that:
(i) Prior to the occurrence of a Servicer Termination Event or Operating Advisor Termination Event of which a Responsible Officer of the Trustee has actual knowledge, and after the curing or waiver of all such Servicer Termination Events which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, neither the Trustee nor the Certificate Administrator shall be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Certificate Administrator and, in the absence of bad faith on the part of the Trustee or the Certificate Administrator, the Trustee or the Certificate Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any resolutions, certificates, statements, reports, opinions, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator, as applicable, that conform on their face to the requirements of this Agreement without responsibility for investigating the contents thereof;
(ii) Neither the Trustee nor the Certificate Administrator shall be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers, unless it shall be proved that the Trustee or the Certificate Administrator, as applicable, was negligent in ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Certificate Administrator shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of Certificates entitled to greater than 50% of the Percentage Interests (or such other percentage as is specified herein) of each affected Class, or of the aggregate Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Certificate Administrator, as applicable, or exercising any trust or power conferred upon the Trustee or the Certificate Administrator, as applicable, under this Agreement;
(iv) Neither the Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, agents or control persons shall be responsible
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for any act or omission of any Custodian, Paying Agent or Certificate Registrar that is not the same Person as, or an Affiliate of, the Trustee or the Certificate Administrator, as applicable, and that is selected other than by the Trustee or the Certificate Administrator, as applicable, performed or omitted in compliance with any custodial or other agreement, or any act or omission of the Master Servicer, Special Servicer, the Depositor, the Operating Advisor or any other third Person, including, without limitation, in connection with actions taken pursuant to this Agreement;
(v) Neither the Trustee nor the Certificate Administrator shall be under any obligation to appear in, prosecute or defend any legal action unless such action is incidental to its respective duties as Trustee or Certificate Administrator, as applicable, in related with this Agreement (and, if it does, all reasonable legal expenses and costs of such action shall be expenses and costs of the Trust Fund) and in its opinion does not expose it to any expense or liability for which reimbursement is not reasonably assured, and the Trustee or the Certificate Administrator, as applicable, shall be entitled to be reimbursed therefor from the Collection Account, unless such legal action arises (i) as a result of any willful misconduct, bad faith, fraud or negligence in the performance of duties of the Trustee or the Certificate Administrator, as the case may be, or by reason of negligent disregard of the Trustee’s or the Certificate Administrator’s, as the case may be, obligations or duties hereunder, or (ii) as a result of the breach by the Trustee or the Certificate Administrator, as the case may be, of any of its representations or warranties contained in Section 2.07 or Section 2.08 herein; provided, however, that the Trustee or the Certificate Administrator may in its discretion undertake any such action related to its obligations hereunder which it may deem necessary or desirable with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder; and
(vi) Neither the Trustee nor the Certificate Administrator shall be charged with knowledge of any act, failure to act or breach of any Person upon the occurrence of which the Trustee or the Certificate Administrator, as applicable, may be required to act, unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, obtains actual knowledge of such failure. Each of the Trustee and the Certificate Administrator shall be deemed to have actual knowledge of the Master Servicer’s or the Special Servicer’s failure to provide scheduled reports, certificates and statements when and as required to be delivered to the Trustee or the Certificate Administrator, as applicable, pursuant to this Agreement.
None of the provisions contained in this Agreement shall require the Trustee or the Certificate Administrator, in its capacity as Trustee or the Certificate Administrator, as applicable, to expend or risk its own funds, or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if in the opinion of the Trustee or the Certificate Administrator, as applicable, the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee or the Certificate Administrator, as applicable, to perform, or, with respect to the Trustee, be responsible for the manner of performance of, any of the obligations of the Master Servicer, the Special Servicer or the Operating Advisor under this Agreement, except, with respect to the
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Trustee, during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer or the Special Servicer in accordance with the terms of this Agreement. Neither the Trustee nor the Certificate Administrator shall be required to post any surety or bond of any kind in connection with its performance of its obligations under this Agreement and neither the Trustee nor the Certificate Administrator shall be liable for any loss on any investment of funds pursuant to this Agreement (other than any funds invested with it in its commercial capacity or at its discretion).
(d) The Operating Advisor, the Master Servicer, the Special Servicer or the Trustee may at any time request from the Certificate Administrator written confirmation of whether a Consultation Termination Event or a Control Termination Event occurred during the previous calendar year and the Certificate Administrator shall deliver such confirmation, based on information in its possession, to the requesting party within 15 days of such request. Further, based on information in its possession, the Certificate Administrator shall notify the Operating Advisor, the Master Servicer and the Special Servicer, without any request for such notice from the Operating Advisor, the Master Servicer or the Special Servicer, within 10 days of the commencement or cessation of any Consultation Termination Event or Control Termination Event.
Section 8.02 Certain Matters Affecting the Trustee and the Certificate Administrator.
(a) Except as otherwise provided in Section 8.01 of this Agreement:
(i) Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) Each of the Trustee and the Certificate Administrator may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby;
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(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be answerable for other than its negligence or willful misconduct in the performance of any such act; and
(C) provided that subject to the foregoing clause (A), nothing contained herein shall relieve the Trustee of the obligations, upon the occurrence of a Servicer Termination Event (which has not been cured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs;
(iv) Neither the Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation of matters arising under this Agreement or into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, as applicable, not reasonably assured to the Trustee or the Certificate Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, as applicable, may require reasonable indemnity against such costs, expense, or liability as a condition to taking any such action. The reasonable expense of every such investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting the investigation;
(vi) Each of the Trustee and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder; provided that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party; and
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(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator, as applicable, shall have notice of an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(d) Neither the Trustee nor the Certificate Administrator shall be responsible for delays or failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Certificate Administrator or the Trustee, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Certificate Administrator or the Trustee, as applicable,. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Certificate Administrator and the Trustee to comply with Applicable Laws.
(f) Each of the Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee hereunder in the same manner as if such party were the named Trustee herein.
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Section 8.03 Neither the Trustee Nor the Certificate Administrator Is Liable for Certificates or Mortgage Loans. The recitals contained herein and in the Certificates shall not be taken as the statements of the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer or the Operating Advisor, and the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor assume no responsibility for their correctness. The Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor make no representations or warranties as to the validity or sufficiency of this Agreement, of the Certificates or any prospectus used to offer the Certificates for sale or the validity, enforceability or sufficiency of any Mortgage Loan or related document. Neither the Trustee nor the Certificate Administrator shall at any time have any responsibility or liability for or with respect to the legality, validity and enforceability of any Mortgage, any Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Fund or its ability to generate the payments to be distributed to Certificateholders under this Agreement. Without limiting the foregoing, neither the Trustee nor the Certificate Administrator shall be liable or responsible for: the existence, condition and ownership of any Mortgaged Property; the existence of any hazard or other insurance thereon (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer) or the enforceability thereof; the existence of any Mortgage Loan or the contents of the related Mortgage File on any computer or other record thereof (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer); the validity of the assignment of any Mortgage Loan to the Trust Fund or of any intervening assignment; the completeness of any Mortgage File (except for its review thereof pursuant to Section 2.02); the performance or enforcement of any Mortgage Loan (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer); the compliance by the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor with any warranty or representation made under this Agreement or in any related document or the accuracy of any such warranty or representation prior to the Trustee’s receipt of notice or other discovery of any non-compliance therewith or any breach thereof; any investment of moneys by or at the direction of the Master Servicer or any loss resulting therefrom (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer), it being understood that the Trustee shall remain responsible for any Trust Fund property that it may hold in its individual capacity; the acts or omissions of any of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer) or any Sub-Servicer or any Mortgagor; any action of the Master Servicer, the Special Servicer or the Operating Advisor (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer) or any Sub-Servicer taken in the name of the Trustee except to the extent such action is taken at the express written direction of the Trustee; the failure of the Master Servicer or the Special Servicer or any Sub-Servicer to act or perform any duties required of it on behalf of the Trust Fund or the Trustee as applicable
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hereunder; or any action by or omission of the Trustee taken at the instruction of the Master Servicer or the Special Servicer (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement, in the Trustee’s capacity as Master Servicer or Special Servicer) unless the taking of such action is not permitted by the express terms of this Agreement; provided, however, that the foregoing shall not relieve the Trustee or the Certificate Administrator, as applicable, of its obligation to perform its duties as specifically set forth in this Agreement. Neither the Trustee nor the Certificate Administrator shall be accountable for the use or application by the Depositor of any of the Certificates or of the proceeds of the sale of such Certificates, or for the use or application of any funds paid to the Depositor, the Master Servicer or the Special Servicer in respect of the assignment of the Mortgage Loans or deposited in or withdrawn from the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Lockbox Account, the Escrow Accounts, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account, the Excess Interest Distribution Account or any other account maintained by or on behalf of the Master Servicer or the Special Servicer, other than any funds held by the Trustee or the Certificate Administrator, as applicable. Neither the Trustee nor the Certificate Administrator shall have responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder (unless in the case of the Trustee, the Trustee shall have become the successor Master Servicer) or to record this Agreement. In making any calculation hereunder which includes as a component thereof the payment or distribution of interest for a stated period at a stated rate “to the extent permitted by applicable law,” the Trustee or the Certificate Administrator, as applicable, shall assume that such payment is so permitted unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge, or receives an Opinion of Counsel (at the expense of the Person asserting the impermissibility) to the effect that such payment is not permitted by applicable law.
Section 8.04 Trustee and Certificate Administrator May Own Certificates. The Trustee, the Certificate Administrator and any agent of the Trustee or the Certificate Administrator, each, in its individual capacity or any other capacity, may become the owner or pledgee of Certificates, and may deal with the Depositor and the Master Servicer in banking transactions, with the same rights it would have if it were not Trustee, the Certificate Administrator or such agent, as the case may be.
Section 8.05 Payment of Trustee/Certificate Administrator Fees and Expenses; Indemnification.
(a) As compensation for the performance of its duties hereunder, the Trustee shall be paid its portion of the Trustee/Certificate Administrator Fee, which shall cover recurring and otherwise reasonably anticipated expenses of the Trustee. As compensation for the performance of its duties hereunder, the Certificate Administrator shall be paid its portion of the Trustee/Certificate Administrator Fee, which shall cover recurring and otherwise reasonably anticipated expenses of the Certificate Administrator. The Certificate Administrator shall pay the Trustee the Trustee’s portion of the Trustee/Certificate Administrator Fee. The Trustee/Certificate Administrator Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. The Trustee/Certificate Administrator Fee (which in each case shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) shall
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constitute the Trustee’s and the Certificate Administrator’s sole form of compensation for all services rendered by each of them in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties of the Trustee or the Certificate Administrator, as applicable, hereunder. No Trustee/Certificate Administrator Fee shall be payable with respect to any Companion Loan. In the event that the Trustee assumes the servicing responsibilities of the Master Servicer or the Special Servicer hereunder pursuant to or otherwise arising from the resignation or removal of the Master Servicer or the Special Servicer, the Trustee shall be entitled to the compensation to which the Master Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) Each of the Trustee and the Certificate Administrator shall be paid or reimbursed by the Trust Fund upon its request for all reasonable expenses, disbursements and, except for Advances otherwise reimbursable hereunder, advances incurred or made by the Trustee or the Certificate Administrator, as applicable, pursuant to and in accordance with any of the provisions of this Agreement (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) to the extent such payments are “unanticipated expenses” as described in clause (d) below, except any such expense, disbursement or advance as may arise from its negligence, bad faith or willful misconduct; provided, however, that, subject to Section 8.01 and Section 8.02 of this Agreement, neither the Trustee nor the Certificate Administrator shall refuse to perform any of its duties hereunder solely as a result of the failure to be paid the Trustee/Certificate Administrator Fee or the Trustee’s expenses or the Certificate Administrator’s expenses, as applicable.
The Master Servicer and the Special Servicer covenant and agree to pay or reimburse the Trustee for the reasonable out-of-pocket expenses incurred or made by the Trustee in connection with any transfer of the servicing responsibilities of the Master Servicer or the Special Servicer, respectively, hereunder, pursuant to or otherwise arising from the resignation or removal of the Master Servicer or the Special Servicer, in accordance with any of the provisions of this Agreement (and including the reasonable fees and expenses and disbursements of its counsel and all other persons not regularly in its employ), except any such expenses as may arise from the negligence or bad faith of the Trustee.
(c) Each of the Paying Agent, Authenticating Agent, the Certificate Administrator, the Certificate Registrar, the Custodian, the Trustee, the Depositor, the Master Servicer and the Special Servicer (each, an “Indemnifying Party”) shall indemnify the Trust, the Trustee, the Certificate Administrator, the Certificate Registrar, the Custodian and their respective Affiliates and each of the directors, officers, employees and agents of the Paying Agent, the Authenticating Agent, the Trust, the Trustee, the Certificate Administrator, the Certificate Registrar, the Custodian and their respective Affiliates (each, an “Indemnified Party”), and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that the Indemnified Party may sustain in connection with this Agreement (including, without limitation, reasonable fees and disbursements of counsel incurred by the Indemnified Party in any action or proceeding between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party or otherwise) resulting from each such Indemnifying Party’s respective willful misconduct, bad faith, fraud and/or negligence in the performance of each of its respective duties hereunder or by reason of
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negligent disregard of its respective obligations and duties hereunder. Each of the Paying Agent, the Authenticating Agent, the Trustee, the Paying Agent, the Certificate Registrar, the Custodian and the Certificate Administrator shall indemnify each of the Master Servicer and the Special Servicer and its Affiliates and each of the directors, officers, employees and agents of each of the Master Servicer and the Special Servicer and its Affiliates (each, a “Servicer Indemnified Party”), and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that the Servicer Indemnified Party may sustain in connection with this Agreement (including, without limitation, reasonable fees and disbursements of counsel incurred by the Servicer Indemnified Party in any action or proceeding between the Trustee, the Paying Agent, Authenticating Agent, the Certificate Registrar, the Custodian or the Certificate Administrator, as applicable, and the Servicer Indemnified Party or between the Servicer Indemnified Party and any third party or otherwise) related to the Trustee’s, Authenticating Agent, the Paying Agent’s, the Certificate Registrar’s, the Custodian’s or the Certificate Administrator’s respective willful misconduct, bad faith, fraud and/or negligence in the performance of each of its respective duties hereunder or by reason of negligent disregard of its respective obligations and duties hereunder. Each of the Authenticating Agent, the Paying Agent, the Certificate Registrar, the Custodian, the Certificate Administrator and the Trustee shall indemnify the Depositor, any employee, director or officer of the Depositor, and the Trust Fund and hold the Depositor, any employee, director or officer of the Depositor, and the Trust Fund harmless against any loss, liability or reasonable expense (including, without limitation, reasonable attorneys’ fees and expenses) incurred by such parties (i) as a result of any willful misconduct, bad faith, fraud or negligence in the performance of duties of the Authenticating Agent, the Paying Agent, the Certificate Registrar, the Custodian, the Certificate Administrator or the Trustee, as the case may be, or by reason of negligent disregard of the Authenticating Agent, the Paying Agent’s, the Certificate Registrar’s, the Custodian’s, the Certificate Administrator’s or the Trustee’s, as the case may be, obligations or duties hereunder, or (ii) as a result of the breach by the Authenticating Agent, the Paying Agent, the Certificate Registrar, the Custodian, the Certificate Administrator or the Trustee, as the case may be, of any of its representations or warranties contained herein.
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it harmless against, any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that the Indemnified Party may sustain in connection with this Agreement (including, without limitation, reasonable fees and disbursements of counsel and of all persons not regularly in its employ incurred by the Indemnified Party in any action or proceeding between the Trust Fund and the Indemnified Party or between the Indemnified Party and any third party or otherwise) arising in respect of this Agreement or the Certificates, in each case to the extent and only to the extent, such payments are expressly reimbursable under this Agreement, or are unanticipated expenses (as defined below), other than (i) those resulting from the negligence, fraud, bad faith or willful misconduct, or negligent disregard of obligations and duties hereunder, of the Indemnified Party and (ii) except to the extent such amounts are not paid pursuant to this Section 8.05, those as to which such Indemnified Party is entitled to indemnification pursuant to Section 8.05(c). The term “unanticipated expenses” shall include any fees, expenses and disbursements of the Trustee or the Certificate Administrator or any separate trustee or co-trustee or certificate administrator appointed hereunder, only to the extent such fees, expenses and disbursements were not
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reasonably anticipated as of the Closing Date, and the losses, liabilities, damages, claims or incremental expenses (including reasonable attorneys’ fees) incurred or, except in the case of an Advance otherwise reimbursable hereunder, advanced by an Indemnified Party in connection with (i) a default under any Mortgage Loan and (ii) any litigation arising out of this Agreement, including, without limitation, under Section 2.03, Section 3.10, the third paragraph of Section 3.11, Section 4.05 and Section 7.01 of this Agreement. The right of reimbursement of the Indemnified Parties under this Section 8.05(d) shall be senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05 shall survive the termination or maturity of this Agreement or the resignation or removal of the Trustee or the Certificate Administrator, as applicable, as regards rights accrued prior to such resignation or removal and (with respect to any acts or omissions during their respective tenures) the resignation, removal or termination of the Master Servicer, the Special Servicer, the Paying Agent, the Authenticating Agent, the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be limited to, such indemnities, compensation, expenses, disbursements, advances, losses, liabilities, damages and the like, as may pertain or relate to any environmental law or environmental matter.
Section 8.06 Eligibility Requirements for the Trustee and the Certificate Administrator. Each of the Trustee and the Certificate Administrator hereunder shall at all times (i) be a corporation or association organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement, (ii) have a combined capital and surplus of at least $50,000,000, (iii) (a) have a rating on its unsecured long term debt of at least “A2” by Moody’s and, if rated by KBRA, an equivalent rating by KBRA , and (b) have a rating on its unsecured short-term debt of at least “P-1” by Moody’s and, if rated by KBRA, a rating by KBRA at least equivalent to “P-1” by Moody’s, or have such other rating(s) with respect to which the Rating Agencies have provided a Rating Agency Confirmation, (iv) be subject to supervision or examination by federal or state authority, (v) not be an Affiliate of the Master Servicer (except during any period when the Trustee has assumed the duties of the Master Servicer pursuant to Section 7.02) and (vi) not be an entity that is a Prohibited Party. If a corporation or association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In the event that the place of business from which the Trustee or the Certificate Administrator, as applicable, administers the Trust Fund is a state or local jurisdiction that imposes a tax on the Trust Fund or the net income of either Trust REMIC (other than a tax corresponding to a tax imposed under the REMIC Provisions) the Trustee or the Certificate Administrator, as applicable, shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.07, (ii) pay such tax from its own funds and continue as Trustee or Certificate Administrator, as applicable, or (iii) administer the Trust Fund from a state and local jurisdiction that does not impose such a tax. In case at any time the Trustee or the Certificate Administrator shall cease to be eligible in
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accordance with the provisions of this Section, the Trustee or the Certificate Administrator, as applicable, shall resign immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee or the Certificate Administrator. Either the Trustee or the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator (as applicable), the Trustee (as applicable), the Operating Advisor, the Certificate Holders, the Companion Loan Holders and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider. Upon such notice of resignation, the Master Servicer shall promptly appoint a successor Trustee or the Certificate Administrator, as applicable, with respect to which the Rating Agencies have provided a Rating Agency Confirmation to the resigning Trustee or Certificate Administrator, as applicable, and the successor Trustee or Certificate Administrator, as applicable. If no successor Trustee or Certificate Administrator, as applicable, shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee or Certificate Administrator, as applicable, may petition any court of competent jurisdiction for the appointment of a successor Trustee or Certificate Administrator, as applicable. The Trustee or the Certificate Administrator, as applicable, will bear all reasonable costs and expenses of each other party hereto and each Rating Agency in connection with its resignation (including, but not limited to, the costs of assigning Mortgage Loans by reason of change in Trustee).
If at any time either the Trustee or the Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 11.06 and shall fail to resign after written request therefor by the Depositor or Master Servicer, or if at any time either the Trustee or the Certificate Administrator shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate Administrator, as applicable, or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or the Certificate Administrator, as applicable, or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Depositor may remove the Trustee or the Certificate Administrator, as applicable, and promptly appoint a successor Trustee or the Certificate Administrator, as applicable, by written instrument, which shall be delivered to the Trustee or the Certificate Administrator, as applicable, so removed and to the successor Trustee or Certificate Administrator, as applicable. The Holders of Certificates entitled to more than 50% of the Voting Rights of all of the Certificates may at any time remove the Trustee or the Certificate Administrator and appoint a successor Trustee or the Certificate Administrator, as applicable, by written instrument or instruments, in five originals, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to the Depositor, one complete set to the Master Servicer, one complete set to the Trustee (in connection with the removal of the Certificate Administrator), one complete set to the Certificate Administrator (in connection with the removal of the Trustee), one complete set to the Trustee or Certificate Administrator, as applicable, so removed and one complete set to the successor Trustee or Certificate Administrator, as applicable, so appointed and a copy thereof shall be delivered to the Companion Loan Holders.
In the event that the Trustee or the Certificate Administrator is terminated or removed pursuant to this Section 8.07, all of its rights and obligations under this Agreement and
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in and to the Mortgage Loans or Serviced Whole Loans shall be terminated, other than any rights or obligations that accrued prior to the date of such termination or removal (including the right to receive all fees, expenses and other amounts (including Advances and any accrued interest thereon) accrued or owing to it under this Agreement, with respect to periods prior to the date of such termination or removal, and no termination without cause shall be effective until the payment of such amounts to the Trustee or the Certificate Administrator, as applicable). The Trustee or the Certificate Administrator, as applicable, will bear all reasonable costs and expenses of each other party hereto and each Rating Agency in connection with its termination or removal; provided that if the Trustee or Certificate Administrator, as applicable, is terminated without cause by the holders of Certificates evidencing aggregate Voting Rights of more than 50% of the Voting Rights of all Certificates as provided in the immediately preceding paragraph, then such holders will be required to pay all the reasonable costs and expenses (including, but not limited to, reasonable attorney’s fees and expenses) of the Trustee or Certificate Administrator, as applicable, necessary to effect the transfer of the rights and obligations of the Trustee or Certificate Administrator, as applicable, to a successor Trustee or Certificate Administrator.
Any resignation or removal of the Trustee or the Certificate Administrator and appointment of a successor Trustee or Certificate Administrator, as applicable, pursuant to any of the provisions of this Section 8.07 shall not become effective until acceptance of appointment by the successor Trustee or successor Certificate Administrator, as applicable, as provided in Section 8.08.
Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor or upon the termination of the Trustee, the outgoing Trustee shall (subject to the terms of the third paragraph of this Section 8.07) at its own expense, ensure that prior to consummation of such action or as part of its transfer of duties to any successor (to the extent such Loan Document was assigned or endorsed to the Trustee), (A) the original executed Note(s) for each Mortgage Loan, is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3” or in blank and further showing a complete, unbroken chain of endorsement from the originator (if such originator is not the applicable Mortgage Loan Seller) (or, alternatively, if the original executed Note(s) have been lost, a lost note affidavit and indemnity with a copy of such Note(s)), and (B) in the case of the other Mortgage Loan Documents, are assigned (and, other than in connection with the removal of the Trustee without cause, recorded as appropriate) to such successor, and such successor shall review the documents delivered to it or the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made. The outgoing Trustee shall provide copies of the documentation provided for in items (A) and (B) above to the Master Servicer, in each case to the extent such copies are not already in the Master Servicer’s possession. If the Trustee is removed without cause, the Mortgage Loan Documents identified in clause (B) of the preceding sentence shall, if appropriate, be recorded by the successor trustee if so required by the Master Servicer or the Special Servicer and at the expense of the Trust for so long as no Control Termination Event is continuing, with the consent of the Controlling Class Representative, and during the continuance of a Control Termination Event, after consultation with the Controlling Class Representative.
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Section 8.08 Successor Trustee or Successor Certificate Administrator.
(a) Any successor Trustee or Certificate Administrator appointed as provided in Section 8.07 of this Agreement shall execute, acknowledge and deliver to the Depositor, the Master Servicer, the Special Servicer and to the predecessor Trustee or Certificate Administrator, as applicable, as the case may be, instruments accepting their appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Certificate Administrator, as applicable, shall become effective and such successor Trustee or Certificate Administrator, as applicable, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as Trustee or Certificate Administrator, as applicable, herein, provided that a Rating Agency Confirmation shall be obtained from each Rating Agency with respect to the appointment of such successor Trustee or Certificate Administrator. The predecessor Certificate Administrator shall deliver to the successor Certificate Administrator all Mortgage Files and related documents and statements held by it hereunder. The Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the predecessor Trustee or Certificate Administrator, as applicable, shall execute and deliver such instruments and do such other things as may reasonably be required for more fully and certainly vesting and confirming in the successor Trustee or Certificate Administrator, as applicable, all such rights, powers, duties and obligations. No successor Trustee or Certificate Administrator shall accept appointment as provided in this Section 8.08 unless at the time of such acceptance such successor Trustee or Certificate Administrator, as applicable, shall be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor Trustee or Certificate Administrator, as applicable, as provided in this Section 8.08, the Depositor shall mail notice of the succession of such Trustee or Certificate Administrator, as applicable, hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register and to the Companion Loan Holders. If the Depositor fails to mail such notice within 10 days after acceptance of appointment by the successor Trustee or Certificate Administrator, the successor Trustee or Certificate Administrator, as applicable, shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Certificate Administrator appointed pursuant to this Agreement shall satisfy the eligibility requirements set forth in Section 8.06 hereof.
Section 8.09 Merger or Consolidation of the Trustee or the Certificate Administrator. Any entity into which the Trustee or the Certificate Administrator may be merged or converted, or with which the Trustee or the Certificate Administrator, as applicable, may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee or the Certificate Administrator, as applicable, shall be a party, or any entity succeeding to the corporate trust business of the Trustee or the Certificate Administrator, as applicable, shall be the successor of the Trustee or the Certificate Administrator, as applicable, hereunder, provided such entity shall be eligible under the provisions of Section 8.06 without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
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Section 8.10 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the same may at the time be located, the Depositor and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act (at the expense of the Trustee) as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title to the Trust Fund, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as the Depositor and the Trustee may consider necessary or desirable. If the Depositor shall not be in existence or shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, or in case a Servicer Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment. Except as required by applicable law, the appointment of a co-trustee or separate trustee shall not relieve the Trustee of its responsibilities, obligations and liabilities hereunder. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor Trustee under Section 8.06 hereunder and no notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee solely at the direction of the Trustee.
The Depositor and the Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee, or if the separate trustee or co-trustee is an employee of the Trustee, the Trustee acting alone may accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VIII. Every such instrument shall be filed with the Trustee. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. In no event shall any such separate trustee or co-trustee be entitled to any provision relating to the conduct of, affecting the liability of, or affording protection to, such separate trustee or co-trustee that imposes a standard
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of conduct less stringent than that imposed on the Trustee hereunder, affording greater protection than that afforded to the Trustee hereunder or providing a greater limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the Trustee its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
Section 8.11 Access to Certain Information.
(a) The Certificate Administrator and the Custodian shall afford to any Privileged Person (including the Operating Advisor and the Controlling Class Representative) access to any documentation (other than any Privileged Information) regarding the Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.
(b) The Certificate Administrator shall maintain at its offices (and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available) for review by any Privileged Person originals and/or copies of the following items (to the extent such items were prepared by or delivered to the Certificate Administrator in electronic format):
(i) the Prospectus and the Prospectus Supplement;
(ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date (if any), any Loan Purchase Agreement and any amendments and exhibits hereto or thereto;
(iii) all Certificate Administrator reports made available to holders of each relevant class of Certificates since the Closing Date;
(iv) all Distribution Date Statements and all CREFC® reports actually delivered or otherwise made available to Certificateholders pursuant to Section 4.02 of this Agreement since the Closing Date;
(v) the annual assessments as to compliance (in the case of the Master Servicer and the Special Servicer) and the Officer’s Certificates delivered by the Master Servicer and the Special Servicer to the Certificate Administrator since the Closing Date pursuant to Section 10.08 of this Agreement;
(vi) the annual independent public accountants’ servicing report caused to be delivered by the Master Servicer and the Special Servicer to the Certificate Administrator since the Closing Date pursuant to Section 10.09 of this Agreement;
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(vii) the most recent inspection report prepared by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator in respect of each Mortgaged Property pursuant to Section 3.18 of this Agreement;
(viii) any and all notices and reports delivered to the Certificate Administrator with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.10(e) of this Agreement revealed that neither of the conditions set forth in clauses (i) and (ii) thereof was satisfied;
(ix) the Mortgage File, including any and all modifications, waivers and amendments of the terms of the Mortgage Loans (or the Serviced Whole Loans) entered into or consented to by the Master Servicer, the Special Servicer, an Other Master Servicer or an Other Special Servicer and delivered to the Certificate Administrator pursuant to Section 3.24 of this Agreement;
(x) the summary of each Final Asset Status Report delivered to the Certificate Administrator pursuant to Section 3.21(b) of this Agreement and the annual, quarterly and monthly operating statements, if any, collected by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator for each Mortgaged Property, together with the other information specified in Section 4.02(c) of this Agreement;
(xi) any and all Officer’s Certificates and other evidence delivered to or by the Certificate Administrator to support the Master Servicer’s, Special Servicer’s or the Trustee’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(xii) notice of termination or resignation of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, an Other Master Servicer, an Other Special Servicer, an Other Operating Advisor, an Other Certificate Administrator or an Other Trustee (and appointments of successors thereto), only if notice of such termination or resignation is delivered to the Certificate Administrator;
(xiii) notice of any request by at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer or notice of any request by at least 15% of the Voting Rights of the Non-Reduced Certificates to terminate and replace the Operating Advisor;
(xiv) all Special Notices;
(xv) any Third Party Reports (or updates of Third Party Reports) delivered to the Certificate Administrator in electronic format; and
(xvi) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A.
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The Certificate Administrator shall provide, or cause to be provided, copies of any and all of the foregoing items upon reasonable written request of any of the parties set forth in the previous sentence.
The Certificate Administrator may require payment from a Beneficial Owner or prospective purchaser for the reasonable costs and expenses of providing the copies and may also require a confirmation executed by the requesting Person, in a form reasonably acceptable to the Certificate Administrator, to the effect that such Person is a Beneficial Owner or prospective purchaser of Certificates, is requesting the information solely for use in evaluating its investment in the Certificates and will otherwise keep the information confidential. Certificateholders, by the acceptance of their Certificates, shall be deemed to have agreed to keep this information confidential.
The Certificate Administrator shall not be liable for providing or disseminating information in accordance with the terms of this Agreement.
Section 8.12 Compliance with the Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Patriot Act Laws”), each of the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee, the Certificate Administrator, the Special Servicer or the Master Servicer, as applicable. Accordingly, each of the parties to this Agreement agrees to provide to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer, upon its respective reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer to comply with Applicable Patriot Act Laws.
ARTICLE
IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
Section 9.01 Termination; Optional Mortgage Loan Purchase.
(a) The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as hereinafter set forth and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to subsection (c), (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to subsection (h) and (iii) the final payment or
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other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created hereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date hereof. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
(b) In connection with a termination contemplated by Section 9.01(a) of this Agreement, the Trust REMICs outstanding shall be terminated and the assets of the Trust Fund with respect to the Lower-Tier REMIC shall be sold or otherwise disposed of in connection therewith, pursuant to a “plan of complete liquidation” within the meaning of Code Section 860F(a)(4)(A) providing for the actions contemplated by the provisions hereof pursuant to which the applicable Notice of Termination is given and requiring that the assets of the Lower-Tier REMIC shall be sold for cash and that each such Trust REMIC shall terminate on a Distribution Date occurring not more than 90 days following the date of adoption of the plan of complete liquidation. For purposes of this Section 9.01(b), the Notice of Termination given pursuant to Section 9.01(c) shall constitute the adoption of the plan of complete liquidation as of the date such notice is given, which date shall be specified by the Certificate Administrator in the final federal income tax returns of each Trust REMIC. Notwithstanding the termination of the Trust REMICs, or the Trust Fund, the Certificate Administrator shall be responsible for filing the final Tax Returns for the Trust REMICs and for the Grantor Trust for the period ending with such termination, and shall maintain books and records with respect to the Trust REMICs and the Grantor Trust for the period for which it maintains its own tax returns or other reasonable period.
(c) The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Amount of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holders of the Class R Certificates representing greater than a 50% Percentage Interest in such Class, may) effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer and prepared by an Appraiser in accordance with MAI standards) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to
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such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to this Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne by the party exercising its purchase rights hereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to this subsection (c).
(d) If the Trust Fund has not been previously terminated pursuant to subsection (c) or subsection (h) of this Section 9.01, the Certificate Administrator shall determine as soon as practicable the Distribution Date on which the Certificate Administrator reasonably anticipates, based on information with respect to the Mortgage Loans previously provided to it, that the final distribution will be made (i) to the Holders of outstanding Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular Interests, notwithstanding that such distribution may be insufficient to distribute in full an amount equal to the remaining Certificate Principal Balance of each such Certificate or Lower-Tier Regular Interest, as the case may be, together with amounts required to be distributed on such Distribution Date pursuant to Section 4.01 of this Agreement, (ii) to the Holders of the Class Z Certificates, Excess Interest with respect to the Mortgage Loans received and not previously distributed pursuant to Section 4.01(k) of this Agreement or (iii) if no such Regular Certificates are then-outstanding, to the Holders of the Class R Certificates of any amount remaining in the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution Account or the Excess Liquidation Proceeds Reserve Account, in either case, following the later to occur of (a) the receipt or collection of the last payment due on any Mortgage Loan included in the Trust Fund or (b) the liquidation or disposition pursuant to Section 3.17 of this Agreement of the last asset held by the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this Section 9.01 shall be mailed by the Certificate Administrator to affected Certificateholders and each Rating Agency (with a copy to the Master Servicer, the Special Servicer and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the
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Rule 17g-5 Information Provider) at their addresses shown in the Certificate Register as soon as practicable after the Certificate Administrator shall have received, given or been deemed to have received a Notice of Termination but in any event not more than thirty days, and not less than ten days, prior to the Anticipated Termination Date. The notice mailed by the Certificate Administrator to affected Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final distribution is anticipated to be made to Holders of Certificates of the Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be made only upon presentation and surrender of Certificates at the office of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any reason, the Certificate Administrator shall promptly mail notice thereof to each affected Certificateholder.
(f) Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to this Section 9.01 shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay, to the extent permitted by applicable law, to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 9.01.
(g) For purposes of this Section 9.01, the Remaining Certificateholder shall have the first option to terminate the Trust Fund pursuant to subsection (h), and then the Holders of the Controlling Class, and then the Special Servicer, and then the Master Servicer, and then the Holder of the Class R Certificates, in each of the last four cases, pursuant to subsection (c).
(h) Following the date on which the Class X-A, Class X-B, Class X-D and Class X-E Notional Amounts and the aggregate Certificate Principal Balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D and Class E
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Certificates are reduced to zero, the Remaining Certificateholder shall have the right to exchange all of its Certificates, including the Class X Certificates (but excluding the Class Z and Class R Certificates) for all of the Mortgage Loans (and if a Non-Serviced Mortgage Loan is no longer a “Mortgage Loan” due to the fact that the related Mortgaged Property has been foreclosed upon under the applicable Other Pooling and Servicing Agreement, the related REO Mortgage Loan) and each REO Property remaining in the Trust Fund as contemplated by clause (ii) of Section 9.01(a) by giving written notice to all the parties hereto no later than 60 days prior to the anticipated date of exchange; provided that such Remaining Certificateholder shall pay the Master Servicer an amount equal to (i) the product of (A) the Prime Rate, (B) the aggregate Certificate Principal Balance of the then-outstanding Principal Balance Certificates as of the day of the exchange and (C) three, divided by (ii) 360. In the event that the Remaining Certificateholder elects to exchange all of its Certificates (other than the Class Z and Class R Certificates) for all of the Mortgage Loans and each REO Property remaining in the Trust Fund in accordance with the preceding sentence, such Remaining Certificateholder, not later than the Termination Date, shall deposit in the Collection Account an amount in immediately available funds equal to all amounts due and owing to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee hereunder through the date of the liquidation of the Trust Fund that may be withdrawn from the Collection Account, but only to the extent that such amounts are not already on deposit in the Collection Account. Upon confirmation that such final deposits have been made and following the surrender of all remaining Certificates (other than the Class Z and Class R Certificates) by the Remaining Certificateholder on the Termination Date, the Custodian shall, upon receipt of a Request for Release from the Master Servicer, release or cause to be released to the Remaining Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Remaining Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund, and the Trust Fund shall be liquidated in accordance with this Section 9.01. Thereafter, the Trust Fund and the respective obligations and responsibilities under this Agreement of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee (other than the making of certain payments to Certificateholders and Companion Loan Holders, sending of certain notices, preparing and filing tax returns and maintenance of books and records), shall terminate. Such transfers shall be subject to any rights of any Sub-Servicers to service (or to perform select servicing functions with respect to) the Mortgage Loans. For federal income tax purposes, the Remaining Certificateholder shall be deemed to have purchased the assets of the Lower-Tier REMIC for an amount equal to the remaining Certificate Principal Balance of its remaining Certificates (other than the Class Z and Class R Certificates), plus accrued and unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributed in respect of the Lower-Tier Regular Interests and such Certificates. The remaining Mortgage Loans and REO Properties are deemed distributed to the Remaining Certificateholder in liquidation of the Trust Fund pursuant to this Section 9.01.
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ARTICLE
X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent of the Parties; Reasonableness.
(a) The parties hereto acknowledge and agree that the purpose of Article X of this Agreement is to facilitate compliance by the Depositor and any Other Depositor with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not, and no Other Depositor may, exercise its rights to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than compliance with the Securities Act, the Exchange Act and the Sarbanes-Oxley Act. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time due to interpretive guidance provided by the Commission or its staff, and agree to comply with reasonable requests made by the Depositor, or any Other Depositor, in good faith for delivery of information under these provisions on the basis of such evolving interpretations of Regulation AB. In connection with the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, and any Serviced Companion Loan Securities, each of the parties to this Agreement shall cooperate fully with the Depositor and the Certificate Administrator, any Other Depositor and any Other Exchange Act Reporting Party, as applicable, to deliver to the Depositor or Other Depositor, as applicable (including any of its assignees or designees), any and all statements, reports, certifications, records and any other information in its possession or reasonably available to it and necessary in the reasonable good faith determination of the Depositor or the Certificate Administrator, any Other Depositor or any Other Exchange Act Reporting Party, as applicable, to permit the Depositor or any Other Depositor, as applicable, to comply with the provisions of Regulation AB, together with such disclosures relating to the Master Servicer, the Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the Depositor or any Other Depositor, as applicable, to be necessary in order to effect such compliance.
(b) Succession; Subcontractors Reasonableness. For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act (in addition to any requirements contained in Section 10.06 of this Agreement) in connection with the succession to the Master Servicer, the Special Servicer or any Sub-Servicer as servicer or Sub-Servicer (to the extent such Sub-Servicer is a “servicer” as contemplated by Item 1108(a)(2) of Regulation AB) under this Agreement by any Person (i) into which the Master Servicer, the Special Servicer or such Sub-Servicer may be merged or consolidated, or (ii) which may be appointed as a successor to the Master Servicer, the Special Servicer or any such Sub-Servicer, the Master Servicer (other than if pursuant to an appointment under Section 7.01 or Section 7.02 of this Agreement) or the Special Servicer, as applicable, shall provide to the Depositor, as well as any Other Depositor as to which the applicable Companion Loan is affected, at least five (5) Business Days prior to the effective date of such succession or appointment as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, and otherwise no later than one (1) Business Day after such effective date of succession, (x) written notice to the Depositor and each such Other Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory
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to the Depositor and each such Other Depositor, all information relating to such successor servicer reasonably requested by the Depositor or any such Other Depositor in order to comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).
(c) For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each of the Master Servicer, the Special Servicer, the Sub-Servicer, the Custodian and the Certificate Administrator (each of the Master Servicer, the Special Servicer, the Custodian and the Certificate Administrator and each Sub-Servicer, for purposes of this Section 10.01(c) and Section 10.01(d), a “Servicer”) is permitted to utilize one or more Subcontractors to perform certain of its obligations hereunder. Such Servicer shall promptly upon request provide to the Depositor, as well as any Other Depositor as to which the applicable Companion Loan is affected, a written description (in form and substance satisfactory to the Depositor and each such Other Depositor) of the role and function of each Subcontractor that is a Servicing Function Participant utilized by such Servicer during the preceding calendar year, specifying (i) the identity of such Subcontractor, and (ii) which elements of the Servicing Criteria will be addressed in assessments of compliance provided by each such Subcontractor. Each Servicer shall cause any Subcontractor determined to be a Servicing Function Participant used by such Servicer for the benefit of the Depositor to comply with the provisions of Section 10.08 and Section 10.09 of this Agreement to the same extent as if such Subcontractor were such Servicer. Such Servicer shall obtain from each such Subcontractor (or, in the case of each Sub-Servicer set forth on Exhibit S, shall use commercially reasonable efforts to cause such Sub-Servicer) and deliver to the applicable Persons any assessment of compliance report and related accountant’s attestation required to be delivered by such Subcontractor under Section 10.08 and Section 10.09 of this Agreement, in each case, as and when required to be delivered.
(d) For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, notwithstanding the foregoing, if a Servicer engages a Subcontractor in connection with the performance of any of its duties under this Agreement, such Servicer shall be responsible for determining whether such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and whether such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding sentence, that such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a Sub-Servicer for purposes of this Agreement, and the engagement of such Sub-Servicer shall not be effective unless and until notice is given to the Depositor and the Certificate Administrator, as well as any Other Depositor as to which the applicable Companion Loan is affected, of any such Sub-Servicer and Sub-Servicing Agreement. No Sub-Servicing Agreement (other than such agreements set forth on Exhibit S hereto) shall be effective until five (5) Business Days after such written notice is received by the Depositor and the Certificate Administrator and each such Other Depositor. Such notice shall contain all information reasonably necessary, and in such form as may be necessary, to enable the Certificate Administrator, as well as any Other Exchange Act Reporting Party as to which the applicable Companion Loan is affected, to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to Section 10.06 of this Agreement (if such reports under the Exchange Act are required to be filed under the Exchange Act).
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(e) For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, in connection with the succession to the Trustee or Certificate Administrator under this Agreement by any Person (i) into which the Trustee or Certificate Administrator may be merged or consolidated, or (ii) which may be appointed as a successor to the Trustee or Certificate Administrator, the Trustee or Certificate Administrator, as applicable, shall notify the Depositor and each Other Depositor, at least ten (10) Business Days prior to the effective date of such succession or appointment (or if such prior notice would be violative of applicable law or any applicable confidentiality agreement, no later than the time required under Section 10.06 of this Agreement) and shall furnish pursuant to Section 10.06 of this Agreement to the Depositor and each Other Depositor in writing and in form and substance reasonably satisfactory to the Depositor and each Other Depositor, all information reasonably necessary for the Certificate Administrator and Trustee and each Other Exchange Act Reporting Party to accurately and timely report, the event under Item 6.02 of Form 8-K pursuant to Section 10.06 of this Agreement (if such reports under the Exchange Act are required to be filed under the Exchange Act).
Section 10.02 Filing Obligations.
(a) The Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall (and shall cause (or, in the case of a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause) each Additional Servicer and Servicing Function Participant utilized thereby to) reasonably cooperate with the Depositor and each Other Depositor in connection with the satisfaction of the Trust’s and each Other Securitization Trust’s reporting requirements under the Exchange Act. Pursuant to Section 10.03, Section 10.04 and Section 10.06, the Certificate Administrator shall prepare for execution by the Depositor any Forms 10-D, 10-K and 8-K required by the Exchange Act, in order to permit the timely filing thereof, and the Certificate Administrator shall file (via the Commission’s Electronic Data Gathering and Retrieval System) such Forms executed by the Depositor. In the event that the Certificate Administrator is unable to timely file with the Commission or deliver to any Other Depositor or Other Exchange Act Reporting Party as to which the applicable Companion Loan is affected, all or any required portion of any Form 8-K, 10-D or 10-K required to be filed by this Agreement because required disclosure information was either not delivered to it or delivered to it after the delivery deadlines set forth in this Agreement, the Certificate Administrator shall promptly as soon as practicable, but in no event later than twenty-four (24) hours after determination (but if the next calendar day is not a Business Day, then in no event later than 10:00 a.m., New York time, on the next Business Day), notify the Depositor, such Other Depositor or Other Exchange Act Reporting Party thereof. In the case of Forms 10-D and 10-K, the Depositor and the Certificate Administrator will thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Certificate Administrator will, upon receipt of all required Form 8-K Disclosure Information, include such disclosure information on the next succeeding Form 10-D to be filed for the Trust. In the event that any previously filed Form 8-K or Form 10-K needs to be amended, the Certificate Administrator will notify the Depositor thereof, and such other parties as needed and the parties hereto will cooperate with the Certificate Administrator to prepare any necessary Form 8-K/A or Form 10-K/A. In the event that any previously filed Form 10-D needs to be amended, the Certificate Administrator shall notify the Depositor thereof, and such other parties as needed, and the parties hereto shall cooperate to
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prepare any necessary Form 10-D/A. Any Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by an officer of the Depositor. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 10.02 related to the timely preparation and filing of Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Article X. The Certificate Administrator shall have no liability for any loss, expense, damage, or claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file any such Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.
Section 10.03 Form 10-D Filings.
Within 15 calendar days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D then required by the Exchange Act, in form and substance as then required by the Exchange Act. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto; provided that the Certificate Administrator shall redact from such Distribution Date Statement any information relating to the ratings of the Certificates and the identity of the Rating Agencies. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the following paragraph, be (i) reported by the parties set forth on Exhibit U to this Agreement to the Depositor, the Certificate Administrator and each Other Depositor and Other Exchange Act Reporting Party to which such Additional Form 10-D Disclosure is relevant for Exchange Act reporting purposes and (ii) approved by the Depositor and each such Other Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure absent such reporting, direction and approval. For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, within one (1) Business Day after the related Distribution Date (using commercially reasonable efforts), but in no event later than noon (New York City time) on the third Business Day after the related Distribution Date, (i) certain parties to this Agreement, as set forth on Exhibit U to this Agreement, shall be required to provide to the Certificate Administrator, the Depositor, and each Other Exchange Act Reporting Party and Other Depositor to which the particular Additional Form 10-D Disclosure is relevant for Exchange Act reporting purposes, to the extent a Servicing Officer or Responsible Officer thereof has knowledge thereof (other than information required by Item 1117 of Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be or any lawyer in the in-house legal department of such party) in EDGAR-Compatible Format (to the extent available to such party in such format), or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and each such Other Exchange Act Reporting Party, each such Other Depositor and such parties, the form and substance of the Additional Form 10-D Disclosure, if applicable, (ii) the parties listed on Exhibit U to this Agreement shall include with such Additional Form 10-D Disclosure application to such party and shall cause each Sub-Servicer (or, in the
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case of each Sub-Servicer set forth on Exhibit S, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to provide, and if received, include, an Additional Disclosure Notification in the form attached as Exhibit W to this Agreement and (iii) the Depositor shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit U to this Agreement of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information. The Depositor will be responsible for any reasonable fees assessed or expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
The Certificate Administrator shall include in any Form 10-D filed by it with respect to the Trust (i) the information required by Rule 15Ga-1(a) of the Exchange Act concerning all assets of the Trust that were subject of a demand for the repurchase of, or the substitution of a Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by Section 2.03(a) of this Agreement, (ii) a reference to the most recent Form ABS-15G filed by the Depositor and the Commission’s assigned “Central Index Key” for the Depositor, which information the Depositor shall deliver to the Certificate Administrator, and (iii) a reference to the most recent Form ABS-15G filed by each Mortgage Loan Seller and the Commission’s assigned “Central Index Key” for each such filer, which information each Mortgage Loan Seller is required to deliver to the Certificate Administrator pursuant to Section 6(i) of the applicable Loan Purchase Agreement.
(a) After preparing the Form 10-D, the Certificate Administrator shall forward electronically a copy of the Form 10-D to the Depositor for review. Within two (2) Business Days after receipt of such copy, but no later than the 9th calendar day after the related Distribution Date or, if the 9th calendar day after the related Distribution Date is not a Business Day, the immediately preceding Business Day, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D. Within two (2) Business Days after receipt of such copy, but no later than two (2) Business Days prior to the 15th calendar day after the related Distribution Date, an officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Upon receipt of such signed Form 10-D (in electronic form or by fax copy), the Certificate Administrator shall deem such report to be approved by the Depositor and shall proceed with filing such report with the Commission. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 10.02(a) of this Agreement. Promptly after filing with the Commission, the Certificate Administrator will make available on its internet website a final executed copy of each Form 10-D prepared and filed by the Certificate Administrator. The signing party at the Depositor can be contacted at Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, New York, New York 10010 Attention: Chuck Lee, fax number: (212) 322-0965, email: chuck.lee@credit-suisse.com, with copies to: Credit Suisse, Commercial Real Estate & CMBS, One Madison Ave, 9th Floor, New York, New York 10010 Sarah Nelson, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of
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its duties under this Section 10.03 related to the timely preparation and filing of Form 10-D is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 10.03. The Certificate Administrator shall have no liability for any loss, expense, damage, or claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-D, where such failure results because required disclosure information was either not delivered to the Certificate Administrator or delivered to the Certificate Administrator after the delivery deadlines set forth in this Agreement, not resulting from its own negligence, bad faith or willful misconduct.
(b) Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-D, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than the day on which the Depositor provided its signature for such filing pursuant to Section 10.03(a) of this Agreement.
Section 10.04 Form 10-K Filings.
(a) Within 90 days after the end of each fiscal year of the Trust (it being understood that the fiscal year of the Trust ends on December 31 of each year) or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”), commencing within 90 days after December 31, 2015, the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-K then required by the Exchange Act, in form and substance as then required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator (in the form required by this Agreement) within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each certifying Person and each Additional Servicer engaged by each certifying Person or the Special Servicer, as described under Section 10.07; provided that the related signature pages may be delivered separately from such compliance statement,
(ii) (A) the annual reports on assessment of compliance with Servicing Criteria for each Reporting Servicer, as described under Section 10.08, and
(B) if any such report on assessment of compliance with Servicing Criteria described under Section 10.08 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if such report on assessment of compliance with Servicing Criteria described under Section 10.08 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included,
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(iii) (A) the registered public accounting firm attestation report for each Reporting Servicer, as described under Section 10.09, and
(B) if any registered public accounting firm attestation report described under Section 10.09 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included, and
(iv) a certification in the form attached to this Agreement as Exhibit X, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the “Sarbanes-Oxley Certification”), which shall, except as described below, be signed by the senior officer of the Depositor in charge of securitization; provided that the related signature pages may be delivered separately.
Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the following paragraph, be (i) reported by the parties set forth on Exhibit V to this Agreement to the Depositor and the Certificate Administrator and any Other Depositor and Other Exchange Act Reporting Party to which such Additional Form 10-K Disclosure is relevant for Exchange Act reporting purposes and (ii) approved by the Depositor and such Other Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, absent such reporting, direction and approval.
Not later than the end of each fiscal year for which the Trust is required to file a Form 10-K, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor and the Trustee shall provide the other parties to this Agreement and the Mortgage Loan Sellers with written notice of the name and address of each Servicing Function Participant retained by such party, if any, during such fiscal year. Not later than the end of each fiscal year for which the Trust is required to file a Form 10-K, the Certificate Administrator shall, upon request (which can be in the form of electronic mail and which may be continually effective), provide to each Mortgage Loan Seller written notice of any change in the identity of any party to this Agreement, including the name and address of any new party to this Agreement.
For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, no later than March 1, commencing in March 2016, (i) the parties listed on Exhibit V to this Agreement shall be required to provide (and (i) with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant to provide, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to provide) to the Certificate Administrator, the Depositor and each Other Exchange Act Reporting Party and Other Depositor to which the particular Additional Form 10-K Disclosure is relevant for Exchange Act reporting purposes, to the extent a Servicing Officer or a Responsible Officer, as the case may be, thereof has actual knowledge (other than information required by Item 1117 of
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Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be or any lawyer in the in-house legal department of such party), in EDGAR-Compatible Format (to the extent available to such party in such format) or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor, each such Other Exchange Act Reporting Party, each such Other Depositor and such providing parties, the form and substance of any Additional Form 10-K Disclosure described on Exhibit V to this Agreement applicable to such party, (ii) the parties listed on Exhibit V to this Agreement shall include with such Additional Form 10-K Disclosure applicable to such party and shall cause each Sub-Servicer (or, in the case of each Sub-Servicer set forth on Exhibit S, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to provide, and if received, include, an Additional Disclosure Notification in the form attached as Exhibit W to this Agreement, and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit V to this Agreement of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. The Depositor will be responsible for any reasonable fees assessed and expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
After preparing a Form 10-K, the Certificate Administrator shall forward electronically a preliminary copy of the Form 10-K to the Depositor for review no later than March 15 in the year immediately following the year as to which such Form 10-K relates, or, if March 15 is not a Business Day, on the immediately following Business Day. Within three (3) Business Days after receipt of such copy, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes or approval to such preliminary Form 10-K. The Certificate Administrator shall provide a complete Form 10-K to the Depositor for review no later than March 21 in the year immediately following the year as to which such Form 10-K relates, or if March 21 is not a Business Day, on the immediately following Business Day. Within three (3) Business Days after receipt of such complete Form 10-K, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes or approval to such complete Form 10-K. No later than 5:00 p.m. (New York City time) on the third Business Day prior to the 10-K Filing Deadline, a senior officer of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Upon receipt of such signed Form 10-K (in electronic form or by fax copy), the Certificate Administrator shall deem such report to be approved by the Depositor and shall proceed with filing such report with the Commission. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 10.02(a). Promptly after filing with the Commission, the Certificate Administrator will make available on the Certificate Administrator’s Website a final executed copy of each Form 10-K prepared and filed by the Certificate Administrator. The signing party at the Depositor can be contacted at Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, New York, New York 10010 Attention: Chuck Lee, fax number: (212) 322-0965, email: chuck.lee@credit-suisse.com, with copies to: Credit Suisse, Commercial Real Estate & CMBS, One Madison Ave, 9th Floor, New York, New York 10010
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Sarah Nelson, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 10.04 related to the timely preparation and filing of Form 10-K is contingent upon the parties to this Agreement (and any Additional Servicer or Servicing Function Participant engaged or utilized, as applicable, by any such parties) observing all applicable deadlines in the performance of their duties under this Section 10.04. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-K, where such failure results because required disclosure information was either not delivered to the Certificate Administrator or delivered to the Certificate Administrator after the delivery deadlines set forth in this Agreement, not resulting from its own negligence, bad faith or willful misconduct.
(b) Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-K, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than the day on which the Depositor provided its signature for such filing pursuant to Section 10.04(a) of this Agreement.
Section 10.05 Sarbanes-Oxley Certification. Each Form 10-K shall include a Sarbanes-Oxley Certification in the form attached to this Agreement as Exhibit X required to be included therewith pursuant to the Sarbanes-Oxley Act. The Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor shall provide (and (i) with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant to provide, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to provide) to the Person who signs the Sarbanes-Oxley Certification (the “Certifying Person”) no later than March 15 in the year following the year as to which such Form 10-K relates or, if March 15 is not a Business Day, on the immediately following Business Day, a certification in the form attached to this Agreement as Exhibit Y-1, Exhibit Y-2, Exhibit Y-3 and Exhibit Y-4, as applicable, on which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely. With respect to each Non-Serviced Mortgage Loan serviced under the Other Pooling and Servicing Agreement, the Certificate Administrator will use commercially reasonable efforts to procure a Sarbanes-Oxley back-up certification similar in form and substance to the applicable certification from the related Other Master Servicer, the related Other Special Servicer, the related Other Paying Agent and the related Other Trustee. In the event any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable Sub-Servicing Agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a certification to the Certifying Person pursuant to this Section 10.05 with respect to the period of time it was subject
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to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be.
Section 10.06 Form 8-K Filings. Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor, the Certificate Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) that is approved by the Depositor shall, pursuant to the following paragraph, be reported by the applicable parties set forth on Exhibit Z to this Agreement to the Depositor, the Certificate Administrator, and each Other Depositor and Other Exchange Act Reporting Party to which such Form 8-K Disclosure Information is relevant for Exchange Act reporting purposes, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, absent such reporting, direction and approval.
For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, to the extent a Servicing Officer or Responsible Officer thereof has actual knowledge of such event (other than Item 1117 of Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be or any lawyer in the in-house legal department of such party), within one (1) Business Day after the occurrence of a Reportable Event (using commercially reasonable efforts), but in no event later than 1:00 p.m. (New York City time) on the second Business Day after the occurrence of a Reportable Event, (i) the parties set forth on Exhibit Z to this Agreement shall be required to provide (and (i) with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant to provide, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to provide) to the Depositor, the Certificate Administrator and each Other Depositor and Other Exchange Act Reporting Party to which the particular Form 8-K Disclosure Information is relevant for Exchange Act reporting purposes, in EDGAR-Compatible Format (to the extent available to such party in such format) or in such other format as otherwise agreed upon by the Depositor, the Certificate Administrator, each such Other Depositor, each such Other Exchange Act Reporting Party and such providing parties any Form 8-K Disclosure Information described on Exhibit Z to this Agreement as applicable to such party, if applicable (ii) the parties listed on Exhibit Z to this Agreement shall include with such Form 8-K Disclosure Information applicable to such party and shall cause each Sub-Servicer (or, in the case of each Sub-Servicer set forth on Exhibit S, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to provide, and if received, include, an Additional Disclosure Notification in the form attached hereto as Exhibit W, and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit V of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable fees assessed or expenses
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incurred by the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Certificate Administrator shall forward electronically a copy of the Form 8-K to the Depositor for review no later than 1:00 p.m. (New York City time) on the third Business Day after the Reportable Event (but in no event earlier than 24 hours after having received approved Form 8-K Disclosure Information pursuant to the immediately preceding paragraph). Promptly, but no later than the close of business on the third Business Day after the Reportable Event, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. No later than noon on the fourth Business Day after the Reportable Event, a duly authorized representative of the Depositor shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 10.02(a) of this Agreement. Promptly after filing with the Commission, the Certificate Administrator will, make available on its internet website a final executed copy of each Form 8-K, to the extent such Form 8-K has been prepared and filed by the Certificate Administrator. The signing party at the Depositor can be contacted at Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, New York, New York 10010 Attention: Chuck Lee, fax number: (212) 322-0965, email: chuck.lee@credit-suisse.com, with copies to: Credit Suisse, Commercial Real Estate & CMBS, One Madison Ave, 9th Floor, New York, New York 10010 Sarah Nelson, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 10.06 related to the timely preparation and filing of Form 8-K is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 10.06. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from the parties to this Agreement needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.
In the case of a Form 8-K that is filed by or on behalf of the Trust as a result of the termination, removal, resignation or any other replacement of the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator under this Agreement, the proposed successor Master Servicer, Special Servicer, Trustee or Certificate Administrator, as applicable, shall, as a condition to such succession and at the reasonable expense of the same party or parties required to pay the costs and expenses relating to such termination, removal, resignation or other replacement pursuant to this Agreement, provide to the Certificate Administrator and the Depositor on or before the date of such proposed succession the following: (i) any information (including, but not limited to, disclosure information) required for the Trust to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K and (ii) such opinion(s) of counsel, certifications and/or indemnification agreement(s) with respect to such information that are substantially similar to those delivered by the initial Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as the case may be, or their
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respective counsel, in connection with the information concerning such party in the Prospectus Supplement and/or any other disclosure materials relating to this Trust.
Section 10.07 Annual Compliance Statements. The Master Servicer, the Special Servicer, the Custodian and the Certificate Administrator shall furnish (and the Master Servicer, the Special Servicer, the Custodian and the Certificate Administrator (i) with respect to any Additional Servicer of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Additional Servicer to furnish, and (ii) with respect to any other Additional Servicer of such party (other than any party to this Agreement), shall cause such Additional Servicer to furnish) (each such Additional Servicer and each of the Master Servicer, the Special Servicer and the Certificate Administrator, a “Certifying Servicer”) to the Depositor, the Certificate Administrator, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party, and the Operating Advisor (only in the case of an Officer’s Certificate furnished by the Special Servicer and after the occurrence and during the continuance of a Control Termination Event) on or before March 15 of each year, in an EDGAR Compatible Format, commencing in March 2016, an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s activities during a reporting period consisting of the preceding calendar year or portion thereof and of such Certifying Servicer’s performance under this Agreement, or the applicable Sub-Servicing Agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer has fulfilled all its obligations under this Agreement, or the applicable Sub-Servicing Agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such reporting period, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. The Master Servicer and the Special Servicer shall, and the Master Servicer and the Special Servicer shall cause (or, in the case of an Additional Servicer that is a Mortgage Loan Seller Sub-Servicer, shall use its commercially reasonable efforts to cause) each Additional Servicer hired by it to, forward a copy of each such statement to, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider. Promptly after receipt of each such Officer’s Certificate, the Depositor (and, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party) may review each such Officer’s Certificate and, if applicable, consult with the Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer, respectively, or any related Additional Servicer with which the Master Servicer or the Special Servicer, as applicable, has entered into a servicing relationship with respect to the Mortgage Loans or the Companion Loans in the fulfillment of any Certifying Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement. The obligations of each Certifying Servicer under this Section apply to each Certifying Servicer that serviced a Mortgage Loan or Companion Loan during the applicable period, whether or not the Certifying Servicer is acting in such capacity at the time such Officer’s Certificate is required to be delivered.
With respect to any Non-Serviced Mortgage Loan serviced under the applicable Other Pooling and Servicing Agreement, the Certificate Administrator shall request, and upon
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receipt deliver to the Depositor, from the related Other Master Servicer, the related Other Special Servicer, the related Other Trustee, the related Other Paying Agent or the related Other Certificate Administrator an Officer’s Certificate in form and substance similar to the Officer’s Certificate described in this Section or such other form as is set forth in the applicable Other Pooling and Servicing Agreement. The Certificate Administrator shall notify the Depositor if such Officer’s Certificate has been requested from an Other Master Servicer, Other Special Servicer, Other Trustee, Other Paying Agent or Other Certificate Administrator but has not been delivered within 3 Business Days.
Section 10.08 Annual Reports on Assessment of Compliance with Servicing Criteria.
On or before March 15 of each year commencing in March 2016, the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Operating Advisor, each at its own expense, shall furnish in an EDGAR Compatible Format (and each of the preceding parties, as applicable, (i) with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant to furnish, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to furnish) (the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor and any Servicing Function Participant, as the case may be, a “Reporting Servicer”) to the Certificate Administrator, the Trustee, in the case of a Serviced Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party, the Custodian, the Operating Advisor (only in the case of a report furnished by the Special Servicer and after the occurrence and during the continuance of a Control Termination Event) and the Depositor, a report on an assessment of compliance with the Relevant Servicing Criteria that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria during and as of the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 10.04 of this Agreement, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria during and as of the end of such period. Copies of all compliance reports delivered pursuant to this Section 10.08 shall be provided to any Certificateholder, upon the written request thereof, by the Certificate Administrator. Each such report shall be addressed to the Depositor and each Other Depositor (if addressed) and signed by an authorized officer of the applicable company, and shall address each of the Relevant Servicing Criteria specified on a certification substantially in the form of Exhibit O to this Agreement delivered to the Depositor on the Closing Date. Promptly after receipt of each such report, (i) the Depositor and each Other Depositor may review each such report and, if applicable, consult with the each Reporting Servicer as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria, and (ii) the Certificate Administrator shall confirm that the assessments, taken individually address the Relevant
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Servicing Criteria for each party as set forth on Exhibit O to this Agreement and notify the Depositor of any exceptions.
(a) On the Closing Date, the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Operating Advisor each acknowledge and agree that Exhibit O to this Agreement sets forth the Relevant Servicing Criteria for such party.
(b) No later than the end of each fiscal year for the Trust, the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Operating Advisor shall notify the Certificate Administrator, the Depositor, each Other Exchange Act Reporting Party and each Other Depositor as to the name of each Servicing Function Participant utilized by it, and the Certificate Administrator shall notify the Depositor and each Other Depositor as to the name of each Servicing Function Participant utilized by it, during such fiscal year, and each such notice will specify what specific Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant. When the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor and any Servicing Function Participant submit their assessments pursuant to Section 10.08(a) of this Agreement, such parties will also at such time include the assessment (and related attestation pursuant to Section 10.09 of this Agreement) of each Servicing Function Participant engaged by it. The fiscal year for the Trust shall be January 1 through and including December 31 of each calendar year.
(c) In the event the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator or the Operating Advisor is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each such party shall cause (or, if the Servicing Function Participant is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause) any Servicing Function Participant of such party to provide (and the Master Servicer, the Special Servicer and the Certificate Administrator shall, with respect to any Servicing Function Participant that resigns or is terminated under any applicable servicing agreement, cause such Servicing Function Participant (or, in the case of each Servicing Function Participant that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant) to provide) an annual assessment of compliance pursuant to this Section 10.08, coupled with an attestation as required in Section 10.09 of this Agreement with respect to the period of time that the Master Servicer or the Special Servicer was subject to this Agreement or the period of time that the applicable Servicing Function Participant was subject to such other servicing agreement.
With respect to any Non-Serviced Mortgage Loan serviced under the applicable Other Pooling and Servicing Agreement, the Certificate Administrator shall obtain, and upon receipt deliver to the Depositor, an annual report on assessment of compliance as described in this Section 10.08 and an attestation as described in Section 10.09 from the related Other Master Servicer, Other Special Servicer, Other Trustee, Other Paying Agent or Other Certificate Administrator and in form and substance similar to the annual report on assessment of compliance described in this Section 10.08 and the attestation described in Section 10.09. The Certificate Administrator shall notify the Depositor if such annual report on assessment of compliance has been requested from an Other Master Servicer, Other Special Servicer, Other
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Trustee, Other Paying Agent or Other Certificate Administrator but has not been delivered within 3 Business Days.
Section 10.09 Annual Independent Public Accountants’ Servicing Report. On or before March 15 of each year, commencing in March 2016, the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Operating Advisor, each at its own expense, shall cause (and each of the preceding parties, as applicable, (i) with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant to cause, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to cause) a registered public accounting firm (which may also render other services to the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor or the applicable Servicing Function Participant, as the case may be) and that is a member of the American Institute of Certified Public Accountants to furnish a report to the Certificate Administrator in an EDGAR Compatible Format, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party, the Custodian, the Operating Advisor (only in the case of a report furnished on behalf of the Special Servicer and after the occurrence and during the continuance of a Control Termination Event) and the Depositor and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assertion that such Reporting Servicer has complied with the Relevant Servicing Criteria and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board, it is expressing an opinion as to whether such Reporting Servicer’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it is not expressing an overall opinion regarding such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria. In the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each such related accountant’s attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. Copies of such statement will be provided to any Certificateholder, upon the written request thereof, by the Certificate Administrator. Promptly after receipt of such report from the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor or any Servicing Function Participant, (i) the Depositor and each Other Depositor may review the report and, if applicable, consult with the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator or the Operating Advisor as to the nature of any defaults by the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor or any Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans or the Companion Loans, as the case may be, in the fulfillment of any of the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Custodian’s, the Operating Advisor’s or the applicable Servicing Function Participants’ obligations hereunder or under the applicable sub servicing or primary servicing agreement, and
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(ii) the Certificate Administrator shall confirm that each accountants’ attestation report submitted pursuant to this Section relates to an assessment of compliance meeting the requirements of Section 10.08 of this Agreement and notify the Depositor of any exceptions.
Section 10.10 Significant Obligors.
With respect to any Mortgaged Property that secures a Serviced Companion Loan that the applicable Other Depositor has notified the Master Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust that includes such Serviced Companion Loan, solely to the extent that the Master Servicer is in receipt of the updated financial statements of the Significant Obligor for any calendar quarter (other than the fourth calendar quarter of any calendar year) from the Mortgagor or the Special Servicer, as applicable, beginning with the first calendar quarter following receipt of such notice from the Other Depositor, or the updated financial statements of the Significant Obligor for any calendar year, beginning for the calendar year following such notice from the Other Depositor, as applicable, the Master Servicer shall deliver to the Certificate Administrator, on or prior to the day that occurs two (2) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seven (7) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs twelve (12) or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seventeen (17) or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of the Significant Obligor, together with the net operating income of such Significant Obligor for the applicable period as calculated by the Master Servicer in accordance with CREFC® guidelines and (B) if such financial statement receipt occurs less than twelve (12) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than seventeen (17) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of the Significant Obligor, together with the net operating income of such Significant Obligor for the applicable period as reported by the related Mortgagor in such financial statements.
If the Master Servicer does not receive financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten Business Days after the date such financial information is required to be delivered under the related Mortgage Loan Documents, the Master Servicer shall notify the Other Depositor with respect to such Other Securitization Trust that includes the related Companion Loan (and shall cause each applicable Sub-Servicing Agreement to require any related Sub-Servicer to notify such Other Depositor) that it has not received them. The Master Servicer shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements of the related Mortgagor under the related Mortgage Loan Documents.
The Master Servicer shall (and shall cause each applicable Sub-Servicing Agreement to require any related Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the Mortgagor related to such “significant obligor” to obtain the required financial information and is unsuccessful and, within five (5)
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Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed with respect to the Other Securitization Trust, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization Trust. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.
Section 10.11 Indemnification. Each of the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall indemnify and hold harmless each Certification Party, the Depositor, each Other Depositor and any employee, director or officer of the Depositor or any Other Depositor from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such indemnified party, including any reasonable out-of-pocket legal or other expenses incurred by such indemnified party in connection with investigating or defending any such action or claim, and arising out of (i) an actual breach by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, of its obligations under this Article X, (ii) negligence, bad faith or willful misconduct on the part of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party.
The Master Servicer, the Special Servicer and the Certificate Administrator shall cause each Servicing Function Participant of such party that is not a Mortgage Loan Seller Sub-Servicer (and with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant) to indemnify and hold harmless each Certification Party, the Depositor, each Other Depositor, each Companion Loan Holder and any employee, director or officer of the Depositor, any Other Depositor or any Companion Loan Holder from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such indemnified party, including any reasonable out-of-pocket legal or other expenses incurred by such indemnified party in connection with investigating or defending any such action or claim, and arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement or (ii) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (iii) any failure by a Servicer (as defined in Section 10.01(c)) to identify a Servicing Function Participant pursuant to Section 10.01(d), or (iv) delivery of any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party.
In addition, each of the Master Servicer, the Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement) with the Depositor as necessary for the Depositor to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).
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In connection with comments provided to the Depositor from the Commission or its staff regarding information (x) delivered by the Master Servicer, the Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or an Additional Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such Affected Reporting Party to prepare such information, which information is contained in a report filed by the Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s filing of such report, the Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission or its staff for inclusion in the Depositor’s response to the Commission or its staff, unless such Affected Reporting Party elects, with the consent of the Depositor (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission or its staff and negotiate a response and/or resolution with the Commission or its staff; provided, however, that if an Affected Reporting Party is a Servicing Function Participant or Additional Servicer retained by the Master Servicer, the Master Servicer shall receive copies of all material communications pursuant to this Section 10.11. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission or its staff in a timely manner; provided that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor informed of its progress with the Commission or its staff and copy the Depositor on all correspondence with the Commission or its staff and provide the Depositor with the opportunity to participate (at the Depositor’s expense) in any telephone conferences and meetings with the Commission or its staff and (ii) the Depositor shall cooperate with any Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission or its staff with respect to any comments from the Commission or its staff relating to such Affected Reporting Party and to notify the Commission or its staff of such authorization. The Depositor and the Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission or its staff for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor) in connection with the foregoing (other than those costs and expenses required to be at the Depositor’s expense as set forth above) and any amendments to any reports filed with the Commission or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor. Each of the Master Servicer, the Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) with respect to any initial Sub-Servicer engaged by it that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.
If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, the Depositor, any Other Depositor or any employee, director
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or officer of the Depositor or any Other Depositor, then the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Additional Servicer or other Servicing Function Participant (the “Performing Party”) shall contribute to the amount paid or payable to the indemnified party as a result of the losses, claims, damages or liabilities of the indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to Section 10.05, Section 10.07, Section 10.08, or Section 10.09 (or breach of its obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The Master Servicer, the Special Servicer and the Certificate Administrator shall cause each Servicing Function Participant of such party that is not a Mortgage Loan Seller Sub-Servicer (and with respect to any Servicing Function Participant of such party that is a Mortgage Loan Seller Sub-Servicer, shall use commercially reasonable efforts to cause such Servicing Function Participant) to agree to the foregoing indemnification and contribution obligations. This Section 10.11 shall survive the termination of this Agreement or the earlier resignation or removal of the Master Servicer, the Special Servicer or the Certificate Administrator.
Section 10.12 Amendments. This Article X may be amended by the parties hereto pursuant to Section 11.07 of this Agreement for purposes of complying with Regulation AB, the Securities Act or the Exchange Act and/or to conform to standards developed within the commercial mortgage-backed securities market and the Sarbanes-Oxley Act or for purposes of designating the Certifying Person without any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement.
Section 10.13 Regulation AB Notices. With respect to any notice required to be delivered by the Certificate Administrator to the Depositor pursuant to this Article X, the Certificate Administrator may deliver such notice, notwithstanding any contrary provision in this Agreement, via fax to Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, New York, New York 10010 Attention: Chuck Lee, fax number: (212) 322-0965, email: chuck.lee@credit-suisse.com, with copies to: Credit Suisse, Commercial Real Estate & CMBS, One Madison Ave, 9th Floor, New York, New York 10010 Sarah Nelson, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com.
Section 10.14 Termination of the Certificate Administrator. Notwithstanding anything to the contrary contained in this Agreement, the Depositor may terminate the Certificate Administrator upon five (5) Business Days’ notice if the Certificate Administrator fails to comply with any of its obligations under this Article X; provided that (a) such termination shall not be effective until a successor Certificate Administrator shall have accepted the appointment, (b) the Certificate Administrator may not be terminated if (i) it cannot perform its obligations due to its failure to properly prepare or file on a timely basis any Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any Form 12b-25 where such failure results from the Certificate Administrator’s inability or failure to receive, within the exact time frames set forth in this Agreement any information, approval, direction or signature from any other party hereto needed to prepare, arrange for execution or file any such Form 8-K, Form 10-K or
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Form 10-D or any amendments to such forms or any Form 12b-25 not resulting from its own negligence, bad faith or willful misconduct, or (ii) following the Certificate Administrator’s failure to comply with any of such obligations under this Article X on or prior to the dates by which such obligations are to be performed pursuant to, and as set forth in, such Sections, the Certificate Administrator subsequently complies with such obligations before the Depositor gives written notice to it that it is terminated in accordance with this Section 10.14 and (c) the Certificate Administrator may not be terminated if the Certificate Administrator’s failure to comply does not cause it to fail in its obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related deadline for filing such Form 8-K, Form 10-D or Form 10-K, then the Depositor shall cease to have the right to terminate the Certificate Administrator under this Section 10.14 on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.
Section 10.15 Termination of the Master Servicer or the Special Servicer. Notwithstanding anything to the contrary contained in this Agreement, the Depositor may terminate each of the Master Servicer or the Special Servicer, as the case may be, upon five (5) Business Days’ notice if the Master Servicer or the Special Servicer, as applicable, fails to comply with any of its respective obligations under this Article X; provided that such termination shall not be effective until a successor master servicer or special servicer, as applicable, shall have accepted the appointment.
Section 10.16 Termination of Sub-Servicing Agreements. For so long as the Trust or any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each of the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee, as applicable, shall (i) cause each Sub-Servicing Agreement to which it is a party to entitle the Depositor to terminate such agreement (without compensation, termination fee or the consent of any other Person) at any time following any failure of the applicable Sub-Servicer to deliver any Exchange Act reporting items that such Sub-Servicer is required to deliver under Regulation AB or as otherwise contemplated by this Article X and (ii) promptly notify the Depositor following any failure of the applicable Sub-Servicer to deliver any Exchange Act reporting items that such Sub-Servicer is required to deliver under Regulation AB or as otherwise contemplated by this Article X. The Depositor is hereby authorized to exercise the rights described in clause (i) of the preceding sentence in its sole discretion. The rights of the Depositor to terminate a Sub-Servicing Agreement as aforesaid shall not limit any right Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may have to terminate such Sub-Servicing Agreement.
Section 10.17 Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan.
(a) Any other provision of this Article X to the contrary notwithstanding, including, without limitation, any deadlines for delivery set forth in this Article X, in connection with the requirements contained in this Article X that provide for the delivery of information and other items to, and the cooperation with, the Other Depositor and Other Exchange Act Reporting Party of any Other Securitization Trust that includes a Companion Loan, no party hereunder shall be obligated to provide any such items to or cooperate with such Other Depositor or Other Exchange Act Reporting Party until the Other Depositor or Other Exchange Act Reporting Party
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of such Other Securitization Trust has provided each party hereto with not less than 30 days written notice (or, in each case, such shorter period as required for such Other Depositor or Other Exchange Act Reporting Party to comply with related filing obligations, provided that (i) such Other Depositor or Other Exchange Act Reporting Party, as applicable, has provided written notice as soon as reasonably practicable and, concurrently with such written notice, obtain verbal confirmation of receipt of such written notice, in each case, in accordance with Section 11.04 of this Agreement and (ii) such period shall not be less than 3 Business Days) (which shall only be required to be delivered once), setting forth the contact information for such Person(s) and, except as regards the deliveries and cooperation contemplated by Section 10.07, Section 10.08 and Section 10.09 of this Agreement, (i) stating that such Other Securitization Trust is subject to the reporting requirements of the Exchange Act, and (ii) specifying in reasonable detail the information and other items not otherwise specified in this Agreement that are requested to be delivered; provided that if Exchange Act reporting is being requested, such Other Depositor or Other Exchange Act Reporting Party is only required to provide a single written notice to such effect; provided, further, that this notice requirement does not apply to any Companion Loan that is included in any Other Securitization Trust as of the Closing Date. Any reasonable cost and expense of the Master Servicer, Special Servicer, Operating Advisor, Custodian, Trustee and Certificate Administrator in cooperating with such Other Depositor or Other Exchange Act Reporting Party of such Other Securitization Trust (above and beyond their expressed duties hereunder) shall be the responsibility of such Other Depositor or Other Securitization Trust. The parties hereto shall have the right to confirm in good faith with the Other Depositor of such Other Securitization Trust as to whether applicable law requires the delivery of the items identified in this Article X to such Other Depositor and Other Exchange Act Reporting Party of such Other Securitization Trust prior to providing any of the reports or other information required to be delivered under this Article X in connection therewith and (i) upon such confirmation, the parties shall comply with the deadlines for delivery set forth in this Article X with respect to such Other Securitization Trust or (ii) in the absence of such confirmation, the parties shall not be required to deliver such items; provided that no such confirmation will be required in connection with any delivery of the items contemplated by Section 10.07, Section 10.08 and Section 10.09 of this Agreement. Such confirmation shall be deemed given if the Other Depositor or Other Exchange Act Reporting Party for the Other Securitization Trust provides a written statement to the effect that the Other Securitization Trust is subject to the reporting requirements of the Exchange Act and the appropriate party hereto receives such written statement. The parties hereunder shall also have the right to require that such Other Depositor provide them with the contact details of such Other Depositor, Other Exchange Act Reporting Party and any other parties to the Other Pooling and Servicing Agreement relating to such Other Securitization Trust. Each of the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall, upon reasonable prior written request given in accordance with the terms of Section 10.17(a) above, timely provide (to the extent the reasonable cost thereof is paid or caused to be paid by the related Mortgage Loan Seller and subject to a right of the Master Servicer, Special Servicer, the Certificate Administrator or Trustee, as the case may be, to review and approve such disclosure materials), to a holder of a related Serviced Companion Loan, such party’s description contained in the Prospectus Supplement (updated as appropriate by the Master Servicer, the Special Servicer, Certificate Administrator or Trustee, as applicable, at the reasonable cost of the related Mortgage Loan Seller) for inclusion in the disclosure materials relating to any securitization of a Serviced Companion Loan.
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(b) The Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee, upon reasonable prior written request given in accordance with the terms of Section 10.17(a) above, shall each timely provide (to the extent the reasonable cost thereof is paid or caused to be paid by the related Mortgage Loan Seller) to the Other Depositor and any underwriters with respect to any securitization transaction that includes a Serviced Companion Loan such opinion(s) of counsel, certifications and/or indemnification agreement(s) with respect to the updated description referred in Section 10.17(a) with respect to such party, substantially identical to those, if any, delivered by the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the Prospectus Supplement and/or any other disclosure materials relating to this Trust (updated as deemed appropriate by the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, or their respective legal counsel, as the case may be). None of the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator shall be obligated to deliver any such item with respect to the securitization of a Serviced Companion Loan if it did not deliver a corresponding item with respect to this Trust.
(c) Each of the Master Servicer, the Special Servicer, the Trustee and the Certificate Administrator, upon reasonable prior written request given in accordance with the terms of Section 10.17(a) above, shall provide (to the extent the reasonable cost thereof is paid or caused to be paid by the applicable party set forth below in the second or third paragraph, as applicable, of this Section 10.17(c)) to the applicable Other Depositor and the applicable Other Trustee under the Other Pooling and Servicing Agreement related to any Other Securitization Trust the following: (i) any information (including, but not limited to, disclosure information) required for such Other Securitization Trust to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K and (ii) such opinion(s) of counsel, certifications and/or indemnification agreement(s) with respect to such information that are substantially similar to those delivered by the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the Prospectus Supplement and/or any other disclosure materials relating to this Trust.
In the case of a Form 8-K that is filed by or on behalf of an Other Securitization Trust in connection with the closing of this 2015-C3 securitization transaction, the reasonable cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, pursuant to this Section 10.17(c) shall be paid or caused to be paid by the applicable Mortgage Loan Seller that transferred the related Serviced Companion Loan to the related Other Depositor for inclusion in such Other Securitization Trust.
In the case of a Form 8-K that is filed by or on behalf of an Other Securitization Trust as a result of the termination, removal, resignation or any other replacement of the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator under this Agreement, the reasonable cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, pursuant to this Section 10.17(c) shall be paid or caused to be paid by the same party or parties required to pay the costs and
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expenses relating to such termination, removal, resignation or other replacement pursuant to this Agreement.
Section 10.18 Termination of Exchange Act Filings with Respect to the Trust. On or prior to January 30th of the first year in which the Depositor shall provide notice to the Certificate Administrator of its ability under applicable law, to suspend its Exchange Act filings with respect to the Trust, the Certificate Administrator shall prepare and file a Form 15 Suspension Notification relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act or any other form necessary to be filed with the Commission to suspend such reporting obligations. With respect to any reporting period occurring after the filing of such form, the obligations of the parties to this Agreement under Section 10.03, Section 10.04, Section 10.05, Section 10.06 and Section 10.07, solely insofar as they relate to the Trust, shall be suspended. The Certificate Administrator shall provide prompt notice to the Mortgage Loan Sellers and all other parties hereto that such form has been filed. If, after the filing of a Form 15 Suspension Notification or other applicable form, the Depositor shall provide notice to the Certificate Administrator that it is required to resume its Exchange Act filings with respect to the Trust, the Certificate Administrator shall recommence preparing and filing reports on Forms 10-K, 10-D and 8-K with respect to the Trust as required pursuant to Section 10.03, Section 10.04, Section 10.05, Section 10.06 and Section 10.07, and all parties’ obligations under this Article X shall recommence.
ARTICLE
XI
MISCELLANEOUS PROVISIONS
Section 11.01 Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by fax transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.
Section 11.02 Limitation on Rights of Certificateholders. The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust Fund, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust Fund, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust Fund, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.
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No Certificateholder shall have any right to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, the Certificates, any Mortgage Loan or Serviced Whole Loan, unless such Holder previously shall have given to the Trustee a written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of at least 25% of the Voting Rights of any Class of Certificates affected thereby shall have made written request upon the Trustee (with a copy to the Certificate Administrator) to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding. It is understood and intended, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates of any Class shall have any right in any manner whatever by virtue of any provision of this Agreement or the Certificates to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement or the Certificates, except in the manner herein or therein provided and for the equal, ratable and common benefit of all Holders of Certificates of such Class. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 11.03 Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 11.04 Notices. Unless otherwise specifically provided in this Agreement, any communications provided for or permitted hereunder shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given if personally delivered at or mailed by registered mail, postage prepaid (except for notices to the Trustee or the Certificate Administrator which shall be deemed to have been duly given only when received) or only with respect to any addressee of any party to which an electronic email address is set forth below, sent by electronic mail containing language requesting the recipient to confirm receipt thereof, to: (i) in the case of the Depositor, Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, New York, New York 10010 Attention: Chuck Lee, fax number: (212) 322-0965, email: chuck.lee@credit-suisse.com, with copies to: Credit Suisse, Commercial Real Estate & CMBS, One Madison Ave, 9th Floor, New York, New York 10010 Sarah Nelson, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com; (ii) in the case of the Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, 10851 Mastin Street, Suite 700, Overland Park, Kansas 66210, Attention: Executive Vice President – Division Head, fax number: (913) 253-9001, with a copy to Stinson Leonard Street LLP, 1201 Walnut Street, Suite 2900, Kansas City, Missouri 64106-2150, Attention:
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Kenda K. Tomes, fax number: (816) 412-9338, and with respect to e-mail pursuant to Section 11.06 and Section 11.13 of this Agreement, at NoticeAdmin@midlandls.com with a copy to askmidland@midlandls.com and with respect to notices and emails relating to Section 4.02 of this Agreement, at NoticeAdmin@midlandls.com with a copy to askmidland@midlandls.com; (iii) in the case of the Special Servicer, Rialto Capital Advisors, LLC, 790 NW 107th Avenue, 4th Floor, Miami, Florida 33172, Attention: Liat Heller, Facsimile Number: (305) 229-6425, E-mail: liat.heller@rialtocapital.com, with copies to: Rialto Capital Advisors, LLC, 790 NW 107th Avenue, 4th Floor, Miami, Florida 33172, Attention: Jeff Krasnoff, Facsimile Number: (305) 229-6425, Email: jeff.krasnoff@rialtocapital.com, and Rialto Capital Advisors, LLC, 790 NW 107th Avenue, 4th Floor, Miami, Florida 33172, Attention: Niral Shah, Facsimile Number: (305) 229-6425, E-mail: niral.shah@rialtocapital.com, and Rialto Capital Advisors, LLC, 790 NW 107th Avenue, 4th Floor, Miami, Florida 33172, Attention: Adam Singer, Facsimile Number: (305) 229-6425, E-mail: adam.singer@rialtocapital.com, or with respect solely to emails required pursuant to Section 11.06 and Section 11.13 of this Agreement to liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com and adam.singer@rialtocapital.com; (iv) in the case of the Trustee, Wells Fargo Bank, National Association, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services – CSAIL 2015-C3; (v) in the case of the Certificate Administrator and the Custodian, for certificate transfer purposes, Wells Fargo Bank, National Association, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: CMBS – CSAIL 2015-C3, and for all other purposes, Wells Fargo Bank, National Association, 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services – CSAIL 2015-C3, e-mail: cts.cmbs.bond.admin@wellsfargo.com and trustadministrationgroup@wellsfargo.com, and with respect to notices or delivery of information pursuant to Article X hereof, with a copy to cts.sec.notifications@wellsfargo.com and Fax: 410-715-2380, Attention: SEC Notifications; (vi) in the case of the Operating Advisor, Pentalpha Surveillance LLC, 375 N. French Road, Suite 100, Amherst, New York 14228, Attention: Don Simon, Chief Operating Officer, with copies sent contemporaneously via e-mail to don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com, with a copy to Bass, Berry & Sims PLC, 150 Third Avenue South, Nashville, Tennessee 37201, Attention: Jay H. Knight, email: jknight@bassberry.com; (vii) in the case of the Rating Agencies, (a) Moody’s Investors Service, Inc., 7 World Trade Center, New York, New York 10007, Attention: Commercial Mortgage Surveillance Group, fax number: (212) 553- 0300, (b) Fitch Ratings, Inc., One State Street Plaza, 28th Floor, New York, New York 10004, Attention: US CMBS Surveillance, fax number: (212) 635-0295, email: cmbs.surveillance@fitchratings.com, (c) Kroll Bond Rating Agency, Inc., 845 Third Avenue, 4th Floor, New York, New York 10022, Attention: CMBS Surveillance, fax number: (646) 731- 2395 and (d) Morningstar Credit Ratings, LLC, 220 Gibraltar Road, Suite 300, Horsham, PA 19044, Attention: CMBS Surveillance, e-mail: cmbsratings@morningstar.com; (viii) in the case of the Mortgage Loan Sellers, (a) Column Financial, Inc., 11 Madison Avenue, 4th Floor, New York, New York 10010, Attention: N. Dante La Rocca, Facsimile: (646) 935-8520, Email: dante.larocca@credit-suisse.com, with a copy to: Column Financial, Inc., 11 Madison Avenue, 4th Floor, New York, New York 10010, Attention: Sarah Nelson, Esq.; (b) UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: David Schell, with an electronic copy to: UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Henry Chung and Office of General Counsel, with a copy to: UBS AG, 299 Park Avenue, New York, New York 10171, Attention: Chad Eisenberger, Executive Director &
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Counsel; (c) BSPCC, 9 West 57th Street, Suite 4920, New York, New York 10019, Attention: Micah Goodman and David Glenn, with a copy to Cadwalader, Wickersham & Taft LLP, 200 Liberty Street, New York, NY 10281, Attention: Frank Polverino; (d) The Bancorp Bank, 712 Fifth Avenue, 8th Floor, New York, New York 10019, Attention: Ron Wechsler, e-mail: with an electronic copy emailed to rwechsler@thebancorp.com, (e) The Bank of New York Mellon, 225 Liberty Street, New York, New York 10286, Attention: Malay Bansal, with a copy to The Bank of New York Mellon, 101 Barclay Street, 4W, New York, New York 10286, Attention: Sean Fairweather, (ix) in the case of the Underwriters and/or Initial Purchasers, (a) Credit Suisse Securities (USA) LLC, 11 Madison Avenue, New York, New York 10010, Attention: Chuck Lee, email: chuck.lee@credit-suisse.com, with a copy to: Credit Suisse Securities (USA) LLC, One Madison Ave, 9th Floor, New York, New York 10010 Attention: Sarah Nelson, Legal and Compliance Department, fax number: (212) 743-2823, email: sarah.nelson@credit-suisse.com; (b) UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: David Schell, with copies to: UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Henry Chung and Attention: Office of General Counsel, with a copy to: UBS Securities LLC, 153 West 51st Street, New York, New York 10019, Attention: Chad Eisenberger, Executive Director & Counsel and (c) Drexel Hamilton, LLC, 77 Water Street, New York, New York 10005, Attention: John D. Kerin, Director of Debt Syndicate, Facsimile: (646) 412-1500; and (x) in the case of the Controlling Class Representative, RREF II CMBS AIV, LP c/o Rialto Capital Management LLC, 600 Madison Avenue, 12th Floor, New York, New York 10022, facsimile number: (212) 751-4646, Attention: Josh Cromer, and to RREF II CMBS AIV, LP, c/o Rialto Capital Management LLC, 600 Madison Avenue, 12th Floor, New York, New York 10022, facsimile number: (212) 751-4646, Attention: Joseph Bachkosky, or as to each such Person such other address or e-mail address as may hereafter be furnished by such Person to the parties hereto in writing. Any communication required or permitted to be delivered to a Certificateholder shall be deemed to have been duly given when mailed first class, postage prepaid, to the address of such Holder as shown in the Certificate Register. Any communication required or permitted to be delivered to a Beneficial Owner shall be deemed to have been duly given to the extent delivered through the Depository. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.
The obligation of any party to this Agreement to deliver any notices, reports or other information to any Other Depositor, Other Servicer, Other Special Servicer, Other Trustee or Other 17g-5 Information Provider shall be effective in each case only to the extent such party to this Agreement has received notice of the identity and contact information of such Other Depositor, Other Servicer, Other Special Servicer, Other Trustee or Other 17g-5 Information Provider, as applicable. Any such party may conclusively rely on the name and contact information provided by the related Other Depositor, Other Servicer, Other Special Servicer, Other Trustee or Other 17g-5 Information Provider, as applicable, and shall be entitled to assume that the identity and contact information for such Other Depositor, Other Servicer, Other Special Servicer, Other Trustee or Other 17g-5 Information Provider, as applicable, has not changed, absent receipt of written notice from such Other Depositor, Other Servicer, Other Special Servicer, Other Trustee or Other 17g-5 Information Provider, or a replacement thereof under the applicable Other Pooling and Servicing Agreement, of a change with respect to the identity and contact information for such Other Depositor, Other Servicer, Other Special Servicer, Other
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Trustee or Other 17g-5 Information Provider, or a replacement thereof under the applicable Other Pooling and Servicing Agreement, as applicable.
Section 11.05 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then, to the extent permitted by applicable law, such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.06 Notice to the Rule 17g-5 Information Provider, the Depositor and Each Rating Agency.
(a) The Certificate Administrator shall use its commercially reasonable efforts to promptly prepare a written notice, and provide such notice by e-mail to the Rule 17g-5 Information Provider (if the Certificate Administrator is for any reason not the Rule 17g-5 Information Provider) and the Depositor, with respect to each of the following items of which a Responsible Officer of the Certificate Administrator has actual knowledge, and the Rule 17g-5 Information Provider shall promptly upload such notice or information to the Rule 17g-5 Information Provider’s Website and shall, promptly following the posting of such notice to the Rule 17g-5 Information Provider’s Website, notify, or cause the notification of, each Registered Rating Agency (other than any Registered Rating Agency that has indicated to the Rule 17g-5 Information Provider of its election to not receive such notification) by electronic mail of the posting of such notice, which electronic mail may be automatically generated by the Rule 17g-5 Information Provider’s Website:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Termination Event that has not been cured;
(iii) the merger, consolidation, resignation or termination of the Master Servicer, Special Servicer, the Trustee or the Certificate Administrator or any Other Master Servicer, Other Special Servicer or Other Trustee;
(iv) the repurchase of, or substitution of, Mortgage Loans pursuant to Section 2.03;
(v) the final payment to any Class of Certificateholders; and
(vi) any change in the location of the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account or any Distribution Account.
(b) The Master Servicer or the Special Servicer shall promptly furnish by e-mail (or any other form of electronic delivery reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, and the Rule 17g-5 Information Provider) to the Rule 17g-5 Information Provider and the Depositor copies of the following (to the extent not already delivered or made available pursuant to the terms of this Agreement), and the Rule 17g-5 Information Provider shall promptly upload such documents to the Rule 17g-5 Information
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Provider’s 17g-5 Website, and the Rule 17g-5 Information Provider shall, promptly following the posting of such documents to the Rule 17g-5 Information Provider’s Website, notify, or cause notification of, each Registered Rating Agency (other than any Registered Rating Agency that has indicated to the Rule 17g-5 Information Provider of its election to not receive such notification) by electronic mail of the posting of such documents, which electronic mail may be automatically generated by the Rule 17g-5 Information Provider’s Website:
(i) each of its annual statements as to compliance described in Section 10.08 of this Agreement;
(ii) each of its annual independent public accountants’ servicing reports described in Section 10.09 of this Agreement;
(iii) a copy of each operating and other financial statements, rent rolls, occupancy reports, and sales reports to the extent such information is required to be delivered under a Mortgage Loan, in each case to the extent collected pursuant to Section 4.02; and
(iv) upon request, each inspection report prepared in connection with any inspection conducted pursuant to Section 3.18 of this Agreement.
(c) The Certificate Administrator shall promptly furnish by e-mail (or any other form of electronic delivery reasonably acceptable to the Certificate Administrator and the Rule 17g-5 Information Provider) to the Rule 17g-5 Information Provider (if the Certificate Administrator is for any reason not the Rule 17g-5 Information Provider) and the Depositor copies of the items set forth in Section 8.11(b) of this Agreement (to the extent not already delivered or made available pursuant to the terms of this Agreement and to the extent such items were prepared by or delivered to the Certificate Administrator in electronic format), and the Rule 17g-5 Information Provider shall promptly upload such documents to the Rule 17g-5 Information Provider’s Website.
Section 11.07 Amendment. This Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder;
(ii) to correct or supplement any of its provisions which may be inconsistent with any other provisions of this Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error;
(iii) to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced
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Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment);
(iv) to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations;
(v) to make any other provisions with respect to matters or questions arising under this Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder, as evidenced by an opinion of counsel;
(vi) to modify the procedures herein relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under this Agreement); provided, further, that notice of such modification is provided to all parties to this Agreement; and
(vii) to amend or supplement any provision of this Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder;
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under this Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under this Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under this Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser, or (v) adversely affect any
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Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
This Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable;
(iii) change in any manner the obligations or rights of any Mortgage Loan Seller under this Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller;
(iv) change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation;
(v) without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under this Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to this Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to this Agreement;
(vi) adversely affect any Companion Loan Holder in its capacity as such without its consent;
(vii) adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or
(viii) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser.
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In the event that neither the Depositor nor any successor thereto, if any, is in existence, any amendment under this Section 11.07 shall be effective with the consent of the Trustee, the Operating Advisor, the Certificate Administrator, the Special Servicer and the Master Servicer, in writing, and to the extent required by this Section, the Certificateholders or the Companion Loan Holders, the Mortgage Loan Sellers, the Underwriters and/or the Initial Purchasers, as applicable. Promptly after the execution of any amendment, the Master Servicer shall forward a copy thereof to the Trustee, the Operating Advisor, the Certificate Administrator, the Special Servicer, each Companion Loan Holder, each Mortgage Loan Seller, each Underwriter, each Initial Purchaser and the Certificate Administrator and shall furnish a copy of such amendment to each Certificateholder, as applicable, and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, the Rule 17g-5 Information Provider. It shall not be necessary for the consent of Certificateholders or the Companion Loan Holders, the Mortgage Loan Sellers, the Underwriters or the Initial Purchasers, as applicable, under this Section 11.07 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The method of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders or the Companion Loan Holders, the Mortgage Loan Sellers, the Underwriters or the Initial Purchasers, as applicable, shall be subject to such reasonable regulations as the Trustee may prescribe; provided, however, that such method shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment shall be made to this Agreement or any Custodial Agreement unless, if requested by the Master Servicer, the Special Servicer, the Trustee and/or the Certificate Administrator, such party shall have received an Opinion of Counsel, at the expense of the party requesting such amendment (or, if such amendment is required by any Rating Agency to maintain the rating issued by it or requested by the Trustee or the Certificate Administrator for any purpose described in clause (i) or (ii) of the first sentence of this Section, then at the expense of the Trust Fund), to the effect that such amendment will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust at any time that any Certificates are outstanding, and will not cause a tax to be imposed on either Trust REMIC under the REMIC Provisions or on the Grantor Trust (other than a tax at the highest marginal corporate tax rate on net income from foreclosure property). Prior to the execution of any amendment to this Agreement or any Custodial Agreement, the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer may request and shall be entitled to rely conclusively upon an Opinion of Counsel, at the expense of the party requesting such amendment (or, if such amendment is required by any Rating Agency to maintain the rating issued by it or requested by the Trustee or the Certificate Administrator for any purpose described in clause (i), (ii), (iii) or (v) (which do not modify or otherwise relate solely to the obligations, duties or rights of the Trustee or the Certificate Administrator, as applicable) of the first sentence of this Section, then at the expense of the Trust) stating that the execution of such amendment is authorized or permitted by this Agreement, and that all conditions precedent to such amendment are satisfied. Each of the Trustee and the Certificate Administrator may, but shall not be obligated to, enter into any such amendment which affects the Trustee’s or the Certificate Administrator’s, as applicable, own rights, duties or immunities under this Agreement. The party requesting an amendment to this Agreement shall, provide to the Rule 17g-5 Information Provider, for posting
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on the Rule 17g-5 Information Provider’s Website pursuant to Section 11.13 of this Agreement, prior written notice of such proposed amendment.
Section 11.08 Confirmation of Intent. The Depositor intends that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall constitute a sale and not a pledge of security for a loan. If such conveyance is deemed to be a pledge of security for a loan, however, the Depositor intends that the rights and obligations of the parties to such loan shall be established pursuant to the terms of this Agreement. The Depositor also intends and agrees that, in such event, (i) the Depositor shall be deemed to have granted to the Trustee (in such capacity) a first priority security interest in the Depositor’s entire right, title and interest in and to the assets comprising the Trust Fund, including without limitation, the Mortgage Loans, all principal and interest received or receivable with respect to the Mortgage Loans (other than principal and interest payments due and payable prior to the Cut-Off Date and Principal Prepayments received prior to the Cut-Off Date), all amounts held from time to time in the Collection Account, each Distribution Account, the Interest Reserve Account and, if established, the Excess Liquidation Proceeds Reserve Account, the Excess Interest Distribution Account and the REO Account, and all reinvestment earnings on such amounts, and all of the Depositor’s right, title and interest in and to any Insurance Proceeds related to such Mortgage Loans and (ii) this Agreement shall constitute a security agreement under applicable law. This Section 11.08 shall constitute notice to the Trustee pursuant to any of the requirements of the applicable UCC.
Section 11.09 Third-Party Beneficiaries. Except as provided in the next sentence, no Persons other than a party to this Agreement, any Companion Loan Holder (unless it is the Mortgagor under the applicable Companion Loan or an Affiliate thereof) and any Certificateholder, shall have any rights with respect to the enforcement of any of the rights or obligations hereunder. Any Underwriter or Initial Purchaser (with respect to its rights to receive any documents, certifications, information and/or indemnification hereunder and its rights under Section 2.02, Section 5.03 and Section 11.07 of this Agreement), any Companion Loan Holder, any Mortgage Loan Seller (with respect to its rights under Section 2.03, Section 2.03(b), Section 2.03(c), Section 3.09(d)(i), Section 10.04, Section 11.05 and Section 11.07 of this Agreement and its rights as a Privileged Person), any Other Depositor and Other Exchange Act Reporting Party (with respect to its rights under Article X of this Agreement) and, subject to Section 11.02 of this Agreement, any Certificateholder (which are intended third-party beneficiaries of this Agreement) shall have the right to enforce their respective rights and obligations hereunder (in the case of any Companion Loan Holder, to the extent they affect the related Companion Loan and provided that such Companion Loan Holder is not the Mortgagor under the related Companion Loan or an Affiliate thereof) as if each such Person was a party hereto.
Without limiting the foregoing, the parties to this Agreement specifically state that no Mortgagor, property manager or other party to a Mortgage Loan is an intended third-party beneficiary of this Agreement.
Section 11.10 Request by Certificateholders or Companion Loan Holders. Where information or reports are required to be delivered to a Certificateholder or a Companion Loan Holder, as applicable, upon request pursuant to the terms of this Agreement, such request can be in the form of a single blanket request by a Certificateholder or a Companion Loan
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Holder, as applicable, to the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, and, with respect to such Certificateholder or a Companion Loan Holder, as applicable, such request shall be deemed to relate to each date such report or information may be requested. The notice shall set forth the applicable Sections where such reports and information are requested.
Section 11.11 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 11.12 Submission to Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER AND AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW.
Section 11.13 Exchange Act Rule 17g-5 Procedures.
(a) Except as otherwise provided in Section 11.06 of this Agreement or this Section 11.13 or otherwise in this Agreement or as required by law, none of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Custodian shall provide any information directly to, or communicate with, either orally or in writing, any Rating Agency regarding the Certificates or the Mortgage Loans relevant to the Rating Agencies’ surveillance of the Certificates or the Mortgage Loans, including, but not limited to, providing responses to inquiries from a Rating Agency regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates. To the extent that a Rating Agency makes an inquiry or initiates communications with the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Custodian regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates, all responses to such inquiries or communications from such Rating Agency shall be made in writing by the responding party and shall be provided to the Rule 17g-5 Information Provider as provided in Section 11.13(h), whereupon the Rule 17g-5 Information Provider shall promptly post such written response to the Rule 17g-5 Information Provider’s Website following receipt (or, if the responding party is the Rule 17g-5 Information Provider, promptly following preparation) of such response, and the Rule 17g-5 Information Provider shall provide a mechanism to notify each Person that has signed-up for access to the
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17g-5 Information Provider’s Website in respect of the transaction governed by this Agreement each time an additional document is posted to the 17g-5 Information Provider’s Website.
(b) To the extent that any of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Custodian is required to provide any information to, or communicate with, any Rating Agency in accordance with its obligations under this Agreement, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Custodian, as applicable, shall provide such information or communication to the Rule 17g-5 Information Provider electronically as provided in Section 11.13(h), whereupon the Rule 17g-5 Information Provider shall upload such information or communication to the Rule 17g-5 Information Provider’s Website within five (5) Business Days of receipt (or, if the applicable party is the Rule 17g-5 Information Provider, within five (5) Business Days of preparation) of such written information or communication, and the Rule 17g-5 Information Provider shall, promptly after such written information or communication has been uploaded to the Rule 17g-5 Information Provider’s Website, notify, or cause the notification of, each Registered Rating Agency by electronic mail of the posting of such written information or communication. The foregoing shall include any Rating Agency Confirmation request made pursuant to this Agreement, which shall be in writing, with a cover letter indicating the nature of the request and shall include all information the requesting party believes is reasonably necessary for the applicable Rating Agency to make its decision.
(c) The Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor shall be permitted to (but not obligated to) orally communicate with the Rating Agencies regarding any of the Mortgage Loan documents and any other matter related to the Mortgage Loans, the related Mortgaged Properties, the related Mortgagors or any other matters relating to this Agreement or the related Intercreditor Agreement; provided that such party summarizes the information provided to the Rating Agencies in such communication in writing and provides the 17g-5 Information Provider with such written summary in accordance with the procedures set forth in Section 11.06 the same day such communication takes place; provided, further that the summary of such oral communications shall not identify which Rating Agency the communication was with. The 17g-5 Information Provider shall post such written summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 11.06.
(d) Each of the Rule 17g-5 Information Provider, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the Custodian (each, an “Indemnifying Party”) hereby expressly agrees to indemnify and hold harmless the Depositor and its respective officers, directors, shareholders, members, managers, employees, agents, Affiliates and controlling persons, and the Trust Fund (each, an “Indemnified Party”), from and against any and all losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses), joint or several, to which any such Indemnified Party may become subject, under the Securities Act, the Exchange Act or otherwise, pursuant to a third-party claim, insofar as such losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses) arise out of or are based upon (i) such Indemnifying Party’s breach of Section 11.06, Section 11.13(a), Section 11.13(b), Section 11.13(c), Section 11.13(g) or Section 11.13(h) of this Agreement or (ii) a determination by any
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Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Rule 17g-5(a)(3), to the extent caused by any such breach referred to in clause (i) above by the applicable Indemnifying Party and will reimburse such Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim, as such expenses are incurred. The Depositor shall notify each of the Master Servicer and the Special Servicer in writing of any change in the identity or contact information of the Rule 17g-5 Information Provider (if it is not also the Certificate Administrator).
(e) None of the Master Servicer, the Special Servicer, the Certificate Administrator (unless the Certificate Administrator is acting in the capacity of the Rule 17g-5 Information Provider), the Trustee, the Operating Advisor or the Custodian shall have any liability for (i) the Rule 17g-5 Information Provider’s failure to post information provided by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Custodian in accordance with the terms of this Agreement, (ii) any malfunction or disabling of the Rule 17g-5 Information Provider’s Website or (iii) such party’s failure to perform any of its obligations under this Agreement regarding providing information or communication to the Rating Agencies that are required to be performed after the Rule 17g-5 Information Provider posts the related information or communication if the Rule 17g-5 Information Provider fails to notify such party that it has posted such information or communication on the Rule 17g-5 Information Provider’s Website.
(f) None of the foregoing restrictions in this Section 11.13 prohibit or restrict oral or written communications, or providing information, between the Master Servicer or the Special Servicer, on the one hand, and any Rating Agency, on the other hand, with regard to (i) such Rating Agency’s review of the ratings it assigns to the Master Servicer or the Special Servicer, as applicable, (ii) such Rating Agency’s approval of the Master Servicer or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s evaluation of the Master Servicer’s or the Special Servicer’s, as applicable, servicing operations in general; provided, however, that the Master Servicer or the Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans to such Rating Agency in connection with such review and evaluation by such Rating Agency unless: (x) borrower, property or deal specific identifiers are redacted; (y) such information has already been provided to the Rule 17g-5 Information Provider and has been uploaded on to the Rule 17g-5 Information Provider’s Website; or (z) the Rating Agency has confirmed that it does not intend to use such information in undertaking credit rating surveillance.
(g) The Rule 17g-5 Information Provider shall establish and maintain the Rule 17g-5 Information Provider’s Website in the form of a password-protected Internet Website in accordance with this Section 11.13 and Section 11.06 of this Agreement.
(h) The Rule 17g-5 Information Provider shall post on the Rule 17g-5 Information Provider’s Website and make available solely to the Depositor, the Rating Agencies and other NRSROs, the following items, to the extent such items are delivered to it in an electronic document format suitable for website posting (and the parties required to deliver the following information to the Rule 17g-5 Information Provider agree to do so in such format) via
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electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “CSAIL 2015-C3” and an identification of the type of information being provided in the body of such electronic mail (or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the Rule 17g-5 Information Provider if or as may be necessary or beneficial):
(A) all items delivered to the Rule 17g-5 Information Provider pursuant to Section 11.06;
(B) all information and communications delivered to the Rule 17g-5 Information Provider pursuant to Section 11.13(a) and (b); and
(C) any other information delivered to the Rule 17g-5 Information Provider pursuant to this Agreement.
The Rule 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. If any information is delivered or posted in error, the Rule 17g-5 Information Provider may remove it from the Rule 17g-5 Information Provider’s Website. The Certificate Administrator and the Rule 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the Rule 17g-5 Information Provider’s Website. Access will be provided by the Rule 17g-5 Information Provider to (i) the Rating Agencies upon registration at the Rule 17g-5 Information Provider’s Website as a user thereof and (ii) other NRSROs upon registration at the Rule 17g-5 Information Provider’s Website as a user thereof and receipt by the Rule 17g-5 Information Provider of an NRSRO Certification (which certification may be submitted via e-mail to the Rule 17g-5 Information Provider). Questions regarding delivery of information to the Rule 17g-5 Information Provider may be directed to (866) 846-4526 and 17g5informationprovider@ wellsfargo.com (or to such other telephone number or e-mail address as the Rule 17g-5 Information Provider may designate).
In connection with providing access to the Rule 17g-5 Information Provider’s Website, the Rule 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The Rule 17g-5 Information Provider shall not be liable for the dissemination of information in accordance with the terms of this Agreement, makes no representations or warranties as to the accuracy or completeness of such information being made available, and assumes no responsibility for such information. The Rule 17g-5 Information Provider shall not be liable for its failure to make any information available to the Rating Agencies or other NRSROs unless such information was delivered to the Rule 17g-5 Information Provider at the e-mail address set forth herein (or by any other form of electronic delivery reasonably acceptable to Rule 17g-5 Information Provider pursuant to the terms of this Agreement), with a subject heading of “CSAIL 2015-C3” and sufficient detail to indicate that such information is required to be posted on the Rule 17g-5 Information Provider’s Website. In connection with notifying a Registered Rating Agency of any information posted to the Rule 17g-5 Information Provider’s Website, the Rule 17g-5 Information Provider shall only be responsible for sending such notices to the electronic mail address of such Registered Rating Agency as provided by such Registered
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Rating Agency upon its registration as user of the Rule 17g-5 Information Provider’s Website or upon any subsequent update of such electronic mail address made by such Registered Rating Agency through the Rule 17g-5 Information Provider’s Website, and the Rule 17g-5 Information Provider shall not be responsible for sending any notices to any electronic mail address of any Registered Rating Agency that is not provided to the Rule 17g-5 Information in the manner described in this sentence.
The 17g-5 Information Provider shall make available, only to the Depositor and NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where NRSROs may (i) submit questions to the Certificate Administrator relating to any Distribution Date Statements, or submit questions to the Master Servicer or the Special Servicer, as applicable, relating to the reports prepared by such parties (each such submission, a “Rating Agency Inquiry”), and (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the responses thereto. In addition, NRSROs may use the forum to submit requests (each such submission also, a “Rating Agency Inquiry”) to the Master Servicer for loan-level reports and other related information. Upon receipt of a Rating Agency Inquiry for the Master Servicer or the Special Servicer, the 17g-5 Information Provider shall forward the Rating Agency Inquiry to the appropriate person, in each case within a commercially reasonable period of time following receipt thereof. Following receipt of a Rating Agency Inquiry from the 17g-5 Information Provider, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period of time following receipt of such response) such Rating Agency Inquiry with the related response thereto (or such reports, as applicable) to the Rating Agency Q&A Forum and Document Request Tool. Any reports posted by the 17g-5 Information Provider in response to an inquiry may be posted on a separate website or web page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or any Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege, or the disclosure of attorney work product, or (iii) (A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Trustee) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Trustee, Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Rating Agency Inquiry and shall promptly notify the 17g-5 Information Provider by email of such determination. The 17g-5 Information Provider shall promptly thereafter post the Rating Agency Inquiry with the reason it was not answered to the Rating Agency Q&A Forum and Document Request Tool. The 17g-5 Information Provider will not be liable for the failure by any other such Person to so answer. Questions posted on the Rating Agency Q&A Forum and Document Request Tool shall not be attributed to the submitting NRSRO. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will
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be attributable only to the respondent, and shall not be deemed to be answers from any other person. None of the Initial Purchasers, the Depositor, nor any of their respective Affiliates will certify to any of the information posted in the Rating Agency Q&A Forum and Document Request Tool and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications that are not submitted via the 17g-5 Information Provider’s Website.
(i) In connection with the delivery by the Master Servicer to the Rule 17g-5 Information Provider of any information, report, notice or document for posting to the Rule 17g-5 Information Provider’s Website, the Rule 17g-5 Information Provider shall provide electronic confirmation to the Master Servicer or the Special Servicer, as applicable, of when such information, report, notice or other document has been posted to the Rule 17g-5 Information Provider’s Website, and the Master Servicer or the Special Servicer, as applicable, may (but is not obligated to) send such information, report, notice or other document to the applicable Rating Agency promptly following the earlier of (a) receipt of notification from the Rule 17g-5 Information Provider that such information, report, notice or other document has been posted to the Rule 17g-5 Information Provider’s Website and (b) the second Business Day after it has provided such information, report, notice or other document to the Rule 17g-5 Information Provider.
Section 11.14 Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Loan Agreements. It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan Documents, it is expressly intended that the Mortgage Loan Sellers get the benefit of any securitization indemnification provisions in the Mortgage Loan Documents. Therefore, the Depositor, Master Servicer, Special Servicer and Trustee hereby agree to reasonably cooperate with any Mortgage Loan Seller at the sole reasonable expense of such Mortgage Loan Seller with respect to the benefits of the provisions of any section of a Loan Agreement or securitization cooperation agreement related to indemnification of the lender and/or its affiliates with respect to any securitization of the related Mortgage Loan, including, without limitation, reassignment to the related Mortgage Loan Seller of such sections, but no other portion of the Mortgage Loan Documents, to permit the related Mortgage Loan Seller and its respective affiliates to enforce such provisions for their respective benefits; provided that none of the Depositor, Master Servicer, Special Servicer or Trustee shall be required to take any action that is inconsistent with the Servicing Standard, would violate applicable law, the terms and provisions of this Agreement or the Mortgage Loan Documents, would adversely affect any Certificateholder, would cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, or would result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions. To the extent that the Trustee is required to execute any document facilitating an assignment under this Section 11.14, such document shall be in form and substance reasonably acceptable to the Trustee.
[Signature Pages Follow]
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IN WITNESS WHEREOF,
the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized all as of
the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., as Depositor | ||
By: | /s/ Charles Y. Lee | |
Name: Charles Y. Lee Title: Vice President | ||
MIDLAND LOAN SERVICES, A DIVISION
OF PNC BANK, NATIONAL ASSOCIATION, as Master Servicer | ||
By: | /s/ Bradley J. Hauger | |
Name: Bradley J. Hauger Title: Senior Vice President | ||
RIALTO CAPITAL ADVISORS, LLC, as Special Servicer | ||
By: | /s/ Cheryl Baizan | |
Name: Cheryl Baizan Title: Chief Financial Officer | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator | ||
By: | /s/ Stacey Gross | |
Name: Stacey Gross Title: Vice President |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Stacey Gross | |
Name: Stacey Gross Title: Vice President |
PENTALPHA SURVEILLANCE LLC, as Operating Advisor | ||
By: | /s/ James Callahan | |
Name: James Callahan Title: Executive Director and Solely as an Authorized Signatory for Pentalpha Surveillance LLC |
STATE OF NEW YORK | ) | |
) | ss: | |
COUNTY OF NEW YORK | ) |
On this 17th day of August, 2015, before me, the undersigned, a Notary Public in and for the State of New York, duly commissioned and sworn, personally appeared Charles Y. Lee, to me known who, by me duly sworn, did depose and acknowledge before me and say that he is a Vice President of Credit Suisse First Boston Mortgage Securities Corp., a Delaware corporation, the corporation described in and that executed the foregoing instrument; and that he signed his name thereto under authority of the board of directors of said Delaware corporation and on behalf of such Delaware corporation.
WITNESS my hand and seal hereto affixed the day and year first above written.
/s/ David S Tlusty | |
Notary Public in and for the State of | |
DAVID S TLUSTY NOTARY PUBLIC-STATE OF NEW YORK No. 02TL6313133 Qualified in New York County My Commission Expires October 14, 2018 |
My Commission expires:
[NOTARIAL SEAL]
CSAIL 2015-C3: POOLING AND SERVICING AGREEMENT
STATE OF KANSAS | ) | |
) | ss: | |
COUNTY OF JOHNSON | ) |
On this 11th day of August, 2015, before me, the undersigned, a Notary Public in and for the State of Kansas, duly commissioned and sworn, personally appeared Bradley J. Hauger, to me known who, by me duly sworn, did depose and acknowledge before me and say that he is a Senior Vice President of Midland Loan Services, a Division of PNC Bank, National Association, the entity described in and that executed the foregoing instrument; and that he signed his name thereto under authority of the board of directors of said entity and on behalf of such entity.
WITNESS my hand and seal hereto affixed the day and year first above written.
/s/ Brent Kinder | |
Notary Public in and for the State of Kansas | |
BRENT KINDER NOTARY PUBLIC - State of Kansas My Appt. Exp. January 30, 2018 |
CSAIL 2015-C3: POOLING AND SERVICING AGREEMENT
STATE OF FLORIDA | ) | |
) | ss: | |
COUNTY OF MIAMI-DADE | ) |
On this 17th day of August, 2015, before me, the undersigned, a Notary Public in and for the State of Florida, duly commissioned and sworn, personally appeared Cheryl Baizan, who is personally known to me to me known who, by me duly sworn, did depose and acknowledge before me and say that she is the Chief Financial Officer of Rialto Capital Advisors, LLC, a Delaware limited liability company, the Special Servicer described in and that executed the foregoing instrument; and that she signed her name thereto under authority of the executive committee of the sole member of such limited liability company and on behalf of such limited liability company.
WITNESS my hand and seal hereto affixed the day and year first above written.
/s/ Lori Buckler | |
Notary Public in and for the State of Florida Miami-Dade | |
My Commission expires:
[NOTARIAL SEAL] |
LORI BUCKLER MY COMMISSION EXPIRES February 2, 2018 #FF 059264 NOTARY PUBLIC STATE OF FLORIDA
|
CSAIL 2015-C3: POOLING AND SERVICING AGREEMENT
State of: Maryland | ) |
) ss: | |
County of: Howard | ) |
On the 10th day of August, 2015, before me, a notary public in and for said State, personally appeared Stacey Gross, known to me to be a Vice President of Wells Fargo Bank, N.A., one of the corporations that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
AMY MARTIN NOTARY PUBLIC ANNE ARUNDEL COUNTY MARYLAND My Commission Expires 2-22-201 |
/s/ Amy Martin |
Notary Public | |
CSAIL 2015-C3: POOLING AND SERVICING AGREEMENT
STATE OF CONNECTICUT | ) |
) ss: | |
COUNTY OF FAIRFIELD | ) |
On this 7th day of August, 2015, before me, the undersigned, a Notary Public in and for the State of Connecticut, duly commissioned and sworn, personally appeared James Callahan, to me known who, by me duly sworn, did depose and acknowledge before me and say that he is the Executive Director of Pentalpha Surveillance LLC, a Delaware limited liability company, the person described in and that executed the foregoing instrument; and that he signed his name thereto under authority of the board of directors of said company and on behalf of such company.
WITNESS my hand and seal hereto affixed the day and year first above written.
James M Micik Jr Notary Public State of Connecticut My Commission Expires October 31, 2019 |
/s/ James M Micik Jr |
Notary Public in and for the State of | |
My Commission expires:
[NOTARIAL SEAL] |
CSAIL 2015-C3: POOLING AND SERVICING AGREEMENT
EXHIBIT A-1
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-1
Pass-Through Rate: 1.7167% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-1 Certificates: $60,509,000 | ||
CUSIP: 12635F AQ7
|
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAQ72 |
||
Common Code: 127945446 | ||
No.: A-1-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-1 Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-2, Class A-3, Class A-4, Class A-SB, Class X-
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A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-1 Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-1 Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-1 Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the
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Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-1 Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-1 Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1 Certificate of the entire Percentage Interest represented by the within Class A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1 Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) | ||
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ________________________. This information is provided by _________________________, the Assignee(s) named above or ________________________ as its (their) agent.
By: | ||
[Please print or type name(s)] | ||
Title | ||
Taxpayer Identification Number |
A-1-12 |
EXHIBIT A-2
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
A-2-1 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-2
Pass-Through Rate: 3.0326% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-2 Certificates: $148,324,000 |
CUSIP: 12635F AR5
|
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAR55 |
||
Common Code: 127945462 | ||
No.: A-2-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-2 Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-3, Class A-4, Class A-SB, Class X-A, Class
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X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-2 Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-2 Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-2 Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of
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the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-2 Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-2 Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2 Certificate of the entire Percentage Interest represented by the within Class A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2 Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) | ||
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ______________________________, the Assignee(s) named above or ____________________________________ as its (their) agent.
By: | ||
[Please print or type name(s)] | ||
Title | ||
Taxpayer Identification Number |
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EXHIBIT A-3
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-3
Pass-Through Rate: 3.4465% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-3 Certificates: $200,000,000 |
CUSIP: 12635F AS3
|
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAS39 |
||
Common Code: 127945497 | ||
No.: A-3-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-3 Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-4, Class A-SB, Class X-A, Class
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X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-3 Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-3 Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-3 Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the
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Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-3 Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-3 Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3 Certificate of the entire Percentage Interest represented by the within Class A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3 Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
|
|
Taxpayer Identification Number
|
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ______________________________, the Assignee(s) named above or ____________________________________ as its (their) agent.
By: | ||
[Please print or type name(s)] | ||
Title | ||
Taxpayer Identification Number |
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EXHIBIT A-4
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-4
Pass-Through Rate: 3.7182% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-4 Certificates: $502,390,000 |
CUSIP: 12635F AT1
|
Initial Certificate Principal Amount of this Certificate: $[500,000,000][2,390,000] | |
ISIN: US12635FAT12 |
||
Common Code: 127945519 | ||
No.: [A-4-1][A-4-2] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-4 Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class
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X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-4 Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-4 Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-4 Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the
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Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-4 Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-4 Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-4 Certificate of the entire Percentage Interest represented by the within Class A-4 Certificates to the above-named Assignee(s) and to deliver such Class A-4 Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) | ||
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number _________________________. This information is provided by ___________________________, the Assignee(s) named above or ___________________________ as its (their) agent.
By: | ||
[Please print or type name(s)] | ||
Title | ||
Taxpayer Identification Number |
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EXHIBIT A-5
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-SB
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
2 | Global Certificate legend. |
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-SB
Pass-Through Rate: 3.4481% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-SB Certificates: $82,627,000 |
CUSIP: 12635F AU8
|
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAU84 |
||
Common Code: 127945527 | ||
No.: A-SB-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-SB Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class X-A, Class
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X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-SB Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-SB Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-SB Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the
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Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-SB Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-SB Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-SB Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-SB Certificate of the entire Percentage Interest represented by the within Class A-SB Certificates to the above-named Assignee(s) and to deliver such Class A-SB Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ______________________________, the Assignee(s) named above or ____________________________________ as its (their) agent.
By: |
||
[Please print or type name(s)] |
||
Title |
||
Taxpayer Identification Number |
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EXHIBIT A-6
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNTS OF THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-SB AND CLASS A-S CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CLASS X-A CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
1 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
2 | Global Certificate legend. |
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THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-A
Pass-Through Rate: Variable IO1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Notional Amount of the Class X-A Certificates: $1,080,812,000 | ||
CUSIP: 12635F AV6
|
Initial Notional Amount of this Certificate: $[500,000,000][500,000,000][80,812,000] | |
ISIN: US12635FAV67 | ||
Common Code: 127945535 |
||
No.: [X-A-1][X-A-2][X-A-3] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-A Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class
1 The approximate Pass-Through Rate as of the Closing Date is 1.0395%.
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E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-A Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-A Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-A Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner,
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but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any
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environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
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(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan
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Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
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(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the
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Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-6-10 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-A Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-A Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
A-6-11 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-A Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-A Certificate of the entire Percentage Interest represented by the within Class X-A Certificates to the above-named Assignee(s) and to deliver such Class X-A Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
A-6-12 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number _______________________. This information is provided by ________________________, the Assignee(s) named above or ____________________________________ as its (their) agent.
By: |
||
[Please print or type name(s)] |
||
Title |
||
Taxpayer Identification Number |
A-6-13 |
EXHIBIT A-7
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-B
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE UNDERWRITERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS B CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CLASS X-B CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
1 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
2 | Global Certificate legend. |
A-7-1 |
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-7-2 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-B
Pass-Through Rate: 0.2500% | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Notional Amount of the Class X-B Certificates: $86,961,000 |
CUSIP: 12635F AW4
|
Initial Notional Amount of this Certificate: $[ ] | |
ISIN: US12635FAW41 | ||
Common Code: 127945543 | ||
No.: X-B-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-B Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-B Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
A-7-3 |
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-B Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-B Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
A-7-4 |
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
A-7-5 |
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the |
A-7-6 |
risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan
A-7-7 |
Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
A-7-8 |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be
A-7-9 |
entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-7-10 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-B Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
||
By: |
||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-B Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
||
not in its individual capacity but solely as Authenticating Agent |
||
By: |
||
Authorized Signatory |
A-7-11 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-B Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-B Certificate of the entire Percentage Interest represented by the within Class X-B Certificates to the above-named Assignee(s) and to deliver such Class X-B Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
A-7-12 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ________________________, the Assignee(s) named above or _____________________________ as its (their) agent.
By: |
||
[Please print or type name(s)] |
||
Title |
||
Taxpayer Identification Number |
A-7-13 |
EXHIBIT A-8
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-D
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 | Temporary Regulation S Global Certificate legend. |
2 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
3 | Global Certificate legend. |
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RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS D CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CLASS X-D CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-D
Pass-Through Rate: 1.0000% | |
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). |
Aggregate Initial Notional Amount of the Class X-D Certificates: $72,764,000 |
CUSIP: 12635F
BB91
|
Initial Notional Amount of this Certificate: $[ ] |
ISIN: US12635FBB944 |
|
Common Code: 1279615147 1279615228 | |
No.: [X-D-1][X-D-S-1] |
1 For Rule 144A Certificates
2 For Regulation S Certificates
3 For IAI Certificates
4 For Rule 144A Certificates
5 For Regulation S Certificates
6 For IAI Certificates
7 For Rule 144A Certificates
8 For Regulation S Certificates
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This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-D Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-D Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-D Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-D
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Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case
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of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
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(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
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further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
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(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
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in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
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pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-D Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-D Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-D Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-D Certificate of the entire Percentage Interest represented by the within Class X-D Certificates to the above-named Assignee(s) and to deliver such Class X-D Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by _____________________, the Assignee(s) named above or __________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
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EXHIBIT A-9
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-E
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 Temporary Regulation S Global Certificate legend.
2 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
3 Global Certificate legend.
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RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS E CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CLASS X-E CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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CSAIL 2015-C3 COMMERCIAL
MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-E
Pass-Through Rate: Variable IO1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Notional Amount of the Class X-E Certificates: $35,495,000 |
CUSIP: 12635F
AA22 |
Initial Notional Amount of this Certificate: $[ ] | |
ISIN: US12635FAA215 |
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Common Code: 1279456678 1279457489 |
1 The initial approximate Pass-Through Rate as of the Closing Date is 1.2876%.
2 For Rule 144A Certificates
3 For Regulation S Certificates
4 For IAI Certificates
5 For Rule 144A Certificates
6 For Regulation S Certificates
7 For IAI Certificates
8 For Rule 144A Certificates
9 For Regulation S Certificates
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No.: [X-E-1][X-E-S-1] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-E Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-E Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-E Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related
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Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-E Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO
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Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
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(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; | |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; | |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; | |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; | |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
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further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and | ||
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
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(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; | |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; | |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; | |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; | |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; | |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or | |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
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in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
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pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-E Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-E Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-E Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-E Certificate of the entire Percentage Interest represented by the within Class X-E Certificates to the above-named Assignee(s) and to deliver such Class X-E Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-9-13 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ________________________, the Assignee(s) named above or __________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-9-14 |
EXHIBIT A-10
CSAIL 2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-F
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 Temporary Regulation S Global Certificate legend.
2 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
3 Global Certificate legend.
A-10-1 |
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS F CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CLASS X-F CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-10-2 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-F
Pass-Through Rate: Variable IO1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Notional Amount of the Class X-F Certificates: $14,197,000 |
CUSIP: 12635F
AC82
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Initial Notional Amount of this Certificate: $[ ] | |
ISIN: US12635FAC865 |
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Common Code: 1279456838 1279457649 |
1 The initial approximate Pass-Through Rate as of the Closing Date is 1.2876%.
2 For Rule 144A Certificates
3 For Regulation S Certificates
4 For IAI Certificates
5 For Rule 144A Certificates
6 For Regulation S Certificates
7 For IAI Certificates
8 For Rule 144A Certificates
9 For Regulation S Certificates
A-10-3 |
No.: [X-F-1][X-F-S-1] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-F Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-F Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-F Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related
A-10-4 |
Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-F Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO
A-10-5 |
Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
A-10-6 |
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; | |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; | |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; | |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; | |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
A-10-7 |
further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and | ||
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
A-10-8 |
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; | |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; | |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; | |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; | |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; | |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or | |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
A-10-9 |
in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
A-10-10 |
pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-10-11 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-F Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-F Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-10-12 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-F Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-F Certificate of the entire Percentage Interest represented by the within Class X-F Certificates to the above-named Assignee(s) and to deliver such Class X-F Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-10-13 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by _________________________, the Assignee(s) named above or __________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-10-14 |
EXHIBIT A-11
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-NR
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 Temporary Regulation S Global Certificate legend.
2 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
3 Global Certificate legend.
A-11-1 |
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THE CLASS NR CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CLASS X-NR CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-11-2 |
CSAIL 2015-C3 COMMERCIAL MORTGAGE
TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS X-NR
Pass-Through Rate: Variable IO1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Notional Amount of the Class X-NR Certificates: $65,666,014 |
CUSIP: 12635F
AE42
|
Initial Notional Amount of this Certificate: $[ ] | |
ISIN: US12635FAE435 |
||
Common Code: 1279456918 1279457729 |
1 The initial approximate Pass-Through Rate as of the Closing Date is 1.2876%.
2 For Rule 144A Certificates
3 For Regulation S Certificates
4 For IAI Certificates
5 For Rule 144A Certificates
6 For Regulation S Certificates
7 For IAI Certificates
8 For Rule 144A Certificates
9 For Regulation S Certificates
A-11-3 |
No.: [X-NR-1][X-NR-S-1] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X-NR Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class X-NR Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of interest then distributable, if any, allocable to the Class X-NR Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related
A-11-4 |
Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class X-NR Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO
A-11-5 |
Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
A-11-6 |
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; | |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; | |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; | |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; | |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
A-11-7 |
further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and | ||
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
A-11-8 |
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; | |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; | |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; | |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; | |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; | |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or | |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. | |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
A-11-9 |
in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
A-11-10 |
pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-11-11 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X-NR Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
||
not in its individual capacity but solely as Certificate Administrator |
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By: |
||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-NR Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
||
not in its individual capacity but solely as Authenticating Agent |
||
By: |
||
Authorized Signatory |
A-11-12 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class X-NR Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X-NR Certificate of the entire Percentage Interest represented by the within Class X-NR Certificates to the above-named Assignee(s) and to deliver such Class X-NR Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
A-11-13 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by _______________________, the Assignee(s) named above or _____________________________ as its (their) agent.
By: |
||
[Please print or type name(s)] |
||
Title |
||
Taxpayer Identification Number |
A-11-14 |
EXHIBIT A-12
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-S
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
A-12-1 |
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS A-S
Pass-Through Rate: The lesser of 4.0532% per annum and the WAC Rate | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class A-S Certificates: $86,962,000 | ||
CUSIP: 12635F AX2 |
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAX24 |
||
Common Code: 127945560 | ||
No.: A-S-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A-S Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class B, Class C,
A-12-2 |
Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class A-S Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A-S Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class A-S Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less
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than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve
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Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; | |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; | |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or |
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Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; | |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; | |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and | |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; | |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive
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information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; | |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; | |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; | |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; | |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right |
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of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; | |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or | |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. | |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer)
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of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A-S Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-S Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class A-S Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-S Certificate of the entire Percentage Interest represented by the within Class A-S Certificates to the above-named Assignee(s) and to deliver such Class A-S Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by _____________________, the Assignee(s) named above or ______________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
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EXHIBIT A-13
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS B
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS B
Pass-Through Rate: The WAC Rate minus 0.25%1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class B Certificates: $86,961,000 | ||
CUSIP: 12635F AY0 |
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAY07 | ||
Common Code: 127945578 | ||
No.: B-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class B Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D,
1 The initial approximate Pass-Through Rate as of the Closing Date is 4.2576%.
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Class X-E, Class X-F, Class X-NR, Class A-S, Class C, Class D, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class B Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class B Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class B Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if
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such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each
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Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely |
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affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the
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Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special |
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Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of
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the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class B Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class B Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B Certificate of the entire Percentage Interest represented by the within Class B Certificates to the above-named Assignee(s) and to deliver such Class B Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ________________________, the Assignee(s) named above or ___________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
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EXHIBIT A-14
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS C
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
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CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS C
Pass-Through Rate: WAC Rate1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class C Certificates: $63,891,000 | ||
CUSIP: 12635F AZ7 | Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAZ71 |
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Common Code: 127945594 | ||
No.: C-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class C Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class D, Class E, Class F, Class NR,
1 The initial approximate Pass-Through Rate as of the Closing Date is 4.5076%.
A-14-2 |
Class R and Class Z Certificates (together with the Class C Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class C Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class C Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less
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than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve
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Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or |
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Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); | ||
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive
A-14-6 |
information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right |
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of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; | ||
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer)
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of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class C Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-14-10 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class C Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class C Certificate of the entire Percentage Interest represented by the within Class C Certificates to the above-named Assignee(s) and to deliver such Class C Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-14-11 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number _________________________. This information is provided by ________________________, the Assignee(s) named above or __________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-14-12 |
EXHIBIT A-15
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS D
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]2
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
1 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
2 Global Certificate legend.
A-15-1 |
CSAIL
2015-C3 COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS D
Pass-Through Rate: WAC Rate minus 1.00%1 | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class D Certificates: $72,764,000 |
CUSIP: 12635F BA1 | Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FBA12
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Common Code: 127945616 | ||
No.: D-1 |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class D Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the
1 The initial approximate Pass-Through Rate as of the Closing Date is 3.5076%.
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Class A-1, Class A-2, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class E, Class F, Class NR, Class R and Class Z Certificates (together with the Class D Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class D Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Yield Maintenance Charges, as provided in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class D Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder
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at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox
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Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to |
A-15-5 |
the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling
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and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing |
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Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the
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Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class D Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Certificate Administrator | ||
By: | ||
Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
not in its individual capacity but solely as Authenticating Agent | ||
By: | ||
Authorized Signatory |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class D Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class D Certificate of the entire Percentage Interest represented by the within Class D Certificates to the above-named Assignee(s) and to deliver such Class D Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
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DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by _______________________, the Assignee(s) named above or ________________________ as its (their) agent.
By: |
||
[Please print or type name(s)] |
||
Title |
||
Taxpayer Identification Number |
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EXHIBIT A-16
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS E
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 | Temporary Regulation S Global Certificate legend. |
2 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
3 | Global Certificate legend. |
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RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION,
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HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-16-3 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS E
Pass-Through Rate: The lesser of 3.2200% per annum and the WAC Rate | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class E Certificates: $35,495,000 |
CUSIP: 12635F AG91
|
Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAG904 |
||
Common Code: 1279457057 1279457998 |
1 For Rule 144A Certificates
2 For Regulation S Certificates
3 For IAI Certificates
4 For Rule 144A Certificates
5 For Regulation S Certificates
6 For IAI Certificates
7 For Rule 144A Certificates
8 For Regulation S Certificates
A-16-4 |
No.: [E-1][E-S-1] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class E Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class F, Class NR, Class R and Class Z Certificates (together with the Class E Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class E Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related
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Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class E Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO
A-16-6 |
Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
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(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
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further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
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(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
A-16-10 |
in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
A-16-11 |
pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-16-12 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class E Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-16-13 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class E Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class E Certificate of the entire Percentage Interest represented by the within Class E Certificates to the above-named Assignee(s) and to deliver such Class E Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-16-14 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ________________________, the Assignee(s) named above or ___________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-16-15 |
EXHIBIT A-17
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS F
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 | Temporary Regulation S Global Certificate legend. |
2 | Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. |
3 | Global Certificate legend. |
A-17-1 |
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION,
A-17-2 |
HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-17-3 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS F
Pass-Through Rate: The lesser of 3.2200% per annum and the WAC Rate | ||
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). | |
Aggregate Initial Certificate Principal Amount of the Class F Certificates: $14,197,000 | ||
CUSIP: 12635F AJ31 U2288N AE52
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Initial Certificate Principal Amount of this Certificate: $[ ] | |
ISIN: US12635FAJ304 |
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Common Code: 1279457137 1279458028 |
1 For Rule 144A Certificates
2 For Regulation S Certificates
3 For IAI Certificates
4 For Rule 144A Certificates
5 For Regulation S Certificates
6 For IAI Certificates
7 For Rule 144A Certificates
8 For Regulation S Certificates
A-17-4 |
No.: [F-1][F-S-1] |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class F Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class NR, Class R and Class Z Certificates (together with the Class F Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class F Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
A-17-5 |
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class F Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on
A-17-6 |
or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
A-17-7 |
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
A-17-8 |
further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
A-17-9 |
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
A-17-10 |
in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
A-17-11 |
pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-17-12 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class F Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-17-13 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class F Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class F Certificate of the entire Percentage Interest represented by the within Class F Certificates to the above-named Assignee(s) and to deliver such Class F Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-17-14 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ______________________. This information is provided by _________________________, the Assignee(s) named above or ______________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-17-15 |
EXHIBIT A-18
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS NR
[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2
[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]3
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR
1 Temporary Regulation S Global Certificate legend.
2 Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.
3 Global Certificate legend.
A-18-1 |
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL AMOUNT SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION,
A-18-2 |
HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-18-3 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS NR
Pass-Through Rate: The lesser of 3.2200% per annum and the WAC Rate | |
First Distribution Date: September 17, 2015 | Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). |
Aggregate Initial Certificate Principal Amount of the Class NR Certificates: $65,666,014 |
CUSIP:
12635F AL81
|
Initial Certificate Principal Amount of this Certificate: $[ ] |
ISIN: US12635FAL854 |
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Common Code: 1279457217 1279458298 | |
1 For Rule 144A Certificates
2 For Regulation S Certificates
3 For IAI Certificates
4 For Rule 144A Certificates
5 For Regulation S Certificates
6 For IAI Certificates
7 For Rule 144A Certificates
8 For Regulation S Certificates
A-18-4 |
No.: [NR-1][NR-S-1] | |
This certifies that [ ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class NR Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class R and Class Z Certificates (together with the Class NR Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a “regular interest” in a “real estate mortgage investment conduit,” as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class NR Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
A-18-5 |
Interest accrued on this Certificate during an Interest Accrual Period, plus the aggregate unpaid Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Pooling and Servicing Agreement. The “Interest Accrual Period” with respect to any Distribution Date and with respect to the Class NR Certificates is the calendar month preceding the month in which such Distribution Date occurs and is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on
A-18-6 |
or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
A-18-7 |
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, |
A-18-8 |
further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
A-18-9 |
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included
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in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund
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pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Certificate Administrator has caused this Class NR Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class NR Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-18-13 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto _______________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class NR Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class NR Certificate of the entire Percentage Interest represented by the within Class NR Certificates to the above-named Assignee(s) and to deliver such Class NR Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-18-14 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________. This information is provided by __________________________, the Assignee(s) named above or ____________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-18-15 |
EXHIBIT A-19
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS R
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.
THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
A-19-1 |
ORGANIZATIONS, INSTITUTIONS THAT ARE NOT U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTIONS 5.02 AND 5.03 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS MULTIPLE “NON-ECONOMIC RESIDUAL INTERESTS”, AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.
A-19-2 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS R
Percentage Interest: [ ]% | |
Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). |
CUSIP: 12635F AN4107 |
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ISIN: US12635FAN42108 |
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No.: R-1 |
This certifies that [ ] is the registered owner of an interest in a Trust Fund, including the distributions to be made with respect to the Class R Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificates (together with the Class R Certificates, the “Certificates”; the Holders of Certificates are collectively referred to herein as “Certificateholders”).
107 For Rule 144A Certificates
108 For Rule 144A Certificates
A-19-3 |
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the “residual interest” in two “real estate mortgage investment conduits,” as those terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal Revenue Code of 1986, as amended.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of the aggregate amount, if any, allocable to the Class R Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the
A-19-4 |
Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated
A-19-5 |
transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R |
A-19-6 |
Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent
A-19-7 |
of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less
A-19-8 |
than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final
A-19-9 |
Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-19-10 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class R Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-19-11 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class R Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R Certificate of the entire Percentage Interest represented by the within Class R Certificates to the above-named Assignee(s) and to deliver such Class R Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
|
Taxpayer Identification Number |
A-19-12 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number ____________________________. This information is provided by ________________________, the Assignee(s) named above or _________________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-19-13 |
EXHIBIT A-20
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS Z
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE SPONSORS, THE ORIGINATORS, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE CONTROLLING CLASS REPRESENTATIVE, THE COMPANION LOAN HOLDERS, THE INITIAL PURCHASERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN EACH CASE IN ACCORDANCE WITH FEDERAL SECURITIES LAWS, AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.
A-20-1 |
CSAIL 2015-C3
COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C3, CLASS Z
Percentage Interest: [ ]% | |
Cut-Off Date: With respect to each Mortgage Loan, the Due Date in August, 2015 for that Mortgage Loan (or, in the case of any Mortgage Loan that has its first Due Date in September, 2015, the date that would have been its Due Date in August, 2015 under the terms of that Mortgage Loan if a monthly payment were scheduled to be due in that month). |
CUSIP:
12635F BE3109
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ISIN: US12635FBE34112 |
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No.: [Z-1][Z-S-1] |
This certifies that [ ] is the registered owner of an interest in a Trust Fund, including the distributions to be made with respect to the Class Z Certificates. The Trust Fund, described more fully below, consists primarily of a pool of Mortgage Loans secured by first liens on commercial, multifamily and manufactured housing community properties and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Pooling and Servicing Agreement and is bound thereby. In the event that there is any conflict between any provision of this Certificate and any provision of the Pooling
109 For Rule 144A Certificates
110 For Regulation S Certificates
111 For IAI Certificates
112 For Rule 144A Certificates
113 For Regulation S Certificates
114 For IAI Certificates
A-20-2 |
and Servicing Agreement, such provision of this Certificate shall be superseded to the extent of such inconsistency. Also issued under the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-E, Class X-F, Class X-NR, Class A-S, Class B, Class C, Class D, Class E, Class F, Class R and Class NR Certificates (together with the Class Z Certificates, the “Certificates”; the Holders of Certificates issued under the Pooling and Servicing Agreement are collectively referred to herein as “Certificateholders”).
This Certificate is issued pursuant to, and in accordance with, the terms of a Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a beneficial ownership of Excess Interest and the Excess Interest Distribution Account. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.
The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans and has executed this Certificate in its limited capacity as Certificate Administrator under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator will distribute (other than the final distribution on any Certificate), on the 4th Business Day following the determination date of each month, commencing in September 2015 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount, if any, allocable to the Class Z Certificates for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate) will be made by the Certificate Administrator to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last day of the month immediately preceding the month in which such Distribution Date occurs, or if such day is not a Business Day, the immediately preceding Business Day. Distributions are required to be made (a) by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor, if such Certificateholder provides the Certificate Administrator with wiring instructions no less than five Business Days prior to the related Record Date, or otherwise (b) by check mailed to such Certificateholder. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate
A-20-3 |
Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to Section 9.01 of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Class R Certificateholders all amounts distributable to the Holders thereof. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 9.01 of the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things, Excess Interest actually collected in respect of the Mortgage Loans, as more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes: (i) such Mortgage Loans as from time to time are subject to the Pooling and Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut Off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the related REO Property); (iv) all revenues received in respect of any REO Property (but in the case of each Whole Loan, only to the extent of the Trust’s interest in the revenues received in respect of such REO Property); (v) the Master Servicer’s and the Trustee’s rights, in each case on behalf of the Trust, under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to the Pooling and Servicing Agreement and any proceeds thereof; (vi) the Trustee’s rights on behalf of the Trust in any Assignment of Leases and any security agreements; (vii) the Trustee’s rights on behalf of the Trust under any indemnities or guaranties given as additional security for any Mortgage Loan; (viii) all of the Trustee’s and the Certificate Administrator’s rights, in each case on behalf of the Trust, in the Escrow Accounts and Lockbox Accounts and all proceeds of the Mortgage Loans deposited in the Collection Account, each Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and any REO Account and the Excess Interest Distribution Account, including any reinvestment income thereon; (ix) the Trustee’s rights on behalf of the Trust in any environmental indemnity agreements relating to the Mortgaged Properties; (x) the Depositor’s
A-20-4 |
rights under the Loan Purchase Agreements to the extent assigned to the Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement and (xi) the Lower-Tier Regular Interests.
This Certificate does not purport to summarize the Pooling and Servicing Agreement, and reference is made to the Pooling and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator and Trustee.
As provided in the Pooling and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Administrator shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, and any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Certificate Registrar, or any agent of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Certificate Registrar shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement or any Custodial Agreement may be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, without the consent of any of the Certificateholders or, as applicable, any Companion Loan Holder:
(i) | to cure any ambiguity to the extent that it does not adversely affect any holders of Certificates or any Serviced Companion Loan Holder; |
(ii) | to correct or supplement any of its provisions which may be inconsistent with any other provisions of the Pooling and Servicing Agreement or with the description thereof in the Prospectus or the Prospectus Supplement or to correct any error; |
(iii) | to change the timing and/or nature of deposits in the Collection Account, the Excess Liquidation Proceeds Reserve Account, any Distribution Account or any REO Account, provided that (A) the Master Servicer Remittance Date shall in no event be later than the Business Day prior to the related Distribution Date and (B) the change would not adversely affect in any material respect the interests of any Certificateholder or Serviced Companion Loan Holder, as evidenced by an opinion of counsel (at the expense of the party requesting the amendment); |
A-20-5 |
(iv) | to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of either Trust REMIC as a REMIC or the Grantor Trust as a grantor trust or to avoid or minimize the risk of imposition of any tax on the Trust Fund, provided that the Trustee and the Certificate Administrator have received an opinion of counsel (at the expense of the party requesting the amendment) to the effect that (1) the action is necessary or desirable to maintain such qualification or to avoid or minimize such risk and (2) the action will not adversely affect in any material respect the interests of any holder of the Certificates or, if applicable, any Serviced Companion Loan Holder, (B) to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates, provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee or (C) to the extent necessary to comply with the Investment Company Act, the Exchange Act, Regulation AB, and/or any related regulatory actions and/or interpretations; |
(v) | to make any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable any Serviced Companion Loan Holder, as evidenced by an opinion of counsel; |
(vi) | to modify the procedures in the Pooling and Servicing Agreement relating to Rule 17g-5; provided that such modification does not increase the obligations of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer without such party’s consent (which consent may not be withheld unless such modification would materially adversely affect such party or materially increase such party’s obligations under the Pooling and Servicing Agreement); provided, further that notice of such modification is provided to all parties to the Pooling and Servicing Agreement; and |
(vii) | to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the ratings assigned to each Class of Certificates by any of the Rating Agencies, provided that the amendment will not adversely affect in any material respect the interests of any Certificateholder or, if applicable, any Serviced Companion Loan Holder; |
provided that no amendment pursuant to any of clauses (i)-(vii) above may be made that would (i) reduce the consent or consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Controlling Class Representative without the consent of the Controlling Class Representative; (ii) reduce the consultation rights or the right to receive information under the Pooling and Servicing Agreement of the Operating Advisor without the consent of the Operating Advisor; (iii) change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or the applicable Loan
A-20-6 |
Purchase Agreement without the consent of the affected Mortgage Loan Seller; (iv) change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser; or (v) adversely affect any Companion Loan Holder in its capacity as such without its consent. Expenses incurred with respect to any amendment shall be borne by the party requesting such amendment, unless the Master Servicer, Special Servicer or Trustee is requesting an amendment for the benefit of the Certificateholders, then such expense will be borne by the Trust.
The Pooling and Servicing Agreement or any Custodial Agreement may also be amended from time to time by a writing signed by each of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the consent of the Holders of Certificates representing not less than 66-2/3% of the aggregate Percentage Interests of each Class of Certificates affected by the amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment shall:
(i) | reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans (or Serviced Whole Loans, if applicable) which are required to be distributed on a Certificate of any Class without the consent of the Holder of that Certificate, or that are required to be distributed to any holder of a Serviced Companion Loan without the consent of that holder; |
(ii) | reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to the amendment or remove the requirement to obtain the consent of any Serviced Companion Loan Holder without the consent of the Holders of all Certificates of that Class then-outstanding or the consent of each Serviced Companion Loan Holder, as applicable; |
(iii) | change in any manner the obligations or rights of any Mortgage Loan Seller under the Pooling and Servicing Agreement or a Loan Purchase Agreement without the consent of the affected Mortgage Loan Seller; |
(iv) | change the definition of “Servicing Standard” without either (1) consent of 100% of the holders of the Certificates or (2) Rating Agency Confirmation; |
(v) | without the consent of 100% of the Certificateholders of the Class or Classes of Certificates adversely affected thereby, change (a) the percentages of Voting Rights of Certificateholders which are required to consent to any action or inaction under the Pooling and Servicing Agreement, (b) the right of the Certificateholders to remove the Special Servicer pursuant to the Pooling and Servicing Agreement or (c) the right of the Certificateholders to terminate the Operating Advisor pursuant to the Pooling and Servicing Agreement; |
A-20-7 |
(vi) | adversely affect any Companion Loan Holder in its capacity as such without its consent; |
(vii) | adversely affect the Controlling Class Representative without the consent of 100% of the Controlling Class Certificateholders; or |
(viii) | change in any manner the obligations or rights of any Underwriter or Initial Purchaser, without the consent of the affected Underwriter or Initial Purchaser. |
The Holders of the Controlling Class representing greater than 50% of the Percentage Interest of the Controlling Class may effect an early termination of the Trust Fund, upon not less than 30 days’ prior notice given to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and Master Servicer (whereupon the Master Servicer shall notify the Companion Loan Holders) any time on or after the Early Termination Notice Date specifying the Anticipated Termination Date, by purchasing on such date all, but not less than all, of the Mortgage Loans (and in the case of the Serviced Whole Loans, subject to certain rights of the related Companion Loan Holder provided for in the related Co-Lender Agreement) then included in the Trust Fund, and all property or interests in property acquired by the Trust Fund in respect of any Mortgage Loan, at a purchase price, payable in cash, equal to (i) the sum of (A) the aggregate Purchase Price (excluding the amount described in clause (e) of the definition of Purchase Price) of all the Mortgage Loans (exclusive of REO Mortgage Loans) included in the Trust Fund, (B) the Appraised Value of the Trust’s portion of each REO Property, if any, included in the Trust Fund, as determined by the Special Servicer (such Appraisals in clause (i)(B) shall be obtained by the Special Servicer) and (C) the reasonable out-of-pocket expenses of the Master Servicer (unless the Master Servicer is the purchaser of such Mortgage Loans), the Special Servicer (unless the Special Servicer is the purchaser of such Mortgage Loans), the Trustee and the Certificate Administrator, as applicable, with respect to such termination, minus (ii) solely in the case where the Master Servicer or the Special Servicer is effecting such purchase, the aggregate amount of unreimbursed Advances made by such party, together with any interest accrued and payable to the Master Servicer or the Special Servicer, as applicable, in respect of such Advances and any unpaid Servicing Fees or Special Servicing Fees, as applicable, remaining outstanding (which items will be deemed to have been paid or reimbursed to the purchasing Master Servicer or the Special Servicer, as applicable, in connection with such purchase).
The Holders of the Controlling Class representing greater than 50% of the Certificate Principal Balance of the Controlling Class may (or, if such Holders do not, the Special Servicer, or if neither such Holders nor the Special Servicer do, the Master Servicer or, if neither such Holders nor the Special Servicer nor the Master Servicer does, any Holder of a Class R Certificate representing greater than a 50% Percentage Interest in such Class, may also) effect such termination as provided in the prior paragraph if such party first notifies the Controlling Class Representative and each Certifying Certificateholder, or, in the case of a termination by the Holder of a Class R Certificate, notifies the Certificate Administrator (who shall notify each of the Controlling Class Representative, each Certifying Certificateholder and the Master Servicer) of its intention to do so in writing within 30 days following the Early Termination Notice Date. All costs and expenses incurred by any and all parties to the Pooling and Servicing Agreement or by the Trust Fund in connection with the purchase of the Mortgage Loans and other assets of the
A-20-8 |
Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Certificate Administrator shall be entitled to rely conclusively on any determination made by an Appraiser pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates, the Mortgage Loans and the Serviced Companion Loans (other than the obligation to make certain payments and to send certain notices to Certificateholders as set forth in the Pooling and Servicing Agreement and to make any required remittances to the Serviced Companion Loan Holders in the month in which the final Distribution Date occurs) shall terminate immediately following the earlier to occur of (i) the purchase by the Holders of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates of all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(c) of the Pooling and Servicing Agreement, (ii) the voluntary exchange by the Remaining Certificateholder of its Certificates for all the Mortgage Loans and REO Properties (or interests therein) then included in the Trust Fund pursuant to Section 9.01(h) of the Pooling and Servicing Agreement and (iii) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan or REO Property (or interest therein) contained in the Trust Fund; provided, however, that in no event shall the trust created thereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the United Kingdom, living on the date of the Pooling and Servicing Agreement. All such payments as contemplated by the preceding paragraph shall be deposited into the Collection Account by the Master Servicer or Special Servicer, as applicable promptly following receipt thereof.
Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-20-9 |
IN WITNESS WHEREOF, the Certificate Administrator has caused this Class Z Certificate to be duly executed.
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Certificate Administrator |
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By: |
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Authorized Signatory |
Dated: ______________
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the Pooling and Servicing Agreement.
Dated: ______________
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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not in its individual capacity but solely as Authenticating Agent |
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By: |
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Authorized Signatory |
A-20-10 |
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto ________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Class Z Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class Z Certificate of the entire Percentage Interest represented by the within Class Z Certificates to the above-named Assignee(s) and to deliver such Class Z Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s) |
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Taxpayer Identification Number |
A-20-11 |
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and distributions: ___________________________ Distributions, if being made by wire transfer in immediately available funds to __________________________ for the account of __________________________ account number _______________________. This information is provided by ___________________________, the Assignee(s) named above or ____________________________ as its (their) agent.
By: |
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[Please print or type name(s)] |
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Title |
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Taxpayer Identification Number |
A-20-12 |
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Loan ID # | Originator/Loan Seller | Mortgagor Name | Property Address | City | State | Zip Code | County | Property Name | Size | Measure | Mortgage Rate in Effect at Origination (%) | Net Mortgage Rate in Effect at the Cut-off Date (%) | ||||||||||||
1 | UBSRES | DMP CR Plaza, LLC | 185 Cambridge Street | Boston | MA | 02114 | Suffolk | Charles River Plaza North | 354,594 | Square Feet | 4.1911% | 4.1808% | ||||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | Various | Various | Various | Various | Various | Starwood Capital Extended Stay Portfolio | 6,106 | Rooms | 4.0163% | 4.0060% | ||||||||||||
2.01 | Column | 14090 East Evans Avenue | Aurora | CO | 80014 | Arapahoe | Crestwood Suites Denver - Aurora | 148 | Rooms | |||||||||||||||
2.02 | Column | 4409 Hearst Street | Metairie | LA | 70001 | Jefferson | Sun Suites New Orleans (Metairie) | 132 | Rooms | |||||||||||||||
2.03 | Column | 1101 Manhattan Boulevard | Harvey | LA | 70058 | Jefferson | Sun Suites New Orleans (Harvey) | 126 | Rooms | |||||||||||||||
2.04 | Column | 12485 Gulf Freeway | Houston | TX | 77034 | Harris | Sun Suites Hobby (Clearlake) | 135 | Rooms | |||||||||||||||
2.05 | Column | 200 Russeau Drive | Plano | TX | 75023 | Collin | Sun Suites Plano | 135 | Rooms | |||||||||||||||
2.06 | Column | 3100 West Sam Houston Parkway South | Houston | TX | 77042 | Harris | Sun Suites Westchase | 127 | Rooms | |||||||||||||||
2.07 | Column | 2030 Roswell Road | Marietta | GA | 30062 | Cobb | Crestwood Suites Marietta Roswell Road | 125 | Rooms | |||||||||||||||
2.08 | Column | 11620 Lebon Lane | Stafford | TX | 77477 | Fort Bend | Sun Suites Sugar Land (Stafford) | 146 | Rooms | |||||||||||||||
2.09 | Column | 3215 Capital Boulevard | Raleigh | NC | 27604 | Wake | Sun Suites Raleigh | 137 | Rooms | |||||||||||||||
2.1 | Column | 12010 Kuykendahl Road | Houston | TX | 77067 | Harris | Sun Suites Intercontinental Greenspoint | 135 | Rooms | |||||||||||||||
2.11 | Column | 665 Myatt Drive | Madison | TN | 37115 | Davidson | Crestwood Suites Nashville Madison | 137 | Rooms | |||||||||||||||
2.12 | Column | 555 Lake Center Parkway | Cumming | GA | 30040 | Forsyth | Sun Suites Cumming | 127 | Rooms | |||||||||||||||
2.13 | Column | 1345 Old Fort Parkway | Murfreesboro | TN | 37129 | Rutherford | Crestwood Suites Murfreesboro | 136 | Rooms | |||||||||||||||
2.14 | Column | 3000 Highlands Parkway | Smyrna | GA | 30082 | Cobb | Sun Suites Smyrna | 125 | Rooms | |||||||||||||||
2.15 | Column | 10477 Metric Drive | Dallas | TX | 75243 | Dallas | Sun Suites Dallas - Garland | 135 | Rooms | |||||||||||||||
2.16 | Column | 324 East Corporate Drive | Lewisville | TX | 75067 | Denton | Sun Suites DFW Airport - Lewisville | 135 | Rooms | |||||||||||||||
2.17 | Column | 8530 East Independence Boulevard | Charlotte | NC | 28227 | Mecklenburg | Sun Suites Charlotte - Matthews | 140 | Rooms | |||||||||||||||
2.18 | Column | 8010 Presidents Drive | Orlando | FL | 32809 | Orange | Crestwood Suites Disney Orlando | 144 | Rooms | |||||||||||||||
2.19 | Column | 11424 University Boulevard | Orlando | FL | 32817 | Orange | Crestwood Suites Orlando UCF | 134 | Rooms | |||||||||||||||
2.2 | Column | 1784 Presidential Circle | Snellville | GA | 30078 | Gwinnett | Crestwood Suites Snellville | 130 | Rooms | |||||||||||||||
2.21 | Column | 95 Celebration Drive | Suwanee | GA | 30024 | Gwinnett | Sun Suites Suwanee | 127 | Rooms | |||||||||||||||
2.22 | Column | 3200 Cloverleaf Parkway | Kannapolis | NC | 28083 | Cabarrus | Home Towne Suites Kannapolis | 80 | Rooms | |||||||||||||||
2.23 | Column | 5142 Oakhurst Drive | Corpus Christi | TX | 78411 | Nueces | Sun Suites Corpus Christi | 135 | Rooms | |||||||||||||||
2.24 | Column | 1650 Veterans Memorial Parkway | Tuscaloosa | AL | 35404 | Tuscaloosa | Home Towne Suites Tuscaloosa | 124 | Rooms | |||||||||||||||
2.25 | Column | 8555 Baymeadows Way | Jacksonville | FL | 32256 | Duval | Sun Suites Jacksonville | 135 | Rooms | |||||||||||||||
2.26 | Column | 1520 Crossways Boulevard | Chesapeake | VA | 23320 | Chesapeake | Sun Suites Chesapeake | 135 | Rooms | |||||||||||||||
2.27 | Column | 7071 Lakeridge Court Southwest | Fort Myers | FL | 33907 | Lee | Crestwood Suites Fort Myers | 137 | Rooms | |||||||||||||||
2.28 | Column | 501 Americhase Drive | Greensboro | NC | 27409 | Guilford | Crestwood Suites Greensboro Airport | 137 | Rooms | |||||||||||||||
2.29 | Column | 12989 Research Boulevard | Austin | TX | 78750 | Williamson | Crestwood Suites Austin | 151 | Rooms | |||||||||||||||
2.3 | Column | 3720 Steve Reynolds Boulevard | Duluth | GA | 30096 | Gwinnett | Sun Suites Gwinnett | 102 | Rooms | |||||||||||||||
2.31 | Column | 2353 Barrett Creek Parkway | Marietta | GA | 30066 | Cobb | Crestwood Suites Marietta - Town Center Mall | 133 | Rooms | |||||||||||||||
2.32 | Column | 5222 South Sherwood Forest Boulevard | Baton Rouge | LA | 70816 | East Baton Rouge | Crestwood Suites Baton Rouge | 137 | Rooms | |||||||||||||||
2.33 | Column | 6040 Knology Way | Columbus | GA | 31909 | Muscogee | Home Towne Suites Columbus | 78 | Rooms | |||||||||||||||
2.34 | Column | 12925 Northwest Freeway | Houston | TX | 77040 | Harris | Crestwood Suites NW Houston | 146 | Rooms | |||||||||||||||
2.35 | Column | 1188 Commerce Drive | Auburn | AL | 36830 | Lee | Home Towne Suites Auburn | 64 | Rooms | |||||||||||||||
2.36 | Column | 2235 Mount Zion Parkway | Morrow | GA | 30260 | Clayton | Sun Suites Stockbridge | 126 | Rooms | |||||||||||||||
2.37 | Column | 151 Civic Center Boulevard | Anderson | SC | 29625 | Anderson | Home Towne Suites Anderson | 80 | Rooms | |||||||||||||||
2.38 | Column | 6210 Corporate Drive | Colorado Springs | CO | 80919 | El Paso | Crestwood Suites Colorado Springs | 147 | Rooms | |||||||||||||||
2.39 | Column | 688 Summit Parkway | Prattville | AL | 36066 | Autauga | Home Towne Suites Prattville | 64 | Rooms | |||||||||||||||
2.4 | Column | 2680 North Main Street | High Point | NC | 27265 | Guilford | Crestwood Suites High Point | 137 | Rooms | |||||||||||||||
2.41 | Column | 424 Commons Drive | Birmingham | AL | 35209 | Jefferson | Sun Suites Birmingham | 135 | Rooms | |||||||||||||||
2.42 | Column | 3174 Barrett Lakes Boulevard | Kennesaw | GA | 30144 | Cobb | Sun Suites Kennesaw Town Center | 105 | Rooms | |||||||||||||||
2.43 | Column | 1200 Lanada Road | Greensboro | NC | 27407 | Guilford | Sun Suites Greensboro | 133 | Rooms | |||||||||||||||
2.44 | Column | 2111 West Arlington Boulevard | Greenville | NC | 27834 | Pitt | Home Towne Suites Greenville | 70 | Rooms | |||||||||||||||
2.45 | Column | 121 West Park Drive | Hattiesburg | MS | 39402 | Lamar | Sun Suites Hattiesburg | 116 | Rooms | |||||||||||||||
2.46 | Column | 2125 Jameson Place Southwest | Decatur | AL | 35603 | Morgan | Home Towne Suites Decatur | 70 | Rooms | |||||||||||||||
2.47 | Column | 1929 Mel Browning Street | Bowling Green | KY | 42104 | Warren | Home Towne Suites Bowling Green | 106 | Rooms | |||||||||||||||
2.48 | Column | 9145 Highway 49 | Gulfport | MS | 39503 | Harrison | Sun Suites Gulfport Airport | 128 | Rooms | |||||||||||||||
2.49 | Column | 11 Old Oyster Point Road | Newport News | VA | 23602 | Newport News | Crestwood Suites Newport News | 109 | Rooms | |||||||||||||||
2.5 | Column | 129 Westfield Court | Clarksville | TN | 37040 | Montgomery | Home Towne Suites Clarksville | 70 | Rooms | |||||||||||||||
3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | 1500 South Willow Street | Manchester | NH | 03103 | Hillsborough | The Mall of New Hampshire | 405,723 | Square Feet | 4.1080% | 4.0977% | ||||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | 11160 Veirs Mill Road | Wheaton | MD | 20902 | Montgomery | Westfield Wheaton | 1,649,363 | Square Feet | 3.8000% | 3.7897% | ||||||||||||
5 | Column | Arizona Grand Resort, LLC | 8000 Arizona Grand Parkway | Phoenix | AZ | 85044 | Maricopa | Arizona Grand Resort & Spa | 744 | Rooms | 4.2747% | 4.2644% | ||||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | Various | New York | NY | 10013 | New York | Soho-Tribeca Grand Hotel Portfolio | 554 | Rooms | 4.0211% | 4.0108% | ||||||||||||
6.01 | Column | 310 West Broadway | New York | NY | 10013 | New York | Soho Grand Hotel | 353 | Rooms | |||||||||||||||
6.02 | Column | 2 Avenue of the Americas | New York | NY | 10013 | New York | Tribeca Grand Hotel | 201 | Rooms | |||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | 5065 Main Street | Trumbull | CT | 06611 | Fairfield | Westfield Trumbull | 1,130,472 | Square Feet | 3.8000% | 3.7897% | ||||||||||||
8 | BNYM | Henderson Beach Partners, LLC | 4201 Commons Drive | Destin | FL | 32541 | Okaloosa | Venue Emerald Coast | 233 | Units | 4.2700% | 4.2597% | ||||||||||||
9 | BNYM | Diamond Capital Group, LP | 16542 & 16550 Ventura Boulevard | Encino | CA | 91436 | Los Angeles | 16542 & 16550 Ventura | 95,355 | Square Feet | 4.5800% | 4.5697% | ||||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | 21 Astor Place | New York | NY | 10003 | New York | 21 Astor Place | 11,121 | Square Feet | 4.6100% | 4.5997% | ||||||||||||
11 | Column | Summer Lake Villas LLC | Various | Various | FL | Various | Various | Hendry Multifamily Portfolio | 325 | Units | 4.8900% | 4.8747% | ||||||||||||
11.01 | Column | 4331 Fiji Drive | New Port Richey | FL | 34653 | Pasco | Summer Lake Villas | 144 | Units | |||||||||||||||
11.02 | Column | 1931 West 16th Court | Riviera Beach | FL | 33404 | Palm Beach | Spinnaker Landing | 123 | Units | |||||||||||||||
11.03 | Column | 510 NorthWest 24th Avenue | Fort Lauderdale | FL | 33311 | Broward | New River | 58 | Units | |||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | 3888 Greenwood Street | San Diego | CA | 92110 | San Diego | Hampton Inn - Point Loma | 207 | Rooms | 4.5300% | 4.5197% | ||||||||||||
13 | BNYM | SAC Hospitality LLC | 2200 Harvard Street | Sacramento | CA | 95815 | Sacramento | Hilton Arden West | 335 | Rooms | 4.5600% | 4.5497% | ||||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | 2500 South Damen Avenue | Chicago | IL | 60608 | Cook | 2500 South Damen Avenue | 128,200 | Square Feet | 4.3000% | 4.2897% | ||||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | Various | Various | Various | Various | Various | FL OH Multifamily Portfolio | 543 | Units | 4.3700% | 4.3597% | ||||||||||||
15.01 | BNYM | 705 South Lincoln | Kent | OH | 44240 | Portage | Dartmouth Place | 102 | Units | |||||||||||||||
15.02 | BNYM | 1801 Sugartree Circle | New Smyrna Beach | FL | 32168 | Volusia | Sugartree Apartments | 120 | Units | |||||||||||||||
15.03 | BNYM | 1736 Brownstone Boulevard | Toledo | OH | 43614 | Lucas | Meldon Place | 127 | Units | |||||||||||||||
15.04 | BNYM | 3466 Willowood Place | Grove City | OH | 43123 | Franklin | Willowood Apartments | 72 | Units | |||||||||||||||
15.05 | BNYM | 8015 Stillwater Court | North Fort Myers | FL | 33903 | Lee | Parkway North Apartments | 56 | Units | |||||||||||||||
15.06 | BNYM | 2403 South 25th Street | Fort Pierce | FL | 34981 | Saint Lucie | Sandpiper Apartments | 66 | Units | |||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | 2311 Highland Avenue South | Birmingham | AL | 35205 | Jefferson | The Crescent Building | 139,948 | Square Feet | 4.6974% | 4.6871% | ||||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | 160 Shoreline Highway | Mill Valley | CA | 94941 | Marin | Holiday Inn Express - Mill Valley | 100 | Rooms | 5.0485% | 4.9807% | ||||||||||||
18 | BNYM | 7101 Sunset, LLC | 7101 West Sunset Boulevard | Hollywood | CA | 90046 | Los Angeles | 7101 Sunset Blvd | 37,426 | Square Feet | 4.7400% | 4.6922% | ||||||||||||
19 | BNYM | Peppertree Capital, LP | 16260 Ventura Boulevard | Encino | CA | 91436 | Los Angeles | 16260 Ventura | 60,587 | Square Feet | 4.5800% | 4.5697% | ||||||||||||
20 | BNYM | 250 South Clinton LLC | Various | Syracuse | NY | Various | Onondaga | Syracuse Office Portfolio | 253,200 | Square Feet | 4.6400% | 4.6297% | ||||||||||||
20.01 | BNYM | 250 South Clinton Street | Syracuse | NY | 13202 | Onondaga | 250 Clinton | 182,697 | Square Feet | |||||||||||||||
20.02 | BNYM | 507 Plum Street | Syracuse | NY | 13204 | Onondaga | 507 Plum | 70,503 | Square Feet | |||||||||||||||
21 | Column | Ranch on the River, LP | 1355 Ranch Parkway | New Braunfels | TX | 78130 | Comal | Ranch at Guadalupe | 184 | Units | 4.7000% | 4.6897% | ||||||||||||
22 | UBSRES | BT (Multi) LLC | Various | Various | Various | Various | Various | WPC Department Store Portfolio | 1,002,731 | Square Feet | 4.4065% | 4.3962% | ||||||||||||
22.01 | UBSRES | 95 North Moorland Road | Brookfield | WI | 53005 | Waukesha | Boston Store - Brookfield Square Mall | 211,253 | Square Feet | |||||||||||||||
22.02 | UBSRES | 2400 North Mayfair Road | Wauwatosa | WI | 53226 | Milwaukee | Boston Store - Mayfair Mall | 206,681 | Square Feet | |||||||||||||||
22.03 | UBSRES | 5300 South 76th Street | Greendale | WI | 53129 | Milwaukee | Boston Store - Southridge Mall | 217,434 | Square Feet | |||||||||||||||
22.04 | UBSRES | 303 Bay Park Square | Ashwaubenon | WI | 54304 | Brown | Younkers - Bay Park Square Mall | 132,195 | Square Feet | |||||||||||||||
22.05 | UBSRES | 3340 Mall Loop Drive | Joliet | IL | 60431 | Will | Carson Pirie Scott - Louis Joliet Mall | 126,365 | Square Feet | |||||||||||||||
22.06 | UBSRES | 3902 13th Avenue South | Fargo | ND | 58103 | Cass | Herberger’s - West Acres Mall | 108,803 | Square Feet | |||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | 3300 Enterprise Street | Shafter | CA | 93263 | Kern | FedEx Ground Shafter | 210,115 | Square Feet | 5.0933% | 5.0830% | ||||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | 6601 - 6500 Dunlap Street | Houston | TX | 77074 | Harris | Sterling & Milagro Apartments | 1,179 | Units | 4.2500% | 4.2397% | ||||||||||||
25 | BSP | 1315 Lincoln Owner LLC | 1315 Lincoln Boulevard | Santa Monica | CA | 90401 | Los Angeles | 1315 Lincoln Boulevard | 23,533 | Square Feet | 4.5000% | 4.4897% | ||||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | Various | Cape May | NJ | 08204 | Cape May | Cape May Hotels | 129 | Rooms | 4.8331% | 4.8228% | ||||||||||||
26.01 | UBSRES | 200 Congress Place | Cape May | NJ | 08204 | Cape May | Congress Hall | 108 | Rooms | |||||||||||||||
26.02 | UBSRES | 29 Perry Street | Cape May | NJ | 08204 | Cape May | The Star | 21 | Rooms | |||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | 650 O Street & 705 P Street | Fresno | CA | 93721 | Fresno | PG&E Building - Fresno | 102,580 | Square Feet | 5.1320% | 5.1217% | ||||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | 4237 North Shallowford Road | Atlanta | GA | 30341 | DeKalb | Dunwoody Exchange | 233 | Units | 4.6300% | 4.6197% | ||||||||||||
29 | Column | 4800 Sugar Grove, LLC | 4800 Sugar Grove Boulevard | Stafford | TX | 77477 | Fort Bend | 4800 Sugar Grove | 123,570 | Square Feet | 4.3700% | 4.3597% | ||||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | 101 North Main Street | McAllen | TX | 78501 | Hidalgo | Renaissance Casa De Palmas | 165 | Rooms | 4.8503% | 4.8400% | ||||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | 805-881 Northeast Alsbury Boulevard | Burleson | TX | 76028 | Tarrant | Burleson Town Center | 140,861 | Square Feet | 4.3115% | 4.3012% | ||||||||||||
32 | Column | HH-Laveen, LLC | 3536-3636 West Baseline Road & 7410 South 35th Avenue | Phoenix | AZ | 85339 | Maricopa | HH-Laveen / Laveen Commons | 102,079 | Square Feet | 4.5900% | 4.5697% | ||||||||||||
33 | BSP | NG BIM Colony Plaza LLC | 2121 Windsor Spring Road | Augusta | GA | 30906 | Richmond | Colony Plaza | 216,693 | Square Feet | 4.9500% | 4.9397% | ||||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | 2200 Highway 61 North | Vicksburg | MS | 39183 | Warren | Vicksburg Medical Office Building | 62,436 | Square Feet | 4.7100% | 4.6997% | ||||||||||||
35 | BSP | Millside Plaza LLC | 4004 Route 130 | Delran | NJ | 08075 | Burlington | Millside Plaza | 77,583 | Square Feet | 4.7800% | 4.7697% | ||||||||||||
36 | Column | Self Storage LLC | Various | Various | AL | Various | Various | American Self Storage Portfolio | 2,137 | Units | 4.2500% | 4.2397% | ||||||||||||
36.01 | Column | 2811 John D. Odom Road | Dothan | AL | 36303 | Houston | Odom Road | 378 | Units | |||||||||||||||
36.02 | Column | 1909 South Brannon Stand Road | Dothan | AL | 36305 | Houston | Brannon Stand | 359 | Units | |||||||||||||||
36.03 | Column | 1405 Ross Clark Circle | Dothan | AL | 36301 | Houston | East | 387 | Units | |||||||||||||||
36.04 | Column | 2915 Ross Clark Circle | Dothan | AL | 36301 | Houston | West | 330 | Units | |||||||||||||||
36.05 | Column | 707 East Boll Weevil Circle | Enterprise | AL | 36330 | Coffee | Enterprise | 226 | Units | |||||||||||||||
36.06 | Column | 950 North US Highway 231 | Ozark | AL | 36360 | Dale | Ozark | 238 | Units | |||||||||||||||
36.07 | Column | 4207 Montgomery Highway | Dothan | AL | 36303 | Houston | North | 219 | Units | |||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | 420 South Alvarado Street | Los Angeles | CA | 90057 | Los Angeles | Alvarado Center | 34,179 | Square Feet | 4.3600% | 4.3097% | ||||||||||||
38 | Column | BMA Brookwood Apartments, LLC | 900 Brookwood Circle | Archdale | NC | 27263 | Randolph | Brookwood Apartments | 298 | Units | 4.4400% | 4.4297% | ||||||||||||
39 | UBSRES | Deerfield 21 Corporation | 2096 Northeast 2nd Street | Deerfield Beach | FL | 33441 | Broward | Wyndham Deerfield Beach Resort | 172 | Rooms | 3.8493% | 3.8390% | ||||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | 400 Evergreen Drive | Glen Mills | PA | 19342 | Delaware | Staybridge Suites Brandywine | 110 | Rooms | 4.5100% | 4.4997% | ||||||||||||
41 | Column | Sherwood Equity LLC | 100 Lakeview Drive | Clute | TX | 77531 | Brazoria | Crescentwood Apartments | 216 | Units | 4.6900% | 4.6797% | ||||||||||||
42 | Column | Pickerington Plaza Limited Partnership | 1720-1750 Hill Road North | Pickerington | OH | 43147 | Fairfield | Hunters Run | 88,646 | Square Feet | 4.1700% | 4.1597% | ||||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | 1416 South Main Street | Adrian and Madison Township | MI | 49221 | Lenawee | Crossroads Shopping Center | 201,343 | Square Feet | 4.6000% | 4.5897% | ||||||||||||
44 | Column | Konark Limited Partnership | 8525 Floyd Curl Drive | San Antonio | TX | 78240 | Bexar | Hyperion Apartments | 243 | Units | 4.6900% | 4.6797% | ||||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | 4150 Macland Road | Powder Springs | GA | 30127 | Cobb | Varner Crossing | 80,466 | Square Feet | 4.5770% | 4.5192% | ||||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | Various | Various | Various | Various | Various | Platinum Multifamily Portfolio | 308 | Units | 4.7000% | 4.6897% | ||||||||||||
46.01 | BSP | 1616 Arkansas Road | West Monroe | LA | 71291 | Ouachita Parish | Camellia Apartments | 100 | Units | |||||||||||||||
46.02 | BSP | 301 Hudson Street | El Dorado | AR | 71730 | Union | Hudson Apartments | 132 | Units | |||||||||||||||
46.03 | BSP | 2317 Enterprise | El Dorado | KS | 67042 | Butler | Silverwood Apartments | 76 | Units | |||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | 1310 South Nova Road | Daytona Beach | FL | 32114 | Volusia | Daytona Promenade | 145,417 | Square Feet | 4.6800% | 4.6697% | ||||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | 2280 Corporate Circle | Henderson | NV | 89074 | Clark | 2280 Corporate Circle | 63,959 | Square Feet | 4.7450% | 4.6772% | ||||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | 83614 Doctor Carreon Boulevard; 83655 Date Avenue | Indio | CA | 92201 | Riverside | StorQuest Indio | 940 | Units | 4.4643% | 4.4540% | ||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | 39832, 39840, 39850 & 39872 Los Alamos Road | Murrieta | CA | 92562 | Riverside | Plaza Las Brisas | 85,019 | Square Feet | 4.4700% | 4.4597% | ||||||||||||
51 | BSP | HEC - RNBT LLC | 1608 Broadway Street | El Cajon | CA | 92021 | San Diego | Haggen Grocery El Cajon | 50,607 | Square Feet | 4.8400% | 4.8297% | ||||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | 800 Chester Pike | Sharon Hill | PA | 19079 | Delaware | 800 Chester Pike | 85,514 | Square Feet | 4.7825% | 4.7722% | ||||||||||||
53 | Column | Tara Hills LLC | 101 Elmhurst Drive | Oak Ridge | TN | 37830 | Anderson | Tara Hills Apartments | 214 | Units | 4.3200% | 4.3097% | ||||||||||||
54 | BSP | Baltimore North Hotel LLC | 8825 Yellow Brick Road | Baltimore | MD | 21237 | Baltimore | Country Inn & Suites Baltimore North | 81 | Rooms | 4.7900% | 4.7797% | ||||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | 7965 Cliffbrook Drive | Dallas | TX | 75254 | Dallas | Cliffbrook Condominiums | 134 | Units | 4.7800% | 4.7697% | ||||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | 337-349 Applegarth Road | Monroe | NJ | 08831 | Middlesex | Monroe Town Center | 32,241 | Square Feet | 4.7258% | 4.7155% | ||||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | 90 Lockhart Gulch Road | Scotts Valley | CA | 95066 | Santa Cruz | Storage Depot II (Scotts Valley Self Storage) | 694 | Units | 4.5615% | 4.5037% | ||||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | 33 Bloomfield Hills Parkway | Bloomfield Hills | MI | 48304 | Oakland | Governor’s Place | 63,846 | Square Feet | 4.8900% | 4.8797% | ||||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | 20 South Telegraph Road | Waterford | MI | 48328 | Oakland | Walgreens - Waterford | 14,820 | Square Feet | 4.5700% | 4.5597% | ||||||||||||
60 | The Bancorp Bank | CCBP II LLC | 220 Bordentown Hedding Road | Bordentown | NJ | 08505 | Burlington | Central Crossing | 119,922 | Square Feet | 4.8300% | 4.8197% | ||||||||||||
61 | UBSRES | Chapanoke Square LLC | 3210 South Wilmington Street | Raleigh | NC | 27603 | Wake | Chapanoke Square | 89,663 | Square Feet | 4.3123% | 4.3020% | ||||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | Various | Mentor | OH | 44060 | Lake | Mentor Industrial Portfolio | 208,500 | Square Feet | 4.3988% | 4.3885% | ||||||||||||
62.01 | UBSRES | 9150 Hendricks Road | Mentor | OH | 44060 | Lake | Eye Lighting | 100,000 | Square Feet | |||||||||||||||
62.02 | UBSRES | 9050 Tyler Boulevard | Mentor | OH | 44060 | Lake | Orbis | 108,500 | Square Feet | |||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | 245 West Roosevelt Road | West Chicago | IL | 60185 | DuPage | Bowling Green | 156,344 | Square Feet | 4.4650% | 4.4547% | ||||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | 3738 Harrison Street | Riverside | CA | 92503 | Riverside | Concord Villas | 54 | Units | 4.6000% | 4.5897% | ||||||||||||
65 | The Bancorp Bank | NB Penn LLC | Various | Various | PA | Various | Various | PA Rite Aid Portfolio | 21,816 | Square Feet | 4.6600% | 4.6497% | ||||||||||||
65.01 | The Bancorp Bank | 3550 Route 130 | Irwin | PA | 15642 | Westmoreland | Rite Aid - Irwin | 10,908 | Square Feet | |||||||||||||||
65.02 | The Bancorp Bank | 1804 Golden Mile Highway | Pittsburgh | PA | 15239 | Allegheny | Rite Aid - Pittsburgh | 10,908 | Square Feet | |||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | 4188 Pierce Street | Riverside | CA | 92505 | Riverside | A Storage Place - La Sierra | 771 | Units | 4.2805% | 4.2702% | ||||||||||||
67 | BSP | Zukin Family Limited Partnership | 102, 104, and 116 North Pottstown Pike | Chester Springs | PA | 19425 | Chester | Pottstown Pike Retail | 18,624 | Square Feet | 4.8400% | 4.8297% | ||||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | 3120 Valley Meadow Drive | Dallas | TX | 75220 | Dallas | Cornerstone Chase Apartments | 166 | Units | 4.8500% | 4.8397% | ||||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | 50 Red Oaks Mill Road | Poughkeepsie | NY | 12603 | Dutchess | Best Western Plus at The Falls | 40 | Rooms | 4.7600% | 4.7497% | ||||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | 7001 West Grand Parkway | Richmond | TX | 77406 | Fort Bend | Long Meadow Farms | 14,763 | Square Feet | 4.7467% | 4.7364% | ||||||||||||
71 | Column | Glendale Communities LP | 5745 & 5825 West Maryland Avenue | Glendale | AZ | 85301 | Maricopa | Tiki Tai and Maryland West MHC | 114 | Pads | 4.7950% | 4.7847% | ||||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | 3399 Central Avenue | Riverside | CA | 92506 | Riverside | Central Avenue Self Storage | 792 | Units | 4.0000% | 3.9897% | ||||||||||||
73 | Column | NP Granada MHC Associates, LLC | 2400 South MacArthur Boulevard | Oklahoma City | OK | 73128 | Oklahoma | Granada Village | 282 | Pads | 4.5800% | 4.5697% | ||||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | 326 West Santa Maria Street | Santa Paula | CA | 93060 | Ventura | Santa Paula Self Storage | 934 | Units | 4.2600% | 4.2497% | ||||||||||||
75 | UBSRES | Shea Renaissance, LLC | 2201 Ridgmar Boulevard | Fort Worth | TX | 76116 | Tarrant | Renaissance Gardens | 160 | Units | 4.1390% | 4.1287% | ||||||||||||
76 | Column | JP Chattanooga I, LLC | Various | Chattanooga | TN | 37421 | Hamilton | Jaffa Chattanooga Parks | 201 | Pads | 4.9200% | 4.9097% | ||||||||||||
76.01 | Column | 900 Airport Road | Chattanooga | TN | 37421 | Hamilton | Whispering Pines MHP | 113 | Pads | |||||||||||||||
76.02 | Column | 1708 Shepherd Road | Chattanooga | TN | 37421 | Hamilton | Acres of Shade MHP | 88 | Pads | |||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | 1110 East Chapman Avenue | Orange | CA | 92866 | Orange | Atrium Professional Plaza | 19,471 | Square Feet | 4.8600% | 4.8497% | ||||||||||||
78 | The Bancorp Bank | Avnet II LLC | 2143 Winslow Drive | Columbus | OH | 43207 | Franklin | 2143 Winslow Drive | 195 | Units | 4.8500% | 4.8397% | ||||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | 4701 North Harlem Avenue | Harwood Heights | IL | 60706 | Cook | Harwood Commons Ground Lease | 11 | Acres | 4.5000% | 4.4897% | ||||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | 1180 North State Street | Hemet | CA | 92543 | Riverside | American Self Storage | 771 | Units | 4.9500% | 4.9397% | ||||||||||||
81 | BNYM | EST Virginia LLC | 3298 South Crater Road | Petersburg | VA | 23805 | City of Petersburg | Walgreens (Petersburg, VA) | 14,820 | Square Feet | 4.7500% | 4.7397% | ||||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | 718-720, 722-724, 726-728, 730-732 North Columbia Street; 119-121, 123 a and b East Longview Street | Chapel Hill | NC | 27516 | Orange | Chapel Hill Apartments | 12 | Units | 4.7200% | 4.7097% | ||||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | Various | Pontiac | MI | 48341 | Oakland | Centerpoint Retail | 7 | Acres | 4.7600% | 4.7022% | ||||||||||||
83.01 | BSP | 3800 Centerpoint | Pontiac | MI | 48341 | Oakland | Mi Zarape | 1 | Acres | |||||||||||||||
83.02 | BSP | 3900 Centerpoint | Pontiac | MI | 48341 | Oakland | Papa Vino’s | 2 | Acres | |||||||||||||||
83.03 | BSP | 1600 South Opdyke | Pontiac | MI | 48341 | Oakland | Wendy’s Tim Horton’s | 1 | Acres | |||||||||||||||
83.04 | BSP | 800 South Opdyke | Pontiac | MI | 48341 | Oakland | Arby’s | 1 | Acres | |||||||||||||||
83.05 | BSP | 600 South Opdyke | Pontiac | MI | 48341 | Oakland | Dunkin Donuts Baskin Robins | 1 | Acres | |||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | 26419 Barton Road | Redlands | CA | 92354 | San Bernardino | A Storage Place - Barton Road | 515 | Units | 4.1190% | 4.1087% | ||||||||||||
85 | UBSRES | Portz Properties, LLC | 1330 Dutch Fork Road | Irmo | SC | 29063 | Richland | CVS - Irmo | 10,125 | Square Feet | 4.6830% | 4.6727% | ||||||||||||
86 | Column | JP Baytown I, LLC | 6310 North Highway 146 | Baytown | TX | 77523 | Chambers | Cedar Bayou MHP | 111 | Pads | 4.7700% | 4.7597% | ||||||||||||
87 | Column | Wendy Bagwell Venture, LLC | 5739 Wendy Bagwell Parkway | Hiram | GA | 30141 | Paulding | Shoppes at Hiram | 12,600 | Square Feet | 4.8100% | 4.7597% | ||||||||||||
88 | Column | Teal Holdings, LLC | 2434 East Baseline Road | Phoenix | AZ | 85042 | Maricopa | The Legacy Plaza | 6,560 | Square Feet | 4.6100% | 4.5997% | ||||||||||||
89 | Column | Scenic Ridge, LLC | 5191 West 112th Avenue | Westminster | CO | 80020 | Adams | Scenic Ridge | 9,178 | Square Feet | 5.0300% | 5.0197% |
Loan ID # | Originator/Loan Seller | Mortgagor Name | Companion Loan Mortgage Rate in Effect at Origination (%) | Companion Loan Net Mortgage Rate in Effect at the Cut-off Date (%) | Original Principal Balance | Cut-off Principal Balance | Original Term | Remaining Term | Maturity/ARD Date | Amortiziation Term | Remaining Amortization Term for Balloon Loans | ||||||||||||
1 | UBSRES | DMP CR Plaza, LLC | 130,000,000 | 130,000,000 | 120 | 120 | 08/06/25 | 315 | 315 | ||||||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | 105,000,000 | 105,000,000 | 60 | 59 | 07/06/20 | 360 | 360 | ||||||||||||||
2.01 | Column | 4,627,237 | 4,627,237 | ||||||||||||||||||||
2.02 | Column | 4,314,115 | 4,314,115 | ||||||||||||||||||||
2.03 | Column | 3,896,620 | 3,896,620 | ||||||||||||||||||||
2.04 | Column | 3,757,455 | 3,757,455 | ||||||||||||||||||||
2.05 | Column | 3,618,290 | 3,618,290 | ||||||||||||||||||||
2.06 | Column | 3,583,499 | 3,583,499 | ||||||||||||||||||||
2.07 | Column | 3,096,421 | 3,096,421 | ||||||||||||||||||||
2.08 | Column | 2,922,465 | 2,922,465 | ||||||||||||||||||||
2.09 | Column | 2,783,300 | 2,783,300 | ||||||||||||||||||||
2.1 | Column | 2,783,300 | 2,783,300 | ||||||||||||||||||||
2.11 | Column | 2,748,509 | 2,748,509 | ||||||||||||||||||||
2.12 | Column | 2,748,509 | 2,748,509 | ||||||||||||||||||||
2.13 | Column | 2,574,553 | 2,574,553 | ||||||||||||||||||||
2.14 | Column | 2,470,179 | 2,470,179 | ||||||||||||||||||||
2.15 | Column | 2,470,179 | 2,470,179 | ||||||||||||||||||||
2.16 | Column | 2,470,179 | 2,470,179 | ||||||||||||||||||||
2.17 | Column | 2,400,596 | 2,400,596 | ||||||||||||||||||||
2.18 | Column | 2,365,805 | 2,365,805 | ||||||||||||||||||||
2.19 | Column | 2,365,805 | 2,365,805 | ||||||||||||||||||||
2.2 | Column | 2,331,014 | 2,331,014 | ||||||||||||||||||||
2.21 | Column | 2,296,223 | 2,296,223 | ||||||||||||||||||||
2.22 | Column | 2,296,223 | 2,296,223 | ||||||||||||||||||||
2.23 | Column | 2,052,684 | 2,052,684 | ||||||||||||||||||||
2.24 | Column | 2,052,684 | 2,052,684 | ||||||||||||||||||||
2.25 | Column | 2,017,893 | 2,017,893 | ||||||||||||||||||||
2.26 | Column | 2,017,893 | 2,017,893 | ||||||||||||||||||||
2.27 | Column | 1,983,101 | 1,983,101 | ||||||||||||||||||||
2.28 | Column | 1,983,101 | 1,983,101 | ||||||||||||||||||||
2.29 | Column | 1,913,519 | 1,913,519 | ||||||||||||||||||||
2.3 | Column | 1,913,519 | 1,913,519 | ||||||||||||||||||||
2.31 | Column | 1,843,936 | 1,843,936 | ||||||||||||||||||||
2.32 | Column | 1,774,354 | 1,774,354 | ||||||||||||||||||||
2.33 | Column | 1,704,771 | 1,704,771 | ||||||||||||||||||||
2.34 | Column | 1,669,980 | 1,669,980 | ||||||||||||||||||||
2.35 | Column | 1,669,980 | 1,669,980 | ||||||||||||||||||||
2.36 | Column | 1,565,606 | 1,565,606 | ||||||||||||||||||||
2.37 | Column | 1,461,233 | 1,461,233 | ||||||||||||||||||||
2.38 | Column | 1,426,441 | 1,426,441 | ||||||||||||||||||||
2.39 | Column | 1,356,859 | 1,356,859 | ||||||||||||||||||||
2.4 | Column | 1,217,694 | 1,217,694 | ||||||||||||||||||||
2.41 | Column | 1,182,903 | 1,182,903 | ||||||||||||||||||||
2.42 | Column | 1,182,903 | 1,182,903 | ||||||||||||||||||||
2.43 | Column | 1,148,111 | 1,148,111 | ||||||||||||||||||||
2.44 | Column | 939,364 | 939,364 | ||||||||||||||||||||
2.45 | Column | 800,199 | 800,199 | ||||||||||||||||||||
2.46 | Column | 730,616 | 730,616 | ||||||||||||||||||||
2.47 | Column | 730,616 | 730,616 | ||||||||||||||||||||
2.48 | Column | 626,243 | 626,243 | ||||||||||||||||||||
2.49 | Column | 556,660 | 556,660 | ||||||||||||||||||||
2.5 | Column | 556,660 | 556,660 | ||||||||||||||||||||
3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | 100,000,000 | 100,000,000 | 120 | 119 | 07/01/25 | 0 | 0 | ||||||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | 3.8000% | 3.7899% | 97,000,000 | 97,000,000 | 120 | 115 | 03/01/25 | 0 | 0 | ||||||||||||
5 | Column | Arizona Grand Resort, LLC | 50,000,000 | 50,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | 4.0211% | 4.0110% | 50,000,000 | 50,000,000 | 120 | 111 | 11/06/24 | 0 | 0 | ||||||||||||
6.01 | Column | 36,889,460 | 36,889,460 | ||||||||||||||||||||
6.02 | Column | 13,110,540 | 13,110,540 | ||||||||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | 3.8000% | 3.7899% | 41,162,162 | 41,162,162 | 120 | 115 | 03/01/25 | 0 | 0 | ||||||||||||
8 | BNYM | Henderson Beach Partners, LLC | 30,000,000 | 30,000,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
9 | BNYM | Diamond Capital Group, LP | 27,500,000 | 27,500,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | 26,650,000 | 26,650,000 | 120 | 120 | 08/06/25 | 0 | 0 | ||||||||||||||
11 | Column | Summer Lake Villas LLC | 26,000,000 | 26,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
11.01 | Column | 14,783,265 | 14,783,265 | ||||||||||||||||||||
11.02 | Column | 7,525,620 | 7,525,620 | ||||||||||||||||||||
11.03 | Column | 3,691,115 | 3,691,115 | ||||||||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | 25,300,000 | 25,206,602 | 120 | 117 | 05/05/25 | 360 | 357 | ||||||||||||||
13 | BNYM | SAC Hospitality LLC | 23,700,000 | 23,700,000 | 60 | 59 | 07/06/20 | 360 | 360 | ||||||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | 23,100,000 | 23,100,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | 21,040,000 | 21,040,000 | 120 | 115 | 03/06/25 | 360 | 360 | ||||||||||||||
15.01 | BNYM | 5,512,000 | 5,512,000 | ||||||||||||||||||||
15.02 | BNYM | 4,472,000 | 4,472,000 | ||||||||||||||||||||
15.03 | BNYM | 3,712,000 | 3,712,000 | ||||||||||||||||||||
15.04 | BNYM | 2,848,000 | 2,848,000 | ||||||||||||||||||||
15.05 | BNYM | 2,456,000 | 2,456,000 | ||||||||||||||||||||
15.06 | BNYM | 2,040,000 | 2,040,000 | ||||||||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | 20,500,000 | 20,500,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | 18,750,000 | 18,730,302 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
18 | BNYM | 7101 Sunset, LLC | 18,500,000 | 18,500,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
19 | BNYM | Peppertree Capital, LP | 18,200,000 | 18,200,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
20 | BNYM | 250 South Clinton LLC | 18,075,000 | 18,075,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
20.01 | BNYM | 14,137,500 | 14,137,500 | ||||||||||||||||||||
20.02 | BNYM | 3,937,500 | 3,937,500 | ||||||||||||||||||||
21 | Column | Ranch on the River, LP | 17,788,000 | 17,788,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
22 | UBSRES | BT (Multi) LLC | N/A | N/A | 17,170,000 | 17,170,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||
22.01 | UBSRES | 4,086,268 | 4,086,268 | ||||||||||||||||||||
22.02 | UBSRES | 3,779,319 | 3,779,319 | ||||||||||||||||||||
22.03 | UBSRES | 3,453,184 | 3,453,184 | ||||||||||||||||||||
22.04 | UBSRES | 2,436,413 | 2,436,413 | ||||||||||||||||||||
22.05 | UBSRES | 1,841,698 | 1,841,698 | ||||||||||||||||||||
22.06 | UBSRES | 1,573,117 | 1,573,117 | ||||||||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | 17,000,000 | 16,982,329 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | 4.2500% | 4.2399% | 17,000,000 | 16,933,509 | 120 | 117 | 05/06/25 | 360 | 357 | ||||||||||||
25 | BSP | 1315 Lincoln Owner LLC | 16,600,000 | 16,600,000 | 60 | 57 | 05/06/20 | 0 | 0 | ||||||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | 16,000,000 | 16,000,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
26.01 | UBSRES | 13,665,236 | 13,665,236 | ||||||||||||||||||||
26.02 | UBSRES | 2,334,764 | 2,334,764 | ||||||||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | 14,300,000 | 14,300,000 | 120 | 120 | 08/06/25 | 300 | 300 | ||||||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | 14,200,000 | 14,200,000 | 120 | 119 | 07/05/25 | 360 | 360 | ||||||||||||||
29 | Column | 4800 Sugar Grove, LLC | 14,000,000 | 13,982,824 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | 13,500,000 | 13,485,144 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | 12,000,000 | 11,979,130 | 120 | 119 | 07/06/25 | 300 | 299 | ||||||||||||||
32 | Column | HH-Laveen, LLC | 11,850,000 | 11,820,748 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
33 | BSP | NG BIM Colony Plaza LLC | 11,750,000 | 11,737,366 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | 11,500,000 | 11,500,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
35 | BSP | Millside Plaza LLC | 11,100,000 | 11,100,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
36 | Column | Self Storage LLC | 11,000,000 | 11,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
36.01 | Column | 2,110,312 | 2,110,312 | ||||||||||||||||||||
36.02 | Column | 2,004,796 | 2,004,796 | ||||||||||||||||||||
36.03 | Column | 2,004,796 | 2,004,796 | ||||||||||||||||||||
36.04 | Column | 1,688,249 | 1,688,249 | ||||||||||||||||||||
36.05 | Column | 1,160,672 | 1,160,672 | ||||||||||||||||||||
36.06 | Column | 1,028,777 | 1,028,777 | ||||||||||||||||||||
36.07 | Column | 1,002,398 | 1,002,398 | ||||||||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | 11,000,000 | 10,971,562 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
38 | Column | BMA Brookwood Apartments, LLC | 10,695,000 | 10,695,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
39 | UBSRES | Deerfield 21 Corporation | 10,500,000 | 10,500,000 | 120 | 118 | 06/06/25 | 0 | 0 | ||||||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | 10,500,000 | 10,473,658 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
41 | Column | Sherwood Equity LLC | 10,460,000 | 10,434,698 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
42 | Column | Pickerington Plaza Limited Partnership | 9,750,000 | 9,750,000 | 120 | 117 | 05/01/25 | 360 | 360 | ||||||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | 9,750,000 | 9,725,980 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
44 | Column | Konark Limited Partnership | 9,600,000 | 9,589,039 | 120 | 119 | 07/01/25 | 360 | 359 | ||||||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | 9,500,000 | 9,500,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | 9,150,000 | 9,139,577 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
46.01 | BSP | 3,335,938 | 3,332,138 | ||||||||||||||||||||
46.02 | BSP | 3,097,656 | 3,094,127 | ||||||||||||||||||||
46.03 | BSP | 2,716,406 | 2,713,312 | ||||||||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | 9,000,000 | 9,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | 9,000,000 | 9,000,000 | 120 | 120 | 08/06/25 | 336 | 336 | ||||||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | 8,400,000 | 8,400,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | 8,300,000 | 8,279,009 | 120 | 118 | 06/05/25 | 360 | 358 | ||||||||||||||
51 | BSP | HEC - RNBT LLC | 8,255,000 | 8,255,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | 8,100,000 | 8,100,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
53 | Column | Tara Hills LLC | 8,000,000 | 8,000,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
54 | BSP | Baltimore North Hotel LLC | 8,000,000 | 8,000,000 | 120 | 120 | 08/06/25 | 300 | 300 | ||||||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | 7,875,000 | 7,875,000 | 120 | 119 | 07/05/25 | 360 | 360 | ||||||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | 7,700,000 | 7,691,280 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | 7,200,000 | 7,191,536 | 60 | 59 | 07/06/20 | 360 | 359 | ||||||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | 7,000,000 | 7,000,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | 6,600,000 | 6,600,000 | 120 | 118 | 06/05/25 | 360 | 360 | ||||||||||||||
60 | The Bancorp Bank | CCBP II LLC | 6,600,000 | 6,592,703 | 120 | 119 | 07/05/25 | 360 | 359 | ||||||||||||||
61 | UBSRES | Chapanoke Square LLC | 6,525,000 | 6,525,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | 6,200,000 | 6,192,442 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
62.01 | UBSRES | 3,297,872 | 3,293,852 | ||||||||||||||||||||
62.02 | UBSRES | 2,902,128 | 2,898,590 | ||||||||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | 6,100,000 | 6,100,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | 6,000,000 | 6,000,000 | 120 | 119 | 07/05/25 | 360 | 360 | ||||||||||||||
65 | The Bancorp Bank | NB Penn LLC | 5,745,000 | 5,738,396 | 120 | 119 | 07/05/25 | 360 | 359 | ||||||||||||||
65.01 | The Bancorp Bank | 2,872,500 | 2,869,198 | ||||||||||||||||||||
65.02 | The Bancorp Bank | 2,872,500 | 2,869,198 | ||||||||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | 5,700,000 | 5,700,000 | 120 | 119 | 07/06/25 | 0 | 0 | ||||||||||||||
67 | BSP | Zukin Family Limited Partnership | 5,600,000 | 5,600,000 | 120 | 119 | 07/01/25 | 360 | 360 | ||||||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | 5,500,000 | 5,500,000 | 120 | 120 | 08/06/25 | 360 | 360 | ||||||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | 4,750,000 | 4,742,362 | 120 | 119 | 07/06/25 | 300 | 299 | ||||||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | 4,387,500 | 4,387,500 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
71 | Column | Glendale Communities LP | 4,125,000 | 4,125,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | 4,000,000 | 4,000,000 | 120 | 117 | 05/06/25 | 0 | 0 | ||||||||||||||
73 | Column | NP Granada MHC Associates, LLC | 4,000,000 | 3,990,106 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | 3,900,000 | 3,889,715 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
75 | UBSRES | Shea Renaissance, LLC | 3,700,000 | 3,700,000 | 120 | 118 | 06/06/25 | 360 | 360 | ||||||||||||||
76 | Column | JP Chattanooga I, LLC | 3,640,000 | 3,640,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
76.01 | Column | 2,058,000 | 2,058,000 | ||||||||||||||||||||
76.02 | Column | 1,582,000 | 1,582,000 | ||||||||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | 3,550,000 | 3,550,000 | 120 | 120 | 08/05/25 | 360 | 360 | ||||||||||||||
78 | The Bancorp Bank | Avnet II LLC | 3,400,000 | 3,388,268 | 120 | 117 | 05/05/25 | 360 | 357 | ||||||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | 3,100,000 | 3,100,000 | 120 | 117 | 05/06/25 | 360 | 360 | ||||||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | 2,990,000 | 2,990,000 | 120 | 120 | 08/05/25 | 360 | 360 | ||||||||||||||
81 | BNYM | EST Virginia LLC | 2,900,000 | 2,900,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | 2,800,000 | 2,800,000 | 120 | 119 | 07/05/25 | 360 | 360 | ||||||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | 2,800,000 | 2,793,323 | 120 | 118 | 06/06/25 | 360 | 358 | ||||||||||||||
83.01 | BSP | 618,605 | 617,130 | ||||||||||||||||||||
83.02 | BSP | 596,899 | 595,476 | ||||||||||||||||||||
83.03 | BSP | 596,899 | 595,476 | ||||||||||||||||||||
83.04 | BSP | 499,225 | 498,034 | ||||||||||||||||||||
83.05 | BSP | 488,372 | 487,208 | ||||||||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | 2,300,000 | 2,300,000 | 120 | 119 | 07/06/25 | 0 | 0 | ||||||||||||||
85 | UBSRES | Portz Properties, LLC | 2,030,000 | 2,030,000 | 120 | 117 | 05/06/25 | 0 | 0 | ||||||||||||||
86 | Column | JP Baytown I, LLC | 2,000,000 | 2,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | ||||||||||||||
87 | Column | Wendy Bagwell Venture, LLC | 1,600,000 | 1,598,223 | 120 | 119 | 07/06/25 | 360 | 359 | ||||||||||||||
88 | Column | Teal Holdings, LLC | 1,400,000 | 1,400,000 | 120 | 117 | 05/01/25 | 360 | 360 | ||||||||||||||
89 | Column | Scenic Ridge, LLC | 1,400,000 | 1,398,523 | 120 | 119 | 07/06/25 | 360 | 359 |
Loan ID # | Originator/Loan Seller | Mortgagor Name | Companion Loan Cut-off Principal Balance | Companion Loan Original Term | Companion Loan Remaining Term | Companion Loan Maturity/ARD Date | Companion Loan Amortiziation Term | Companion Loan Remaining Amortization Term for Balloon Loans | Monthly Payment | Serviced Whole Loan | Servicing Fee Rate | Subservicing Fee | |||||||||||
1 | UBSRES | DMP CR Plaza, LLC | 81,000,000 | 120 | 120 | 08/06/25 | 315 | 315 | 680,760.29 | Yes | 0.00250% | 0.00250% | |||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | 95,000,000 | 60 | 59 | 07/06/20 | 360 | 360 | 487,605.07 | Yes | 0.00250% | 0.00250% | |||||||||||
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3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | 50,000,000 | 120 | 119 | 07/01/25 | 0 | 0 | 347,087.96 | Yes | 0.00250% | 0.00250% | |||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | 137,617,526 | 120 | 115 | 03/01/25 | 0 | 0 | 311,432.87 | No | 0.00250% | 0.00250% | |||||||||||
5 | Column | Arizona Grand Resort, LLC | 45,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | 229,491.35 | Yes | 0.00250% | 0.00250% | |||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | 175,000,000 | 120 | 111 | 11/06/24 | 0 | 0 | 169,872.86 | No | 0.00250% | 0.00250% | |||||||||||
6.01 | Column | ||||||||||||||||||||||
6.02 | Column | ||||||||||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | 111,137,838 | 120 | 115 | 03/01/25 | 0 | 0 | 132,157.22 | No | 0.00250% | 0.00250% | |||||||||||
8 | BNYM | Henderson Beach Partners, LLC | 147,933.44 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
9 | BNYM | Diamond Capital Group, LP | 140,648.69 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | 103,802.37 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
11 | Column | Summer Lake Villas LLC | 137,830.96 | NAP | 0.00250% | 0.00750% | |||||||||||||||||
11.01 | Column | ||||||||||||||||||||||
11.02 | Column | ||||||||||||||||||||||
11.03 | Column | ||||||||||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | 128,642.76 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
13 | BNYM | SAC Hospitality LLC | 120,930.82 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | 114,315.30 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | 104,987.58 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
15.01 | BNYM | ||||||||||||||||||||||
15.02 | BNYM | ||||||||||||||||||||||
15.03 | BNYM | ||||||||||||||||||||||
15.04 | BNYM | ||||||||||||||||||||||
15.05 | BNYM | ||||||||||||||||||||||
15.06 | BNYM | ||||||||||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | 106,288.72 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | 101,210.56 | NAP | 0.00250% | 0.06000% | |||||||||||||||||
18 | BNYM | 7101 Sunset, LLC | 96,393.28 | NAP | 0.00250% | 0.04000% | |||||||||||||||||
19 | BNYM | Peppertree Capital, LP | 93,083.86 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
20 | BNYM | 250 South Clinton LLC | 93,093.05 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
20.01 | BNYM | ||||||||||||||||||||||
20.02 | BNYM | ||||||||||||||||||||||
21 | Column | Ranch on the River, LP | 92,255.29 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
22 | UBSRES | BT (Multi) LLC | 40,000,000 | 120 | 119 | 07/06/25 | 360 | 360 | 86,046.59 | No | 0.00250% | 0.00250% | |||||||||||
22.01 | UBSRES | ||||||||||||||||||||||
22.02 | UBSRES | ||||||||||||||||||||||
22.03 | UBSRES | ||||||||||||||||||||||
22.04 | UBSRES | ||||||||||||||||||||||
22.05 | UBSRES | ||||||||||||||||||||||
22.06 | UBSRES | ||||||||||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | 92,231.49 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | 30,000,000 | 120 | 117 | 05/06/25 | 360 | 357 | 83,629.78 | No | 0.00250% | 0.00250% | |||||||||||
25 | BSP | 1315 Lincoln Owner LLC | 63,114.58 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | 16,000,000 | 120 | 120 | 08/06/25 | 360 | 360 | 84,266.87 | Yes | 0.00250% | 0.00250% | |||||||||||
26.01 | UBSRES | ||||||||||||||||||||||
26.02 | UBSRES | ||||||||||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | 84,699.82 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | 73,050.31 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
29 | Column | 4800 Sugar Grove, LLC | 69,858.65 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | 71,240.85 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | 65,422.50 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
32 | Column | HH-Laveen, LLC | 60,677.56 | NAP | 0.00500% | 0.01250% | |||||||||||||||||
33 | BSP | NG BIM Colony Plaza LLC | 62,717.97 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | 59,712.49 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
35 | BSP | Millside Plaza LLC | 58,103.74 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
36 | Column | Self Storage LLC | 54,113.39 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
36.01 | Column | ||||||||||||||||||||||
36.02 | Column | ||||||||||||||||||||||
36.03 | Column | ||||||||||||||||||||||
36.04 | Column | ||||||||||||||||||||||
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36.06 | Column | ||||||||||||||||||||||
36.07 | Column | ||||||||||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | 54,824.10 | NAP | 0.00500% | 0.04250% | |||||||||||||||||
38 | Column | BMA Brookwood Apartments, LLC | 53,809.38 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
39 | UBSRES | Deerfield 21 Corporation | 34,149.17 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | 53,264.34 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
41 | Column | Sherwood Equity LLC | 54,186.66 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
42 | Column | Pickerington Plaza Limited Partnership | 47,508.61 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | 49,982.83 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
44 | Column | Konark Limited Partnership | 49,731.54 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | 48,570.72 | NAP | 0.00250% | 0.05000% | |||||||||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | 47,455.36 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
46.01 | BSP | ||||||||||||||||||||||
46.02 | BSP | ||||||||||||||||||||||
46.03 | BSP | ||||||||||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | 46,569.27 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | 48,454.14 | NAP | 0.00250% | 0.06000% | |||||||||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | 42,383.57 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | 41,907.06 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
51 | BSP | HEC - RNBT LLC | 43,510.94 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | 42,412.25 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
53 | Column | Tara Hills LLC | 39,683.72 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
54 | BSP | Baltimore North Hotel LLC | 45,793.64 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | 41,222.25 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | 40,054.60 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | 36,744.92 | NAP | 0.00250% | 0.05000% | |||||||||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | 37,108.33 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | 33,716.30 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
60 | The Bancorp Bank | CCBP II LLC | 34,747.69 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
61 | UBSRES | Chapanoke Square LLC | 32,337.31 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | 31,042.78 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
62.01 | UBSRES | ||||||||||||||||||||||
62.02 | UBSRES | ||||||||||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | 30,781.08 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | 30,758.66 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
65 | The Bancorp Bank | NB Penn LLC | 29,657.78 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
65.01 | The Bancorp Bank | ||||||||||||||||||||||
65.02 | The Bancorp Bank | ||||||||||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | 20,614.77 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
67 | BSP | Zukin Family Limited Partnership | 29,516.81 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | 29,023.05 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | 27,107.90 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | 22,878.55 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
71 | Column | Glendale Communities LP | 21,629.98 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | 13,518.52 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
73 | Column | NP Granada MHC Associates, LLC | 20,457.99 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | 19,208.49 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
75 | UBSRES | Shea Renaissance, LLC | 17,962.15 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
76 | Column | JP Chattanooga I, LLC | 19,362.73 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
76.01 | Column | ||||||||||||||||||||||
76.02 | Column | ||||||||||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | 18,754.58 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
78 | The Bancorp Bank | Avnet II LLC | 17,941.52 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | 15,707.24 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | 15,959.72 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
81 | BNYM | EST Virginia LLC | 15,127.77 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | 14,555.54 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | 14,623.01 | NAP | 0.00250% | 0.05000% | |||||||||||||||||
83.01 | BSP | ||||||||||||||||||||||
83.02 | BSP | ||||||||||||||||||||||
83.03 | BSP | ||||||||||||||||||||||
83.04 | BSP | ||||||||||||||||||||||
83.05 | BSP | ||||||||||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | 8,004.40 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
85 | UBSRES | Portz Properties, LLC | 8,032.10 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
86 | Column | JP Baytown I, LLC | 10,457.07 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
87 | Column | Wendy Bagwell Venture, LLC | 8,404.32 | NAP | 0.00500% | 0.04250% | |||||||||||||||||
88 | Column | Teal Holdings, LLC | 7,185.39 | NAP | 0.00500% | 0.00000% | |||||||||||||||||
89 | Column | Scenic Ridge, LLC | 7,541.19 | NAP | 0.00500% | 0.00000% |
Loan ID # | Originator/Loan Seller | Mortgagor Name | Companion Loan Primary Servicing Fee Rate | Accrual Type | ARD Loan (Y/N) | Revised Rate (%) | Title Type | Crossed Collateralized Loan | Cross Defaulted Loan | Guarantor | Letter of Credit | ||||||||||||
1 | UBSRES | DMP CR Plaza, LLC | 0.00250% | Actual/360 | Yes | 0% | Fee | No | No | Jonathan G. Davis; Paul R. Marcus | No | ||||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | 0.00250% | Actual/360 | No | 0% | Fee | No | No | SOF-IX U.S. Holdings, L.P. | No | ||||||||||||
2.01 | Column | Fee | |||||||||||||||||||||
2.02 | Column | Fee | |||||||||||||||||||||
2.03 | Column | Fee | |||||||||||||||||||||
2.04 | Column | Fee | |||||||||||||||||||||
2.05 | Column | Fee | |||||||||||||||||||||
2.06 | Column | Fee | |||||||||||||||||||||
2.07 | Column | Fee | |||||||||||||||||||||
2.08 | Column | Fee | |||||||||||||||||||||
2.09 | Column | Fee | |||||||||||||||||||||
2.1 | Column | Fee | |||||||||||||||||||||
2.11 | Column | Fee | |||||||||||||||||||||
2.12 | Column | Fee | |||||||||||||||||||||
2.13 | Column | Fee | |||||||||||||||||||||
2.14 | Column | Fee | |||||||||||||||||||||
2.15 | Column | Fee | |||||||||||||||||||||
2.16 | Column | Fee | |||||||||||||||||||||
2.17 | Column | Fee | |||||||||||||||||||||
2.18 | Column | Fee | |||||||||||||||||||||
2.19 | Column | Fee | |||||||||||||||||||||
2.2 | Column | Fee | |||||||||||||||||||||
2.21 | Column | Fee | |||||||||||||||||||||
2.22 | Column | Fee | |||||||||||||||||||||
2.23 | Column | Fee | |||||||||||||||||||||
2.24 | Column | Fee | |||||||||||||||||||||
2.25 | Column | Fee | |||||||||||||||||||||
2.26 | Column | Fee | |||||||||||||||||||||
2.27 | Column | Fee | |||||||||||||||||||||
2.28 | Column | Fee | |||||||||||||||||||||
2.29 | Column | Fee | |||||||||||||||||||||
2.3 | Column | Fee | |||||||||||||||||||||
2.31 | Column | Fee | |||||||||||||||||||||
2.32 | Column | Fee | |||||||||||||||||||||
2.33 | Column | Fee | |||||||||||||||||||||
2.34 | Column | Fee | |||||||||||||||||||||
2.35 | Column | Fee | |||||||||||||||||||||
2.36 | Column | Fee | |||||||||||||||||||||
2.37 | Column | Fee | |||||||||||||||||||||
2.38 | Column | Fee | |||||||||||||||||||||
2.39 | Column | Fee | |||||||||||||||||||||
2.4 | Column | Fee | |||||||||||||||||||||
2.41 | Column | Fee | |||||||||||||||||||||
2.42 | Column | Fee | |||||||||||||||||||||
2.43 | Column | Fee | |||||||||||||||||||||
2.44 | Column | Fee | |||||||||||||||||||||
2.45 | Column | Fee | |||||||||||||||||||||
2.46 | Column | Fee | |||||||||||||||||||||
2.47 | Column | Fee | |||||||||||||||||||||
2.48 | Column | Fee | |||||||||||||||||||||
2.49 | Column | Fee | |||||||||||||||||||||
2.5 | Column | Fee | |||||||||||||||||||||
3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | 0.00250% | Actual/360 | No | 0% | Fee & Leasehold | No | No | Mayflower Realty LLC | No | ||||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | Actual/360 | No | 0% | Fee | No | No | Westfield America, Inc., Westfield America Limited Partnership | No | |||||||||||||
5 | Column | Arizona Grand Resort, LLC | 0.00250% | Actual/360 | No | 0% | Fee & Leasehold | No | No | Southwest Recourse III, LLC ; Grossman Company Properties, Inc.; Southwest Associates Investments, LLC | No | ||||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | Actual/360 | No | 0% | Fee | No | No | Hartz Financial Corp., Hartz Financial II Corp., Hartz Mountain Industries-NJ, L.L.C. | No | |||||||||||||
6.01 | Column | Fee | |||||||||||||||||||||
6.02 | Column | Fee | |||||||||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | Actual/360 | No | 0% | Fee | No | No | Westfield America, Inc., Westfield America Limited Partnership | No | |||||||||||||
8 | BNYM | Henderson Beach Partners, LLC | Actual/360 | No | 0% | Fee | No | No | Ryan L. Hanks | No | |||||||||||||
9 | BNYM | Diamond Capital Group, LP | Actual/360 | No | 0% | Fee | No | No | Albert Taban | No | |||||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | Actual/360 | No | 0% | Fee | No | No | Isaac A. Gindi; Edward Gindi | No | |||||||||||||
11 | Column | Summer Lake Villas LLC | Actual/360 | No | 0% | Fee | No | No | Adam Hendry | No | |||||||||||||
11.01 | Column | Fee | |||||||||||||||||||||
11.02 | Column | Fee | |||||||||||||||||||||
11.03 | Column | Fee | |||||||||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | Actual/360 | No | 0% | Fee | No | No | Imad T. Mansour | No | |||||||||||||
13 | BNYM | SAC Hospitality LLC | Actual/360 | No | 0% | Fee | No | No | R-Roof Assets, LLC | No | |||||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | Actual/360 | No | 0% | Fee | No | No | Arnold Gumowitz | No | |||||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | Actual/360 | No | 0% | Fee | No | No | Arbor Realty SR, Inc. | No | |||||||||||||
15.01 | BNYM | Fee | |||||||||||||||||||||
15.02 | BNYM | Fee | |||||||||||||||||||||
15.03 | BNYM | Fee | |||||||||||||||||||||
15.04 | BNYM | Fee | |||||||||||||||||||||
15.05 | BNYM | Fee | |||||||||||||||||||||
15.06 | BNYM | Fee | |||||||||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | Actual/360 | No | 0% | Fee | No | No | Flinn Realty LLC; Privet Birmingham Crescent Holdings, LLC | No | |||||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | Actual/360 | No | 0% | Fee | No | No | Andre Ferrigno; Alison Goodwin; Anthony Jon Sherman; Anthony Jon Sherman and Rachel A. Sherman, as Trustees of the Sherman Family Trust, Dated April 22, 2003 | No | |||||||||||||
18 | BNYM | 7101 Sunset, LLC | Actual/360 | No | 0% | Fee | No | No | Daryoush Dayan | No | |||||||||||||
19 | BNYM | Peppertree Capital, LP | Actual/360 | No | 0% | Fee | No | No | David Taban | No | |||||||||||||
20 | BNYM | 250 South Clinton LLC | Actual/360 | No | 0% | Fee | No | No | Sid Borenstein, Shimmie Horn | No | |||||||||||||
20.01 | BNYM | Fee | |||||||||||||||||||||
20.02 | BNYM | Fee | |||||||||||||||||||||
21 | Column | Ranch on the River, LP | Actual/360 | No | 0% | Fee | No | No | Lahav Gabay | No | |||||||||||||
22 | UBSRES | BT (Multi) LLC | Actual/360 | No | 0% | Fee | No | No | Corporate Property Associates 17 - Global Incorporated | No | |||||||||||||
22.01 | UBSRES | Fee | |||||||||||||||||||||
22.02 | UBSRES | Fee | |||||||||||||||||||||
22.03 | UBSRES | Fee | |||||||||||||||||||||
22.04 | UBSRES | Fee | |||||||||||||||||||||
22.05 | UBSRES | Fee | |||||||||||||||||||||
22.06 | UBSRES | Fee | |||||||||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | Actual/360 | No | 0% | Fee | No | No | Robert J. Scannell; Robert J. Scannell, as Trustee of the Robert J. Scannell Revocable Trust | No | |||||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | Actual/360 | No | 0% | Fee | No | No | Rene O. Campos | No | |||||||||||||
25 | BSP | 1315 Lincoln Owner LLC | Actual/360 | No | 0% | Fee | No | No | Larry Botel | No | |||||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | 0.00250% | Actual/360 | No | 0% | Fee | No | No | Curtis Bashaw; Craig Wood | No | ||||||||||||
26.01 | UBSRES | Fee | |||||||||||||||||||||
26.02 | UBSRES | Fee | |||||||||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | Actual/360 | No | 0% | Fee | No | No | Dwyer New York Trust, Established July 17, 2001, Gery Grey, Perry Grey, Debra Rapaport, Steven C. Powell, Deborah L. Powell, Thomas L. Hubert, Frances C. Hubert, Jackmar Realty Corporation, LLC, Cynthia Johnston, Maria L. R. Chi, Juergen R. K. Muenster, Elfriede B. Muenster Revocable Trust dated May 10, 2002, James L. Fisk, Karen P. Dobney, Carl Ganter, James Demetro, Eva M. Demetro, John Pelochino, Donald R. Caddle, Suzanne C. Caddle, Dennis R. Lawrence Revocable Trust, Neil C. McFall, Wanda M. McFall, Sidney Cohen, Lynne Z. Cohen, Donald Hull, Annette Hull, Janice Kawamura, John R. Pelochino, Joseph Pelochino, Andrea Pelochino, Paul Daneshrad | No | |||||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | Actual/360 | No | 0% | Fee | No | No | Matthew C. Millman | No | |||||||||||||
29 | Column | 4800 Sugar Grove, LLC | Actual/360 | No | 0% | Fee | No | No | Hari P. Agrawal | No | |||||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | Actual/360 | No | 0% | Fee & Leasehold | No | No | Richard E. Takach, Jr.; John S. Turner, Jr. | No | |||||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | Actual/360 | No | 0% | Fee | No | No | John A. Henry & Co., Ltd. | No | |||||||||||||
32 | Column | HH-Laveen, LLC | Actual/360 | No | 0% | Fee | No | No | Christopher P. Hinkson; Shannon Hinkson; Christopher P. Hinkson and Shannon Hinkson as trustees of the Christopher and Shannon Hinkson Revocable Trust, under agreement dated January 12, 2009 | No | |||||||||||||
33 | BSP | NG BIM Colony Plaza LLC | Actual/360 | No | 0% | Fee | No | No | Elchonon Schwartz; Simon Singer | No | |||||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | Actual/360 | No | 0% | Fee & Leasehold | No | No | Healthcare GA Operating Partnership-T, LP | No | |||||||||||||
35 | BSP | Millside Plaza LLC | Actual/360 | No | 0% | Fee | No | No | Reuven Rivlin | No | |||||||||||||
36 | Column | Self Storage LLC | Actual/360 | No | 0% | Fee | No | No | Larry C. Register | No | |||||||||||||
36.01 | Column | Fee | |||||||||||||||||||||
36.02 | Column | Fee | |||||||||||||||||||||
36.03 | Column | Fee | |||||||||||||||||||||
36.04 | Column | Fee | |||||||||||||||||||||
36.05 | Column | Fee | |||||||||||||||||||||
36.06 | Column | Fee | |||||||||||||||||||||
36.07 | Column | Fee | |||||||||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | Actual/360 | No | 0% | Fee | No | No | Kamyar Mateen | No | |||||||||||||
38 | Column | BMA Brookwood Apartments, LLC | Actual/360 | No | 0% | Fee | No | No | Brian Martin | No | |||||||||||||
39 | UBSRES | Deerfield 21 Corporation | Actual/360 | No | 0% | Fee | No | No | David T. Chase | No | |||||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | Actual/360 | No | 0% | Fee | No | No | Stephen Field | No | |||||||||||||
41 | Column | Sherwood Equity LLC | Actual/360 | No | 0% | Fee | No | No | Vernon Ward Barge III | No | |||||||||||||
42 | Column | Pickerington Plaza Limited Partnership | Actual/360 | No | 0% | Fee | No | No | Gloria S. Haffer, as trustee of the Bernard R. Ruben irrevocable trust for issue u/a/d 12/7/1997 | No | |||||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | Actual/360 | No | 0% | Fee | No | No | Mark Vakili (a/k/a Morteza Vakili); Mitra Vakili; The Vakili Family Trust | No | |||||||||||||
44 | Column | Konark Limited Partnership | Actual/360 | No | 0% | Fee | No | No | Chowdary Yalamanchili | No | |||||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | Actual/360 | No | 0% | Fee | No | No | M&J Wilkow, LTD | No | |||||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | Actual/360 | No | 0% | Fee | No | No | Moshe Florans | No | |||||||||||||
46.01 | BSP | Fee | |||||||||||||||||||||
46.02 | BSP | Fee | |||||||||||||||||||||
46.03 | BSP | Fee | |||||||||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | Actual/360 | No | 0% | Fee | No | No | Andrew J. Cohen | No | |||||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | Actual/360 | No | 0% | Fee | No | No | American Nevada Holdings, LLC | No | |||||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | Actual/360 | No | 0% | Fee | No | No | William W. Hobin; Timothy B. Hobin; Clark W. Porter | No | |||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | Actual/360 | No | 0% | Fee | No | No | Fred Grimes | No | |||||||||||||
51 | BSP | HEC - RNBT LLC | Actual/360 | No | 0% | Fee | No | No | HEC - RNBT LLC | No | |||||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | Actual/360 | No | 0% | Fee | No | No | Mark B. Kennedy | No | |||||||||||||
53 | Column | Tara Hills LLC | Actual/360 | No | 0% | Fee | No | No | Tom Intrator | No | |||||||||||||
54 | BSP | Baltimore North Hotel LLC | Actual/360 | No | 0% | Fee | No | No | Vinay B. Patel | No | |||||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | Actual/360 | No | 0% | Fee | No | No | Avtar C. Verma & Satya P. Verma | No | |||||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | Actual/360 | No | 0% | Fee | No | No | Robert Levinson; Marc Levinson; The Robert Levinson Living Trust, Dated November 10, 2005 | No | |||||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | Actual/360 | No | 0% | Leasehold | No | No | John C. Lopuch; Lopuch Trust Dated August 9, 2000; Anthony R. Carr; Anthony R. Carr Revocable Trust of 1989 | No | |||||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | Actual/360 | No | 0% | Fee | No | No | David Colman; Michael Colman; Tyler Ross; James C. Beachum; James C. Beachum Revocable Trust U/A/D October 2, 1986 | No | |||||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | Actual/360 | No | 0% | Fee | No | No | Ruth Jeanette Veprin | No | |||||||||||||
60 | The Bancorp Bank | CCBP II LLC | Actual/360 | No | 0% | Fee | No | No | Francis Greenburger | No | |||||||||||||
61 | UBSRES | Chapanoke Square LLC | Actual/360 | No | 0% | Fee | No | No | Ben Werczberger | No | |||||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | Actual/360 | No | 0% | Fee | No | No | Kathy Jane Riseman; K. J. Risman Revocable Trust Dated November 3, 2001, As Amended | No | |||||||||||||
62.01 | UBSRES | Fee | |||||||||||||||||||||
62.02 | UBSRES | Fee | |||||||||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | Actual/360 | No | 0% | Fee | No | No | Michael A. Stahelin; Leland M. Stahelin | No | |||||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | Actual/360 | No | 0% | Fee | No | No | Peter D. Wetton | No | |||||||||||||
65 | The Bancorp Bank | NB Penn LLC | Actual/360 | No | 0% | Fee | No | No | Norman Berris | No | |||||||||||||
65.01 | The Bancorp Bank | Fee | |||||||||||||||||||||
65.02 | The Bancorp Bank | Fee | |||||||||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | Actual/360 | No | 0% | Fee | No | No | Arthur Scott Flaming, individually and as trustee of The Flaming Family Trust Dated May 23, 2006 | No | |||||||||||||
67 | BSP | Zukin Family Limited Partnership | Actual/360 | No | 0% | Fee | No | No | Stanford Zukin | No | |||||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | Actual/360 | No | 0% | Fee | No | No | Phillip D. Worthen | No | |||||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | Actual/360 | No | 0% | Fee | No | No | Bhavana Patel | No | |||||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | Actual/360 | No | 0% | Fee | No | No | Michael O. Rambeau; Gene P. Peng | No | |||||||||||||
71 | Column | Glendale Communities LP | Actual/360 | No | 0% | Fee | No | No | Daniel C. Fischer | No | |||||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | Actual/360 | No | 0% | Fee | No | No | Arthur L. Flaming, individually and as trustee of The Flaming Family Trust Dated October 8, 1997 | No | |||||||||||||
73 | Column | NP Granada MHC Associates, LLC | Actual/360 | No | 0% | Fee | No | No | Richard M. Nodel | No | |||||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | Actual/360 | No | 0% | Fee | No | No | Richard Ortale; William B. Kendall | No | |||||||||||||
75 | UBSRES | Shea Renaissance, LLC | Actual/360 | No | 0% | Fee | No | No | The Kennon Stuart Shea Legacy Trust for the benefit of Graham Thomas Shea and his descedants, 4-23-2012; The Kennon Stuart Shea Legacy Trust for the benefit of Anna Kathleen Shea and her descendants, 4-23-2012; The Kennon Stuart Shea Legacy Trust for the benefit of John Kennon Shea and his descendants, 4-23-2012 | No | |||||||||||||
76 | Column | JP Chattanooga I, LLC | Actual/360 | No | 0% | Fee | No | No | Daniel Weissman; David Shlachter | No | |||||||||||||
76.01 | Column | Fee | |||||||||||||||||||||
76.02 | Column | Fee | |||||||||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | Actual/360 | No | 0% | Fee | No | No | Roger C. Hobbs | No | |||||||||||||
78 | The Bancorp Bank | Avnet II LLC | Actual/360 | No | 0% | Fee | No | No | Yacov Trachtingot | No | |||||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | Actual/360 | No | 0% | Fee | No | No | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | No | |||||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | Actual/360 | No | 0% | Fee | No | No | Dennis A. Peterson | No | |||||||||||||
81 | BNYM | EST Virginia LLC | Actual/360 | No | 0% | Fee | No | No | Erwin Sredni | No | |||||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | Actual/360 | No | 0% | Fee | No | No | J. Patrick Gregoire & Paul Daze | No | |||||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | Actual/360 | No | 0% | Fee | No | No | Douglas Etkin | No | |||||||||||||
83.01 | BSP | Fee | |||||||||||||||||||||
83.02 | BSP | Fee | |||||||||||||||||||||
83.03 | BSP | Fee | |||||||||||||||||||||
83.04 | BSP | Fee | |||||||||||||||||||||
83.05 | BSP | Fee | |||||||||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | Actual/360 | No | 0% | Fee | No | No | Aurthur L. Flaming as individual and as trustee of The Flaming Family Trust Dated October 8, 1997 | No | |||||||||||||
85 | UBSRES | Portz Properties, LLC | Actual/360 | Yes | 0% | Fee | No | No | Stephen F. Portz; Jacklyn M. Portz | No | |||||||||||||
86 | Column | JP Baytown I, LLC | Actual/360 | No | 0% | Fee | No | No | Daniel Weissman; David Shlachter | No | |||||||||||||
87 | Column | Wendy Bagwell Venture, LLC | Actual/360 | No | 0% | Fee | No | No | F. William Hackmeyer; Jeffrey William Hackmeyer | No | |||||||||||||
88 | Column | Teal Holdings, LLC | Actual/360 | No | 0% | Fee | No | No | Steven Yari | No | |||||||||||||
89 | Column | Scenic Ridge, LLC | Actual/360 | No | 0% | Fee | No | No | James S. Loup | No |
UPFRONT ESCROW | |||||||||||||||||||||
Loan ID # | Originator/Loan Seller | Mortgagor Name | Upfront CapEx Reserve | Upfront Eng. Reserve | Upfront Envir. Reserve | Upfront TI/LC Reserve | Upfront RE Tax Reserve | Upfront Ins. Reserve | Upfront Debt Service Reserve | Upfront Other Reserve | |||||||||||
1 | UBSRES | DMP CR Plaza, LLC | 0 | 0 | 0 | 0 | 284,052 | 16,531 | 0 | 0 | |||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | 244,725 | 1,121,206 | 0 | 0 | 0 | 0 | 0 | 6,500,000 | |||||||||||
2.01 | Column | ||||||||||||||||||||
2.02 | Column | ||||||||||||||||||||
2.03 | Column | ||||||||||||||||||||
2.04 | Column | ||||||||||||||||||||
2.05 | Column | ||||||||||||||||||||
2.06 | Column | ||||||||||||||||||||
2.07 | Column | ||||||||||||||||||||
2.08 | Column | ||||||||||||||||||||
2.09 | Column | ||||||||||||||||||||
2.1 | Column | ||||||||||||||||||||
2.11 | Column | ||||||||||||||||||||
2.12 | Column | ||||||||||||||||||||
2.13 | Column | ||||||||||||||||||||
2.14 | Column | ||||||||||||||||||||
2.15 | Column | ||||||||||||||||||||
2.16 | Column | ||||||||||||||||||||
2.17 | Column | ||||||||||||||||||||
2.18 | Column | ||||||||||||||||||||
2.19 | Column | ||||||||||||||||||||
2.2 | Column | ||||||||||||||||||||
2.21 | Column | ||||||||||||||||||||
2.22 | Column | ||||||||||||||||||||
2.23 | Column | ||||||||||||||||||||
2.24 | Column | ||||||||||||||||||||
2.25 | Column | ||||||||||||||||||||
2.26 | Column | ||||||||||||||||||||
2.27 | Column | ||||||||||||||||||||
2.28 | Column | ||||||||||||||||||||
2.29 | Column | ||||||||||||||||||||
2.3 | Column | ||||||||||||||||||||
2.31 | Column | ||||||||||||||||||||
2.32 | Column | ||||||||||||||||||||
2.33 | Column | ||||||||||||||||||||
2.34 | Column | ||||||||||||||||||||
2.35 | Column | ||||||||||||||||||||
2.36 | Column | ||||||||||||||||||||
2.37 | Column | ||||||||||||||||||||
2.38 | Column | ||||||||||||||||||||
2.39 | Column | ||||||||||||||||||||
2.4 | Column | ||||||||||||||||||||
2.41 | Column | ||||||||||||||||||||
2.42 | Column | ||||||||||||||||||||
2.43 | Column | ||||||||||||||||||||
2.44 | Column | ||||||||||||||||||||
2.45 | Column | ||||||||||||||||||||
2.46 | Column | ||||||||||||||||||||
2.47 | Column | ||||||||||||||||||||
2.48 | Column | ||||||||||||||||||||
2.49 | Column | ||||||||||||||||||||
2.5 | Column | ||||||||||||||||||||
3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
5 | Column | Arizona Grand Resort, LLC | 311,695 | 20,700 | 0 | 0 | 695,361 | 703,114 | 0 | 597,267 | |||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | 0 | 225,068 | 0 | 0 | 2,732,258 | 0 | 0 | 1,500,000 | |||||||||||
6.01 | Column | ||||||||||||||||||||
6.02 | Column | ||||||||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
8 | BNYM | Henderson Beach Partners, LLC | 3,883 | 0 | 0 | 0 | 148,860 | 0 | 0 | 0 | |||||||||||
9 | BNYM | Diamond Capital Group, LP | 2,217 | 10,750 | 0 | 11,919 | 106,962 | 0 | 0 | 68,112 | |||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | 0 | 0 | 0 | 0 | 137,416 | 2,319 | 0 | 7,392 | |||||||||||
11 | Column | Summer Lake Villas LLC | 8,818 | 103,557 | 0 | 0 | 103,404 | 192,264 | 0 | 0 | |||||||||||
11.01 | Column | ||||||||||||||||||||
11.02 | Column | ||||||||||||||||||||
11.03 | Column | ||||||||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | 0 | 0 | 0 | 0 | 0 | 11,580 | 212,000 | 5,800,319 | |||||||||||
13 | BNYM | SAC Hospitality LLC | 0 | 0 | 0 | 0 | 86,014 | 0 | 0 | 3,750,000 | |||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | 0 | 108,748 | 0 | 0 | 109,998 | 0 | 0 | 3,000 | |||||||||||
15.01 | BNYM | ||||||||||||||||||||
15.02 | BNYM | ||||||||||||||||||||
15.03 | BNYM | ||||||||||||||||||||
15.04 | BNYM | ||||||||||||||||||||
15.05 | BNYM | ||||||||||||||||||||
15.06 | BNYM | ||||||||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | 0 | 10,000 | 0 | 0 | 252,640 | 10,283 | 0 | 539,130 | |||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | 0 | 6,063 | 0 | 0 | 83,770 | 20,414 | 0 | 584,750 | |||||||||||
18 | BNYM | 7101 Sunset, LLC | 623 | 0 | 0 | 53,899 | 54,153 | 1,623 | 0 | 34,770 | |||||||||||
19 | BNYM | Peppertree Capital, LP | 1,289 | 26,750 | 0 | 8,836 | 36,349 | 0 | 0 | 58,926 | |||||||||||
20 | BNYM | 250 South Clinton LLC | 3,660 | 0 | 0 | 31,650 | 228,314 | 3,970 | 0 | 368,296 | |||||||||||
20.01 | BNYM | ||||||||||||||||||||
20.02 | BNYM | ||||||||||||||||||||
21 | Column | Ranch on the River, LP | 3,067 | 0 | 0 | 0 | 193,375 | 23,380 | 0 | 0 | |||||||||||
22 | UBSRES | BT (Multi) LLC | 0 | 512,738 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
22.01 | UBSRES | ||||||||||||||||||||
22.02 | UBSRES | ||||||||||||||||||||
22.03 | UBSRES | ||||||||||||||||||||
22.04 | UBSRES | ||||||||||||||||||||
22.05 | UBSRES | ||||||||||||||||||||
22.06 | UBSRES | ||||||||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 100,000 | |||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | 0 | 1,354,850 | 0 | 0 | 242,668 | 102,991 | 0 | 0 | |||||||||||
25 | BSP | 1315 Lincoln Owner LLC | 0 | 0 | 0 | 0 | 38,289 | 4,211 | 0 | 451,774 | |||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | 0 | 8,250 | 0 | 0 | 120,937 | 0 | 0 | 810,000 | |||||||||||
26.01 | UBSRES | ||||||||||||||||||||
26.02 | UBSRES | ||||||||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | 0 | 27,938 | 0 | 1,025,800 | 0 | 0 | 0 | 447,755 | |||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | 375,000 | 53,088 | 0 | 0 | 63,333 | 3,333 | 0 | 0 | |||||||||||
29 | Column | 4800 Sugar Grove, LLC | 0 | 0 | 0 | 74,080 | 80,888 | 12,449 | 0 | 0 | |||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | 0 | 7,813 | 0 | 0 | 135,103 | 161,127 | 0 | 2,838,873 | |||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | 0 | 0 | 0 | 0 | 212,757 | 33,888 | 0 | 0 | |||||||||||
32 | Column | HH-Laveen, LLC | 1,276 | 0 | 0 | 8,948 | 23,097 | 1,946 | 0 | 193,451 | |||||||||||
33 | BSP | NG BIM Colony Plaza LLC | 0 | 43,450 | 0 | 0 | 116,169 | 9,917 | 0 | 1,000,000 | |||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
35 | BSP | Millside Plaza LLC | 0 | 0 | 0 | 300,000 | 69,303 | 4,219 | 0 | 0 | |||||||||||
36 | Column | Self Storage LLC | 0 | 0 | 0 | 0 | 46,441 | 45,169 | 0 | 0 | |||||||||||
36.01 | Column | ||||||||||||||||||||
36.02 | Column | ||||||||||||||||||||
36.03 | Column | ||||||||||||||||||||
36.04 | Column | ||||||||||||||||||||
36.05 | Column | ||||||||||||||||||||
36.06 | Column | ||||||||||||||||||||
36.07 | Column | ||||||||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | 0 | 12,500 | 0 | 0 | 12,325 | 5,446 | 0 | 0 | |||||||||||
38 | Column | BMA Brookwood Apartments, LLC | 7,227 | 83,785 | 0 | 0 | 56,537 | 13,911 | 0 | 0 | |||||||||||
39 | UBSRES | Deerfield 21 Corporation | 0 | 147,500 | 0 | 0 | 286,197 | 276,354 | 0 | 0 | |||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | 0 | 0 | 0 | 0 | 170,018 | 0 | 0 | 550,000 | |||||||||||
41 | Column | Sherwood Equity LLC | 4,500 | 14,188 | 0 | 0 | 52,482 | 0 | 0 | 200,000 | |||||||||||
42 | Column | Pickerington Plaza Limited Partnership | 0 | 0 | 0 | 350,000 | 117,285 | 15,846 | 0 | 0 | |||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | 0 | 607,228 | 0 | 150,000 | 164,737 | 10,964 | 0 | 1,619,500 | |||||||||||
44 | Column | Konark Limited Partnership | 0 | 12,813 | 0 | 0 | 191,850 | 24,444 | 0 | 0 | |||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | 0 | 0 | 0 | 0 | 40,941 | 4,721 | 0 | 0 | |||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | 0 | 55,531 | 0 | 0 | 26,310 | 45,506 | 0 | 0 | |||||||||||
46.01 | BSP | ||||||||||||||||||||
46.02 | BSP | ||||||||||||||||||||
46.03 | BSP | ||||||||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | 2,813 | 48,438 | 0 | 6,665 | 92,478 | 2,362 | 0 | 500,000 | |||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | 1,324 | 0 | 0 | 6,129 | 22,088 | 0 | 0 | 0 | |||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | 0 | 154,465 | 0 | 0 | 86,433 | 0 | 0 | 0 | |||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | 0 | 13,750 | 0 | 0 | 19,320 | 0 | 0 | 0 | |||||||||||
51 | BSP | HEC - RNBT LLC | 0 | 8,100 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | 17,103 | 66,156 | 0 | 425,000 | 4,718 | 6,163 | 0 | 508,947 | |||||||||||
53 | Column | Tara Hills LLC | 1,000,000 | 185,723 | 0 | 0 | 42,223 | 3,306 | 0 | 0 | |||||||||||
54 | BSP | Baltimore North Hotel LLC | 7,768 | 29,375 | 0 | 0 | 8,970 | 20,157 | 0 | 55,563 | |||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | 0 | 49,188 | 0 | 0 | 49,050 | 31,083 | 0 | 0 | |||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | 0 | 0 | 0 | 0 | 45,365 | 17,291 | 0 | 0 | |||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | 0 | 0 | 0 | 0 | 14,434 | 675 | 0 | 16,000 | |||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | 0 | 0 | 0 | 0 | 0 | 6,319 | 0 | 0 | |||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 100,000 | |||||||||||
60 | The Bancorp Bank | CCBP II LLC | 0 | 63,313 | 0 | 0 | 47,500 | 2,000 | 0 | 138,681 | |||||||||||
61 | UBSRES | Chapanoke Square LLC | 0 | 0 | 0 | 0 | 34,153 | 4,396 | 0 | 0 | |||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | 0 | 258,724 | 0 | 0 | 16,657 | 0 | 0 | 0 | |||||||||||
62.01 | UBSRES | ||||||||||||||||||||
62.02 | UBSRES | ||||||||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | 0 | 0 | 0 | 150,000 | 72,594 | 11,507 | 0 | 34,302 | |||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | 0 | 12,500 | 0 | 0 | 22,537 | 1,167 | 0 | 0 | |||||||||||
65 | The Bancorp Bank | NB Penn LLC | 0 | 14,813 | 0 | 65,448 | 0 | 0 | 0 | 0 | |||||||||||
65.01 | The Bancorp Bank | ||||||||||||||||||||
65.02 | The Bancorp Bank | ||||||||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | 0 | 0 | 0 | 0 | 14,443 | 0 | 0 | 0 | |||||||||||
67 | BSP | Zukin Family Limited Partnership | 0 | 0 | 0 | 0 | 15,513 | 0 | 0 | 0 | |||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | 287,000 | 113,000 | 0 | 0 | 42,792 | 46,508 | 0 | 0 | |||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | 0 | 0 | 0 | 0 | 47,852 | 5,661 | 0 | 0 | |||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | 0 | 0 | 0 | 0 | 37,220 | 2,951 | 0 | 142,500 | |||||||||||
71 | Column | Glendale Communities LP | 0 | 10,661 | 0 | 0 | 16,884 | 1,211 | 0 | 0 | |||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | 0 | 0 | 0 | 0 | 7,276 | 5,406 | 0 | 0 | |||||||||||
73 | Column | NP Granada MHC Associates, LLC | 1,175 | 17,154 | 0 | 0 | 17,454 | 11,238 | 0 | 0 | |||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | 0 | 0 | 0 | 0 | 21,424 | 8,110 | 0 | 0 | |||||||||||
75 | UBSRES | Shea Renaissance, LLC | 675,331 | 18,590 | 0 | 0 | 96,836 | 47,836 | 0 | 0 | |||||||||||
76 | Column | JP Chattanooga I, LLC | 838 | 17,500 | 0 | 0 | 84,400 | 4,467 | 0 | 0 | |||||||||||
76.01 | Column | ||||||||||||||||||||
76.02 | Column | ||||||||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | 0 | 43,750 | 0 | 0 | 25,703 | 3,873 | 0 | 0 | |||||||||||
78 | The Bancorp Bank | Avnet II LLC | 0 | 93,031 | 0 | 0 | 2,500 | 8,250 | 0 | 0 | |||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | 0 | 0 | 0 | 0 | 0 | 0 | 141,365 | 0 | |||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | 0 | 750 | 0 | 0 | 35,081 | 2,060 | 0 | 0 | |||||||||||
81 | BNYM | EST Virginia LLC | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | 0 | 0 | 0 | 0 | 39,833 | 833 | 0 | 0 | |||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | 0 | 0 | 0 | 0 | 1,595 | 234 | 0 | 0 | |||||||||||
83.01 | BSP | ||||||||||||||||||||
83.02 | BSP | ||||||||||||||||||||
83.03 | BSP | ||||||||||||||||||||
83.04 | BSP | ||||||||||||||||||||
83.05 | BSP | ||||||||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | 0 | 0 | 0 | 0 | 10,408 | 0 | 0 | 0 | |||||||||||
85 | UBSRES | Portz Properties, LLC | 45,000 | 0 | 0 | 0 | 55,890 | 3,542 | 0 | 0 | |||||||||||
86 | Column | JP Baytown I, LLC | 463 | 0 | 0 | 0 | 9,138 | 6,069 | 0 | 0 | |||||||||||
87 | Column | Wendy Bagwell Venture, LLC | 0 | 0 | 0 | 0 | 16,245 | 0 | 0 | 0 | |||||||||||
88 | Column | Teal Holdings, LLC | 0 | 0 | 0 | 50,000 | 2,545 | 936 | 0 | 0 | |||||||||||
89 | Column | Scenic Ridge, LLC | 0 | 0 | 0 | 0 | 0 | 1,916 | 0 | 60,000 |
PERIODIC ESCROW | |||||||||||||||||||||||||||||
Loan ID # | Originator/Loan Seller | Mortgagor Name | Monthly Capex Reserve | Monthly Envir. Reserve | Monthly TI/LC Reserve | Monthly RE Tax Reserve | Monthly Ins. Reserve | Monthly Debt Service Reserve | Monthly Other Reserve | Grace (Late Payment) | Cash-Management Account or Lockbox In-place | General Property Type | Defeasance Permitted | Final Maturity Date | |||||||||||||||
1 | UBSRES | DMP CR Plaza, LLC | Springing | 0 | Springing | 270,526 | Springing | 0 | Springing | 0 | Yes | Office | Yes | 04/06/29 | |||||||||||||||
2 | Column | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | 4% of gross income from operations for the calendar month which is 2 months prior to the applicable payment date | 0 | 0 | Springing | Springing | 0 | 0 | 0 | Yes | Hotel | Yes | 07/06/20 | |||||||||||||||
2.01 | Column | Hotel | |||||||||||||||||||||||||||
2.02 | Column | Hotel | |||||||||||||||||||||||||||
2.03 | Column | Hotel | |||||||||||||||||||||||||||
2.04 | Column | Hotel | |||||||||||||||||||||||||||
2.05 | Column | Hotel | |||||||||||||||||||||||||||
2.06 | Column | Hotel | |||||||||||||||||||||||||||
2.07 | Column | Hotel | |||||||||||||||||||||||||||
2.08 | Column | Hotel | |||||||||||||||||||||||||||
2.09 | Column | Hotel | |||||||||||||||||||||||||||
2.1 | Column | Hotel | |||||||||||||||||||||||||||
2.11 | Column | Hotel | |||||||||||||||||||||||||||
2.12 | Column | Hotel | |||||||||||||||||||||||||||
2.13 | Column | Hotel | |||||||||||||||||||||||||||
2.14 | Column | Hotel | |||||||||||||||||||||||||||
2.15 | Column | Hotel | |||||||||||||||||||||||||||
2.16 | Column | Hotel | |||||||||||||||||||||||||||
2.17 | Column | Hotel | |||||||||||||||||||||||||||
2.18 | Column | Hotel | |||||||||||||||||||||||||||
2.19 | Column | Hotel | |||||||||||||||||||||||||||
2.2 | Column | Hotel | |||||||||||||||||||||||||||
2.21 | Column | Hotel | |||||||||||||||||||||||||||
2.22 | Column | Hotel | |||||||||||||||||||||||||||
2.23 | Column | Hotel | |||||||||||||||||||||||||||
2.24 | Column | Hotel | |||||||||||||||||||||||||||
2.25 | Column | Hotel | |||||||||||||||||||||||||||
2.26 | Column | Hotel | |||||||||||||||||||||||||||
2.27 | Column | Hotel | |||||||||||||||||||||||||||
2.28 | Column | Hotel | |||||||||||||||||||||||||||
2.29 | Column | Hotel | |||||||||||||||||||||||||||
2.3 | Column | Hotel | |||||||||||||||||||||||||||
2.31 | Column | Hotel | |||||||||||||||||||||||||||
2.32 | Column | Hotel | |||||||||||||||||||||||||||
2.33 | Column | Hotel | |||||||||||||||||||||||||||
2.34 | Column | Hotel | |||||||||||||||||||||||||||
2.35 | Column | Hotel | |||||||||||||||||||||||||||
2.36 | Column | Hotel | |||||||||||||||||||||||||||
2.37 | Column | Hotel | |||||||||||||||||||||||||||
2.38 | Column | Hotel | |||||||||||||||||||||||||||
2.39 | Column | Hotel | |||||||||||||||||||||||||||
2.4 | Column | Hotel | |||||||||||||||||||||||||||
2.41 | Column | Hotel | |||||||||||||||||||||||||||
2.42 | Column | Hotel | |||||||||||||||||||||||||||
2.43 | Column | Hotel | |||||||||||||||||||||||||||
2.44 | Column | Hotel | |||||||||||||||||||||||||||
2.45 | Column | Hotel | |||||||||||||||||||||||||||
2.46 | Column | Hotel | |||||||||||||||||||||||||||
2.47 | Column | Hotel | |||||||||||||||||||||||||||
2.48 | Column | Hotel | |||||||||||||||||||||||||||
2.49 | Column | Hotel | |||||||||||||||||||||||||||
2.5 | Column | Hotel | |||||||||||||||||||||||||||
3 | UBSRES | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | Springing | 0 | Springing | Springing | Springing | 0 | 0 | 0 | Yes | Retail | Yes | 07/01/25 | |||||||||||||||
4 | Column | Wheaton Plaza Regional Shopping Center LLC | Springing | 0 | Springing | Springing | Springing | 0 | 0 | 5 | Yes | Retail | Yes | 03/01/25 | |||||||||||||||
5 | Column | Arizona Grand Resort, LLC | Greater of 4% of the gross income from operations for the calendar month which is 2 months prior to the payment date or amount required in the management agreement | 0 | 163,614 | 54,086 | 0 | Springing | 0 | Yes | Hotel | Yes | 07/06/25 | ||||||||||||||||
6 | Column | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | 4% of the total gross revenue for the calendar month that is 2 calendar month prior | 0 | 0 | 546,452 | Springing | 0 | Springing | 0 | Yes | Hotel | Yes | 11/06/24 | |||||||||||||||
6.01 | Column | Hotel | |||||||||||||||||||||||||||
6.02 | Column | Hotel | |||||||||||||||||||||||||||
7 | Column | Trumbull Shopping Center #2 LLC | Springing | 0 | Springing | Springing | Springing | 0 | 0 | 5 | Yes | Retail | Yes | 03/01/25 | |||||||||||||||
8 | BNYM | Henderson Beach Partners, LLC | 3,883 | 0 | 0 | 29,772 | Springing | 0 | 0 | 0 | No | Multifamily | Yes | 06/06/25 | |||||||||||||||
9 | BNYM | Diamond Capital Group, LP | 2,217 | 0 | 11,919 | 25,531 | Springing | 0 | 0 | 0 | No | Office | No | 08/06/25 | |||||||||||||||
10 | BSP | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | 139 | 0 | 0 | 45,805 | 464 | 0 | Springing | 0 | Yes | Retail | No | 08/06/25 | |||||||||||||||
11 | Column | Summer Lake Villas LLC | 8,818 | 0 | 0 | 25,851 | 21,363 | 0 | 0 | 0 | No | Multifamily | Yes | 07/06/25 | |||||||||||||||
11.01 | Column | Multifamily | |||||||||||||||||||||||||||
11.02 | Column | Multifamily | |||||||||||||||||||||||||||
11.03 | Column | Multifamily | |||||||||||||||||||||||||||
12 | The Bancorp Bank | Greenwood Holdings, LLC | 4% of rent for prior month | 0 | 0 | 24,950 | 5,790 | 0 | Springing | 0 | No | Hotel | Yes | 05/05/25 | |||||||||||||||
13 | BNYM | SAC Hospitality LLC | Springing | 0 | 0 | 28,671 | Springing | 0 | 0 | 0 | No | Hotel | Yes | 07/06/20 | |||||||||||||||
14 | BSP | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | 1,068 | 0 | 0 | Springing | Springing | 0 | 0 | 0 | Yes | Industrial | Yes | 06/06/25 | |||||||||||||||
15 | BNYM | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | 13,892 | 0 | 0 | 28,569 | Springing | 0 | 0 | 0 | Yes | Multifamily | Yes | 03/06/25 | |||||||||||||||
15.01 | BNYM | Multifamily | |||||||||||||||||||||||||||
15.02 | BNYM | Multifamily | |||||||||||||||||||||||||||
15.03 | BNYM | Multifamily | |||||||||||||||||||||||||||
15.04 | BNYM | Multifamily | |||||||||||||||||||||||||||
15.05 | BNYM | Multifamily | |||||||||||||||||||||||||||
15.06 | BNYM | Multifamily | |||||||||||||||||||||||||||
16 | UBSRES | Privet Birmingham Crescent, LLC | 2,682 | 0 | 17,494 | 29,377 | 2,856 | 0 | Springing | 0 | Yes | Office | Yes | 07/06/25 | |||||||||||||||
17 | UBSRES | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | The greater of (a) an amount equal to 1/12 of 4% of Gross Income from Operations during the calendar year immediately preceding the calendar year in which such Monthly Payment Date occurs and (b) the aggregate amount, required to be reserved under the Management Agreement and the Franchise Agreement | 0 | 0 | 18,211 | 1,741 | 0 | Springing | 0 | Yes | Hotel | Yes | 07/06/25 | |||||||||||||||
18 | BNYM | 7101 Sunset, LLC | 623 | 0 | 3,898 | 10,831 | 1,623 | 0 | 0 | 0 | No | Retail | Yes | 07/06/25 | |||||||||||||||
19 | BNYM | Peppertree Capital, LP | 1,289 | 0 | 8,836 | 9,087 | Springing | 0 | 0 | 0 | No | Office | No | 08/06/25 | |||||||||||||||
20 | BNYM | 250 South Clinton LLC | 3,660 | 0 | 31,650 | 60,553 | 3,970 | 0 | 0 | 0 | Yes | Office | Yes | 08/06/25 | |||||||||||||||
20.01 | BNYM | Office | |||||||||||||||||||||||||||
20.02 | BNYM | Office | |||||||||||||||||||||||||||
21 | Column | Ranch on the River, LP | 3,067 | 0 | 0 | 27,625 | 3,897 | 0 | 0 | 0 | Yes | Multifamily | Yes | 07/06/25 | |||||||||||||||
22 | UBSRES | BT (Multi) LLC | Springing | 0 | Springing | Springing | Springing | 0 | 0 | 0 | No | Retail | Yes | 07/06/25 | |||||||||||||||
22.01 | UBSRES | Retail | |||||||||||||||||||||||||||
22.02 | UBSRES | Retail | |||||||||||||||||||||||||||
22.03 | UBSRES | Retail | |||||||||||||||||||||||||||
22.04 | UBSRES | Retail | |||||||||||||||||||||||||||
22.05 | UBSRES | Retail | |||||||||||||||||||||||||||
22.06 | UBSRES | Retail | |||||||||||||||||||||||||||
23 | UBSRES | Scannell Properties #183, LLC | 1,751 | 0 | 0 | Springing | Springing | 0 | Springing | 0 | Yes | Industrial | Yes | 07/06/25 | |||||||||||||||
24 | Column | 2015 Houston Sterling Point, LLC | 19,650 | 0 | 0 | 60,667 | 34,330 | 0 | 0 | 0 | No | Multifamily | Yes | 05/06/25 | |||||||||||||||
25 | BSP | 1315 Lincoln Owner LLC | 490 | 0 | 4,177 | 12,763 | 702 | 0 | Springing | 0 | Yes | Office | Yes | 05/06/20 | |||||||||||||||
26 | UBSRES | Congress Hall Limited Liability Company; Perry Street Associates, LLC | From July through and including October of each year, the greater of (a) the sum of (i) an amount equal to 1/4 of 4% of the Room Revenue during the Shortfall Calculation Period immediately preceding such Monthly Payment Date occurs and (ii) $875 and (b) the aggregate amount, required to be reserved under the Management Agreement and the Franchise Agreement | 0 | 0 | 21,596 | Springing | 0 | Springing | 0 | Yes | Hotel | Yes | 08/06/25 | |||||||||||||||
26.01 | UBSRES | Hotel | |||||||||||||||||||||||||||
26.02 | UBSRES | Hotel | |||||||||||||||||||||||||||
27 | Column | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | 1,539 | 0 | 8,548 | Springing | Springing | Springing | 0 | Yes | Office | Yes | 08/06/25 | ||||||||||||||||
28 | The Bancorp Bank | RE Dunwoody Holdings #1, LLC | 2,913 | 0 | 0 | 15,833 | 3,333 | 0 | 0 | 0 | No | Multifamily | Yes | 07/05/25 | |||||||||||||||
29 | Column | 4800 Sugar Grove, LLC | 2,060 | 0 | 13,583 | 13,481 | 1,383 | 0 | Springing | 0 | Yes | Office | No | 07/06/25 | |||||||||||||||
30 | UBSRES | Northwest of McAllen Limited Partnership | Greater of (a) 1/12 of 1% (closing date - July 2016), 2% (August 2016-September 2017), 3% (October 2017-November 2018), 4% thereafter of Gross Income from Operations and (b) the aggregate amount required under the Management Agreement and the Franchise Agreement | 0 | 0 | 19,300 | Springing | 0 | Springing | 0 | Yes | Hotel | No | 07/06/25 | |||||||||||||||
31 | UBSRES | Jahco Burleson Town Center LLC | 1,760 | 0 | 7,629 | 27,994 | 2,921 | 0 | Springing | 0 | No | Retail | Yes | 07/06/25 | |||||||||||||||
32 | Column | HH-Laveen, LLC | 1,276 | 0 | 8,948 | 11,548 | 1,946 | 0 | Springing | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
33 | BSP | NG BIM Colony Plaza LLC | 3,250 | 0 | 12,640 | 12,908 | 1,240 | 0 | Springing | 0 | Yes | Retail | Yes | 07/06/25 | |||||||||||||||
34 | Column | GA HC REIT II Vicksburg MS MOB, LLC | 1,301 | 0 | Springing | Springing | Springing | 0 | 1,249 | 0 | Yes | Office | Yes | 06/06/25 | |||||||||||||||
35 | BSP | Millside Plaza LLC | 970 | 0 | 5,495 | 23,101 | 2,110 | 0 | Springing | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
36 | Column | Self Storage LLC | Springing | 0 | 0 | 5,160 | 3,764 | 0 | 0 | 0 | No | Self Storage | Yes | 07/06/25 | |||||||||||||||
36.01 | Column | Self Storage | |||||||||||||||||||||||||||
36.02 | Column | Self Storage | |||||||||||||||||||||||||||
36.03 | Column | Self Storage | |||||||||||||||||||||||||||
36.04 | Column | Self Storage | |||||||||||||||||||||||||||
36.05 | Column | Self Storage | |||||||||||||||||||||||||||
36.06 | Column | Self Storage | |||||||||||||||||||||||||||
36.07 | Column | Self Storage | |||||||||||||||||||||||||||
37 | Column | Alvarado Real Estate Investments LLC | 570 | 0 | 0 | 12,325 | 454 | 0 | 0 | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
38 | Column | BMA Brookwood Apartments, LLC | 7,227 | 0 | 0 | 9,423 | 3,478 | 0 | 0 | 0 | No | Multifamily | Yes | 06/06/25 | |||||||||||||||
39 | UBSRES | Deerfield 21 Corporation | 0 | 0 | 0 | 33,279 | 23,824 | 0 | 0 | 0 | No | Hotel | Yes | 06/06/25 | |||||||||||||||
40 | BNYM | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | 1/12 of 4% of total revenue | 0 | 0 | 17,421 | Springing | 0 | Springing | 0 | No | Hotel | Yes | 06/06/25 | |||||||||||||||
41 | Column | Sherwood Equity LLC | 4,500 | 0 | 0 | 10,496 | 13,586 | 0 | 0 | 0 | Yes | Multifamily | Yes | 06/06/25 | |||||||||||||||
42 | Column | Pickerington Plaza Limited Partnership | 1,108 | 0 | 7,333 | 23,457 | 1,321 | 0 | Springing | 0 | No | Retail | Yes | 05/01/25 | |||||||||||||||
43 | UBSRES | Crossroads Shopping Center Investments, LLC | 4,186 | 0 | $8,333 before Specified Tenant Trigger Event, $25,000 after | 19,502 | 2,384 | 0 | 0 | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
44 | Column | Konark Limited Partnership | 5,204 | 0 | 0 | 27,407 | 6,111 | 0 | 0 | 0 | Yes | Multifamily | Yes | 07/01/25 | |||||||||||||||
45 | Column | Varner NLS, LLC & Varner 203, LLC | 329 | 0 | 1,644 | 3,722 | 944 | Springing | 0 | Yes | Retail | Yes | 08/06/25 | ||||||||||||||||
46 | BSP | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | 6,757 | 0 | 0 | 6,486 | 9,101 | 0 | 0 | 0 | No | Multifamily | Yes | 07/06/25 | |||||||||||||||
46.01 | BSP | Multifamily | |||||||||||||||||||||||||||
46.02 | BSP | Multifamily | |||||||||||||||||||||||||||
46.03 | BSP | Multifamily | |||||||||||||||||||||||||||
47 | Column | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | 2,813 | 0 | 6,665 | 11,560 | 7,763 | 0 | Springing | 0 | Yes | Retail | Yes | 07/06/25 | |||||||||||||||
48 | BNYM | 2280 Corporate Circle, LLC | 1,324 | 0 | 6,129 | 8,319 | Springing | 0 | Springing | 0 | Yes | Office | Yes | 08/06/25 | |||||||||||||||
49 | UBSRES | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | 1,203 | 0 | 0 | 10,050 | Springing | 0 | 0 | 0 | No | Self Storage | No | 07/06/25 | |||||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas, LLC | 1,414 | 0 | 2,701 | 9,660 | 1,137 | 0 | 0 | 0 | Yes | Retail | Yes | 06/05/25 | |||||||||||||||
51 | BSP | HEC - RNBT LLC | Springing | 0 | 0 | Springing | Springing | 0 | 0 | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
52 | UBSRES | 800 Chester Pike Associates, LP | 1,425 | 0 | Springing | Springing | 1,712 | 0 | Springing | 0 | Yes | Industrial | Yes | 08/06/25 | |||||||||||||||
53 | Column | Tara Hills LLC | 4,618 | 0 | 0 | 8,445 | 3,306 | 0 | 0 | 0 | No | Multifamily | Yes | 06/06/25 | |||||||||||||||
54 | BSP | Baltimore North Hotel LLC | 1/12 of 4% of the greater of (i) gross revenues for the preceding calendar year, or (ii) the projected gross revenues for the current calendar year | 0 | 0 | 8,970 | 2,520 | 0 | Springing | 0 | No | Hotel | Yes | 08/06/25 | |||||||||||||||
55 | The Bancorp Bank | AHH Paradise LLC | 3,171 | 0 | 0 | 8,175 | 3,454 | 0 | 0 | 0 | No | Multifamily | Yes | 07/05/25 | |||||||||||||||
56 | UBSRES | Monroe Center Associates, L.L.C. | 403 | 0 | 3,358 | 12,601 | 1,372 | 0 | Springing | 0 | Yes | Retail | Yes | 07/06/25 | |||||||||||||||
57 | BNYM | Mount Hermon Road Self Storage LLC | 934 | 0 | 0 | 7,217 | Springing | 0 | Springing | 0 | Yes | Self Storage | Yes | 07/06/20 | |||||||||||||||
58 | BSP | Bloomfield Valley Properties, LLC | 798 | 0 | 3,990 | 12,953 | 1,264 | 0 | 0 | 0 | No | Office | Yes | 08/06/25 | |||||||||||||||
59 | The Bancorp Bank | Waterford 20 LLC | Springing | 0 | 0 | Springing | Springing | 0 | 0 | 0 | No | Retail | Yes | 06/05/25 | |||||||||||||||
60 | The Bancorp Bank | CCBP II LLC | 1,999 | 0 | 4,997 | 15,833 | Springing | 0 | 0 | 0 | Yes | Industrial | Yes | 07/05/25 | |||||||||||||||
61 | UBSRES | Chapanoke Square LLC | 1,505 | 0 | 3,386 | 5,175 | 1,691 | 0 | Springing | 0 | Yes | Retail | Yes | 06/06/25 | |||||||||||||||
62 | UBSRES | EL Acquisition LLC; Orbis Acquisition, LLC | 1,738 | 0 | 4,344 | 10,410 | Springing | 0 | Springing | 0 | Yes | Industrial | Yes | 07/06/25 | |||||||||||||||
62.01 | UBSRES | Industrial | |||||||||||||||||||||||||||
62.02 | UBSRES | Industrial | |||||||||||||||||||||||||||
63 | UBSRES | WC-Stahelin, LLC | 4,309 | 0 | Springing | 12,963 | 3,196 | 0 | Springing | 0 | Yes | Industrial | Yes | 06/06/25 | |||||||||||||||
64 | The Bancorp Bank | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | 1,287 | 0 | 0 | 7,512 | 1,167 | 0 | 0 | 0 | No | Multifamily | Yes | 07/05/25 | |||||||||||||||
65 | The Bancorp Bank | NB Penn LLC | Springing | 0 | Springing | Springing | Springing | 0 | 0 | 0 | No | Retail | Yes | 07/05/25 | |||||||||||||||
65.01 | The Bancorp Bank | Retail | |||||||||||||||||||||||||||
65.02 | The Bancorp Bank | Retail | |||||||||||||||||||||||||||
66 | UBSRES | A Storage Place-La Sierra, LP | Springing | 0 | 0 | 5,555 | Springing | 0 | 0 | 0 | No | Self Storage | Yes | 07/06/25 | |||||||||||||||
67 | BSP | Zukin Family Limited Partnership | 233 | 0 | 745 | 5,171 | Springing | 0 | 0 | 5 | No | Retail | Yes | 07/01/25 | |||||||||||||||
68 | BNYM | Cornerstone-Meadows Limited Partnership | Springing | 0 | 0 | 5,349 | Springing | 0 | 0 | 0 | No | Multifamily | Yes | 08/06/25 | |||||||||||||||
69 | BSP | Hudson Valley Resort LLC; Green Hospitality LLC | 1/12 of 4% of the greater of (i) gross revenues for the preceding calendar year, or (ii) the projected gross revenues for the current calendar year | 0 | 0 | 6,836 | 2,830 | 0 | 0 | 0 | No | Hotel | Yes | 07/06/25 | |||||||||||||||
70 | UBSRES | LMF Richmond, LLC; LMF Rambeau, LLC | 185 | 0 | 1,667 | 4,897 | 820 | 0 | Springing | 0 | No | Retail | Yes | 07/06/25 | |||||||||||||||
71 | Column | Glendale Communities LP | 467 | 0 | 0 | 1,688 | 605 | 0 | 0 | 0 | No | Manufactured Housing | Yes | 07/06/25 | |||||||||||||||
72 | UBSRES | Central Avenue Self Storage, L.P. | Springing | 0 | 0 | 4,548 | Springing | 0 | 0 | 0 | No | Self Storage | Yes | 05/06/25 | |||||||||||||||
73 | Column | NP Granada MHC Associates, LLC | 1,175 | 0 | 0 | 2,909 | 1,022 | 0 | 0 | 0 | No | Manufactured Housing | Yes | 06/06/25 | |||||||||||||||
74 | Column | Santa Paula Self-Storage, L.P. | 0 | 0 | 0 | 4,285 | 811 | 0 | 0 | 0 | No | Self Storage | Yes | 06/06/25 | |||||||||||||||
75 | UBSRES | Shea Renaissance, LLC | Springing | 0 | 0 | 14,672 | 4,983 | 0 | 0 | 0 | No | Multifamily | No | 06/06/25 | |||||||||||||||
76 | Column | JP Chattanooga I, LLC | 838 | 0 | 0 | 8,440 | 1,117 | 0 | 0 | 0 | No | Manufactured Housing | Yes | 07/06/25 | |||||||||||||||
76.01 | Column | Manufactured Housing | |||||||||||||||||||||||||||
76.02 | Column | Manufactured Housing | |||||||||||||||||||||||||||
77 | The Bancorp Bank | Eleven Ten, LLC | 564 | 0 | 1,623 | 3,672 | 387 | 0 | 0 | 0 | No | Office | Yes | 08/05/25 | |||||||||||||||
78 | The Bancorp Bank | Avnet II LLC | 4,875 | 0 | 0 | 2,500 | 8,250 | 0 | 0 | 0 | Yes | Multifamily | Yes | 05/05/25 | |||||||||||||||
79 | BSP | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | 0 | 0 | 0 | Springing | Springing | Springing | 0 | 0 | No | Other | Yes | 05/06/25 | |||||||||||||||
80 | The Bancorp Bank | American Self Storage Of Hemet, LLC | 648 | 0 | 0 | 3,508 | 1,030 | 0 | 0 | 0 | Yes | Self Storage | Yes | 08/05/25 | |||||||||||||||
81 | BNYM | EST Virginia LLC | Springing | 0 | 0 | Springing | Springing | 0 | 0 | 0 | No | Retail | No | 07/06/25 | |||||||||||||||
82 | The Bancorp Bank | Chapel Hill Villas, LLC | 300 | 0 | 0 | 3,983 | 833 | 0 | 0 | 0 | No | Multifamily | Yes | 07/05/25 | |||||||||||||||
83 | BSP | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | 0 | 0 | 1,471 | 1,595 | 234 | 0 | Springing | 0 | Yes | Other | Yes | 06/06/25 | |||||||||||||||
83.01 | BSP | Other | |||||||||||||||||||||||||||
83.02 | BSP | Other | |||||||||||||||||||||||||||
83.03 | BSP | Other | |||||||||||||||||||||||||||
83.04 | BSP | Other | |||||||||||||||||||||||||||
83.05 | BSP | Other | |||||||||||||||||||||||||||
84 | UBSRES | A Storage Place-Barton Road, LP | Springing | 0 | 0 | 4,003 | Springing | 0 | 0 | 0 | No | Self Storage | Yes | 07/06/25 | |||||||||||||||
85 | UBSRES | Portz Properties, LLC | 169 | 0 | Springing | Springing | Springing | 0 | Springing | 0 | No | Retail | Yes | 04/30/40 | |||||||||||||||
86 | Column | JP Baytown I, LLC | 463 | 0 | 0 | 914 | 1,517 | 0 | 0 | 0 | No | Manufactured Housing | Yes | 07/06/25 | |||||||||||||||
87 | Column | Wendy Bagwell Venture, LLC | 158 | 0 | 998 | 1,805 | 269 | 0 | 0 | 0 | No | Retail | Yes | 07/06/25 | |||||||||||||||
88 | Column | Teal Holdings, LLC | Springing | 0 | Springing | 2,546 | 104 | 0 | Springing | 0 | Yes | Retail | Yes | 05/01/25 | |||||||||||||||
89 | Column | Scenic Ridge, LLC | 115 | 0 | 800 | 2,961 | 240 | 0 | 0 | 0 | No | Retail | No | 07/06/25 |
EXHIBIT C
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian/Certificate Administrator)
Loan Information:
Name of Mortgagor: __________________
Master Servicer Loan No.: __________________
Custodian/Trustee
Name: __________________
Address: __________________
__________________
__________________
Custodian/Trustee Mortgage File No.: __________________
[Seller]
Name: __________________
Address: __________________
__________________
Certificates: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [____] |
The undersigned [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] hereby requests release from Wells Fargo Bank, National Association, as Custodian, for the Holders of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, of the documents referred to below (the “Documents”). All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer.
( ) Note dated _________, _____, in the original principal sum of $_____, made by _______, payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on ____________ as instrument no. ________ in the County Recorder’s Office of the County of _______________, State of _________________ in book/reel/docket ___________ of official records at page/image ________.
( ) Deed of Trust recorded on __________ as instrument no. ________ in the County Recorder’s Office of the County of ____________, State of _______ in book/reel/docket ____________ of official records at page/image.
Exhibit C-1 |
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on _____________ as instrument no. _______ in the County Recorder’s Office of the County of _________, State of _______ in book/reel/docket __________ of official records at page/image _____________.
( ) Other documents, including any amendments, assignments or other assumptions of the Note or Mortgage.
( ) ___________________________
( ) ___________________________
( ) ___________________________
( ) ___________________________
The undersigned [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] hereby acknowledges and agrees as follows:
(i) The [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] shall hold and retain possession of the Documents in trust for the benefit of the Trustee, solely for the purposes provided in the Agreement.
(ii) The [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claim, liens, security interest, charges, writs of attachment or other impositions nor shall the [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof.
(iii) The [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] shall return the Documents to the Custodian when the need therefor no longer exists, unless the Mortgage Loan relating to the Documents has been liquidated and the proceeds thereof have been remitted to the Collection Account and except as expressly provided in the Agreement.
(iv) The Documents and any proceeds thereof, including any proceeds of proceeds, coming into the possession or control of the [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] shall at all times be earmarked for the account of the Trustee, and the [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer] shall keep the Documents and any proceeds separate and distinct from all other property in the [Master Servicer][Special Servicer][Other Master Servicer][Other Special Servicer]’s possession, custody or control.
Exhibit C-2 |
[ ] | |||
By: | |||
Name: | |||
Title: | |||
Dated: |
Exhibit C-3 |
EXHIBIT D
FORM OF DISTRIBUTION DATE STATEMENT
See Annex D to the Prospectus Supplement
Exhibit D-1 |
EXHIBIT E
FORM OF TRANSFER CERTIFICATE
FOR RULE 144A GLOBAL CERTIFICATE
TO TEMPORARY REGULATION S GLOBAL CERTIFICATE
(Exchanges or transfers pursuant to
Section 5.03(c) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113 |
Attention: CMBS – CSAIL 2015-C3 |
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with the Depository in the name of [Euroclear] [Clearstream]* (Common Code No. [______]).
In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United States;
* Select appropriate depository.
Exhibit E-1 |
[(2) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]**
[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]**
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) the transferee is an institution.
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] | |||
By: | |||
Name: | |||
Title: |
Dated: _______
cc: Credit Suisse First Boston Mortgage Securities Corp.
** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.
Exhibit E-2 |
EXHIBIT F
FORM OF TRANSFER CERTIFICATE
FOR RULE 144A GLOBAL CERTIFICATE
TO REGULATION S GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.03(d) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113 |
Attention: CMBS – CSAIL 2015-C3 |
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Regulation S Global Certificate of such Class (CINS No. [______], ISIN No. [______], and Common Code No. [______]).
In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and, (i) with respect to transfers made in reliance on Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United States;
Exhibit F-1 |
[(2) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]*
[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] *
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) the transferee is an institution.
or (ii) with respect to transfers made in reliance on Rule 144 under the Securities Act, the Transferor does hereby certify that the Certificates are being transferred in a transaction permitted by Rule 144 under the Securities Act.**
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] |
|||
By: | |||
Name: | |||
Title: |
Dated: _______
cc: Credit Suisse First Boston Mortgage Securities Corp.
* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.
** Select (i) or (ii), as applicable.
Exhibit F-2 |
EXHIBIT G
FORM OF TRANSFER CERTIFICATE
FOR TEMPORARY REGULATION S GLOBAL CERTIFICATE
TO RULE 144A GLOBAL CERTIFICATE DURING RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.03(e) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113 |
Attention: CMBS – CSAIL 2015-C3 |
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) with [Euroclear] [Clearstream]* (Common Code [______]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]).
In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.
* Select appropriate depository.
Exhibit G-1 |
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] |
|||
By: | |||
Name: | |||
Title: |
Dated: _______
cc: Credit Suisse First Boston Mortgage Securities Corp.
Exhibit G-2 |
EXHIBIT H
FORM OF CERTIFICATION TO BE GIVEN BY
BENEFICIAL OWNER OF TEMPORARY
REGULATION S GLOBAL CERTIFICATE
(Exchanges pursuant to
Section 5.03(f) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
[For purposes of acquiring a beneficial interest in a Regulation S Global Certificate of the Class specified above after the expiration of the Restricted Period,] [For purposes of receiving payments under a Temporary Regulation S Global Certificate of the Class specified above,]* the undersigned holder of a beneficial interest in a Temporary Regulation S Global Certificate of the Class specified above issued under the Pooling and Servicing Agreement certifies that it is an institution that is not a “U.S. person” as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by facsimile on or prior to the date on which you intend to submit your corresponding certification relating to the Certificates of the Class specified above held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding.
* Select, as applicable.
Exhibit H-1 |
This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
Dated:______________ | |||
By: | |||
as, or as agent for, the holder of a beneficial interest in the Certificates to which this certificate relates. |
Exhibit H-2 |
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO TEMPORARY REGULATION S GLOBAL CERTIFICATE
(Exchanges or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with [Euroclear] [Clearstream]* (Common Code [______]) through the Depository.
In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United States;
* Select appropriate depository.
Exhibit I-1 |
[(2) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]**
[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] **
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) the transferee is an institution.
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] |
|||
By: | |||
Name: | |||
Title: |
Dated: ________
cc: Credit Suisse First Boston Mortgage Securities Corp.
** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.
Exhibit I-2 |
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO REGULATION S GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Regulation S Global Certificate (CINS No. [______], ISIN No. [______], and Common Code No. [______]).
In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and, (i) with respect to transfers made in reliance on Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United States;
[(2) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]*
* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.
Exhibit J-1 |
[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] *
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) the transferee is an institution.
or (ii) with respect to transfers made in reliance on Rule 144 under the Securities Act, the Transferor does hereby certify that the Certificates are being transferred in a transaction permitted by Rule 144 under the Securities Act.**
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] |
|||
By: | |||
Name: | |||
Title: |
Dated: ________
cc: Credit Suisse First Boston Mortgage Securities Corp.
** Select (i) or (ii), as applicable.
Exhibit J-2 |
EXHIBIT K
FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Reference is hereby made to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]).
In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.
We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we
Exhibit K-1 |
irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, Trustee, Operating Advisor, Certificate Administrator, Master Servicer, Special Servicer and the Underwriters.
[Insert Name of Transferor] |
|||
By: | |||
Name: | |||
Title: |
Dated: ________
cc: Credit Suisse First Boston Mortgage Securities Corp.
Exhibit K-2 |
EXHIBIT L-1
FORM OF TRANSFEREE AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) AND 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Wells Fargo Bank, National Association, |
as Certificate Registrar |
Sixth Street and Marquette Avenue |
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. |
STATE OF | ) | |
) | ss.: | |
COUNTY OF | ) |
Capitalized terms not defined herein shall have the meaning ascribed to them in the Pooling and Servicing Agreement.
I, [______], under penalties of perjury, declare that, to the best of my knowledge and belief, the following representations are true, correct and complete, and being first sworn, depose and say that:
1. I am a [______] of [______] (the “Purchaser”), on behalf of which I have the authority to make this affidavit.
2. The Purchaser is acquiring Class R Certificates representing [__]% of the residual interest in each of the real estate mortgage investment conduits (each, a “REMIC”) designated as the “Lower-Tier REMIC” and “Upper-Tier REMIC”, respectively, relating to the Certificates for which an election is to be made under Section 860D of the Internal Revenue Code of 1986 (the “Code”).
3. The Purchaser is not a “Disqualified Organization” (as defined below), and that the Purchaser is not acquiring the Class R Certificates for the account of, or as agent or nominee of, or with a view to the transfer of direct or indirect record or beneficial ownership thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified Organization is any of the
Exhibit L-1-1 |
following: (a) the United States, a State or any political subdivision of a State, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (d) rural electric and telephone cooperatives described in Code Section 1381(a)(2) or (e) any other Person so designated by the Certificate Registrar based upon an opinion of counsel to the effect that any transfer to such Person may cause either Trust REMIC to be subject to tax or to fail to qualify as a REMIC at any time that the Certificates are outstanding. The terms “United States”, “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser acknowledges that Section 860E(e) of the Code would impose a substantial tax on the transferor or, in certain circumstances, on an agent for the transferee, with respect to any transfer of any interest in any Class R Certificates to a Disqualified Organization.
5. The Purchaser is a Permitted Transferee. For the purpose hereof, a “Permitted Transferee” is any Person or agent of such Person other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an ownership interest in any Class R Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Disqualified Non-U.S. Tax Person, (d) an entity treated as a U.S. partnership if any of its partners, directly or indirectly (other than through a U.S. corporation) is (or is permitted to be under the partnership agreement) a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to which income from a Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.
6. No purpose of the acquisition of the Class R Certificates is to impede the assessment or collection of tax.
7. The Purchaser will not cause income from the Class R Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other U.S. Tax Person.
8. Check the applicable paragraph:
☐ The present value of the anticipated tax liabilities associated with holding the Class R Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Purchaser to acquire such Class R Certificate;
(ii) the present value of the expected future distributions on such Class R Certificate; and
Exhibit L-1-2 |
(iii) the present value of the anticipated tax savings associated with holding such Class R Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the highest rate currently specified in Section 11(b) of the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate specified in Section 11(b) of the Code if the Purchaser has been subject to the alternative minimum tax under Section 55 of the Code in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Purchaser.
☐ The transfer of the Class R Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an “eligible corporation”, as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Class R Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a Person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the Class R Certificate only to another “eligible corporation”, as defined in Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Treasury Regulations Section 1.860E-1(c)(5); and
(iv) the Purchaser determined the consideration paid to it to acquire the Class R Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.
☐ None of the above.
9. The Purchaser historically has paid its debts as they have come due and intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Class R Certificates as they become due.
10. The Purchaser understands that it may incur tax liabilities with respect to the Class R Certificate in excess of any cash flows generated by such Certificate.
11. The Purchaser is aware that the Certificate Registrar will not register any transfer of a Class R Certificate by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Purchaser expressly agrees that it will not consummate any such transfer to any Person that does not provide an affidavit and agreement in
Exhibit L-1-3 |
substantially the same form as this affidavit and agreement or as to which the Purchaser has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee.
12. The Purchaser represents that it is not acquiring the Class R Certificate as a nominee, trustee or agent for any Person that is not a Permitted Transferee and that for so long as it retains its interest in the Class R Certificate, it will endeavor to remain a Permitted Transferee.
13. The Purchaser consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Class R Certificate will only be owned, directly or indirectly, by a Permitted Transferee.
14. The Purchaser has reviewed the provisions of Section 5.03 of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Class R Certificates; and the Purchaser expressly agrees to be bound by and to comply with such provisions.
15. The Purchaser consents to the designation of the Certificate Administrator as the agent of the Tax Matters Person of the Lower-Tier REMIC and Upper-Tier REMIC pursuant to Section 4.04 of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized officer this ___day of _________, 20__.
By: | |||
Name: | |||
Title: | |||
By: | |||
Name: | |||
Title: |
On this ____ day of _______20__, before me, the undersigned, a Notary Public in and for the State of _______________, duly commissioned and sworn, personally appeared ______________________ and ________________________, known or proved to me to be the same persons who executed the foregoing instrument and to be _____________________________ and ___________________________, respectively, of the Purchaser, and acknowledged to me that they executed the same as their respective free acts and deeds and as the free act and deed of the Purchaser.
Exhibit L-1-4 |
NOTARY PUBLIC in and for the | ||
State of _______________ | ||
[SEAL] | ||
My Commission expires: | ||
Exhibit L-1-5 |
EXHIBIT L-2
FORM OF TRANSFEROR LETTER
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class R |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of Class R Certificates evidencing a [__]% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:
(1) No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.
(2) The Transferor understands that the Transferee has delivered to you a Transfer Affidavit and Agreement in the form attached to the Pooling and Servicing Agreement as Exhibit L-1. The Transferor has no actual knowledge that the Transferee is not a Permitted Transferee (as defined in such Transfer Affidavit and Agreement) and has no actual knowledge or reason to know that the Transferee’s representations in such Transfer Affidavit and Agreement are false.
(3) The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United
Exhibit L-2-1 |
States income taxes associated therewith) unless the Transferor has conducted such an investigation.
Very truly yours, | ||
(Transferor) | ||
By: | ||
Name: | ||
Title: |
Exhibit L-2-2 |
EXHIBIT L-3
FORM OF TRANSFEREE LETTER
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Wells Fargo Bank, National Association,
as Trustee
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services – CSAIL 2015-C3
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
[Transferor]
[______]
[______]
Attention: [______]
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
Ladies and Gentlemen:
The undersigned (the “Purchaser”) proposes to purchase [$_____________ initial Certificate Principal Amount] [_____% Percentage Interest] of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [_], CUSIP No. [____] (the “Certificates”), issued pursuant to that certain Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents and warrants to you that with respect to the Class E, Class F, Class NR, Class R and Class Z Certificates, the Purchaser is
Exhibit L-3-1 |
not and will not be (i) a retirement plan or other employee benefit plan or arrangement, including an individual retirement account or a Keogh plan, which is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law (“Similar Law”) that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (ii) a collective investment fund, the assets of which are considered Plan assets under the U.S. Department of Labor Reg. Section 2510.3-101, as modified by Section 3(42) of ERISA or for purposes of Similar Law, an insurance company using assets of separate accounts or general accounts which include assets of Plans (or which are deemed pursuant to ERISA or Similar Law to include assets of Plans) or other Person acting on behalf of any such Plan or using the assets of any such Plan, other than (with respect to any transfer of a Class E, Class F or Class NR Certificate) an insurance company using assets of its general account under circumstances whereby such purchase and the subsequent holding of Certificate(s) by such insurance company would be exempt from the prohibited transaction provisions of ERISA and Section 4975 of the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 or, as applicable, would not constitute a non-exempt violation of Similar Law.
Exhibit L-3-2 |
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____, ____.
Very truly yours, | ||
[INSERT NAME OF PURCHASER] | ||
By: | ||
Name: | ||
Title: |
Exhibit L-3-3 |
EXHIBIT L-4
FORM OF INVESTMENT REPRESENTATION LETTER
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3, Class [__] |
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.03 of the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), entered into by Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee, on behalf of the holders of Commercial Mortgage Pass Through Certificates, Series 2015-C3 (the “Certificates”) in connection with the transfer by [ ] (the “Seller”) to the undersigned (the “Purchaser”) of $_____ aggregate [Certificate Principal Balance][Notional Amount] of Class [ ] Certificates [representing a [ ]% Percentage Interest in the related Class], in certificated fully registered form (such registered interest, the “Certificate”). Terms used but not defined herein shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser is an institutional “accredited investor” (an “Institutional Accredited Investor”), i.e., an entity meeting the requirements of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners come within Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Certificate, and the Purchaser and any accounts for which the Purchaser is acting are each able to bear the economic risk of our or its investment. The Purchaser is acquiring the Certificate for its own account or for one or more accounts (each
Exhibit L-4-1 |
of which is an Institutional Accredited Investor), as to each of which the Purchaser exercises sole investment discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] 1. The Purchaser is a “qualified institutional buyer” within the meaning of Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Purchaser is aware that the transfer is being made in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the information required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser’s intention is to acquire the Certificate (a) for investment for the Purchaser’s own account or (b) for resale to (i) “qualified institutional buyers” in transactions complying with Rule 144A, or (ii) Institutional Accredited Investors under the Securities Act, pursuant to any other exemption from the registration requirements of the Securities Act, subject in the case of this clause (ii) to (a) the receipt by the Certificate Registrar of a letter substantially in the form hereof, (b) the receipt by the Certificate Registrar of an opinion of counsel acceptable to the Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act, (c) the receipt by the Certificate Registrar of such other evidence acceptable to the Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act and other applicable laws (including applicable state and foreign securities laws), and (d) a written undertaking to reimburse the Trust for any costs incurred by it in connection with the proposed transfer. It understands that the Certificate (and any subsequent Non-Book Entry Certificate) has not been registered under the Securities Act, by reason of a specified exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the Purchaser’s investment intent (or intent to resell to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any Certificate issued on transfer or exchange thereof) has not been registered or qualified under the Securities Act or the securities laws of any State or any other jurisdiction, and that the Certificate cannot be reoffered, resold, pledged or otherwise transferred unless it is registered or qualified thereunder or unless an exemption from such registration or qualification is available.
4. The Purchaser has reviewed the applicable Offering Circular dated May 8, 2015, relating to the Certificates (the “Offering Circular”) and the agreements and other materials referred to therein and has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by the Offering Circular.
5. The Purchaser hereby undertakes to be bound by the terms and conditions of the Pooling and Servicing Agreement in its capacity as an owner of a Non-Book Entry Certificate or Certificates, as the case may be (each, a “Certificateholder”), in all respects as if it were a signatory thereto. This undertaking is made for the benefit of the Trust, the Certificate Registrar and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the Certificate, except in compliance with Section 5.03 of the Pooling and Servicing Agreement.
7. Check one of the following:
Exhibit L-4-2 |
☐ The Purchaser is a “U.S. Tax Person” and it has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).
☐ The Purchaser is not a “U.S. Tax Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Administrator (or its agent) with respect to Distributions to be made on the Certificate(s). The Purchaser has attached hereto (i) a duly executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or successor form), which identifies such Purchaser as the beneficial owner of the Certificate(s) and states that such Purchaser is not a U.S. Person, (ii) two duly executed copies of IRS Form W-8IMY (and all appropriate attachment) or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which identify such Purchaser as the beneficial owner of the Certificate(s) and state that interest and original issue discount on the Certificate(s) is, or is expected to be, effectively connected with a U.S. trade or business. The Purchaser agrees to provide to the Certificate Administrator updated IRS Forms W-8BEN, IRS Forms W-8BEN-E, IRS Forms W-8IMY or IRS Forms W-8ECI, as the case may be, any applicable successor IRS forms, or such other certifications as the Certificate Administrator may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Administrator.
For purposes of this paragraph 7, “U.S. Tax Person” means a citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury Regulations), or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Tax Persons).
Please make all payments due on the Certificates:**
(a) by wire transfer to the following account at a bank or entity in New York, New York, having appropriate facilities therefor:
Account number: _________________________________
Institution: ______________________________________
(b) by mailing a check or draft to the following address:
______________________________________________
______________________________________________
** Please select (a) or (b).
Exhibit L-4-3 |
______________________________________________
Very truly yours, | ||
[INSERT NAME OF PURCHASER] | ||
By: | ||
Name: | ||
Title: |
Dated: ________________, 20__
Exhibit L-4-4 |
EXHIBIT M-1
FORM OF INVESTOR CERTIFICATION FOR OBTAINING INFORMATION AND NOTICES
[Date]
[Wells Fargo Bank, National Association,
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: CMBS – CSAIL 2015-C3]
[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
MAC D1086
550 South Tryon Street, 14th Floor
Charlotte, North Carolina 28202
Attention: CSAIL 2015-C3 Asset Manager]
Attention: | Corporate Trust Services (CMBS) - CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, and Wells Fargo Bank, National Association, as Trustee (the “Trustee”), with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [[certificateholder][beneficial owner][prospective purchaser] of the Class ___ Certificates][Companion Loan Holder (as defined in the Agreement)][the Controlling Class Representative]
2. The undersigned has received a copy of the Prospectus Supplement and the Prospectus.1
3. The undersigned is not a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of any Mortgagor or Manager of a Mortgaged Property, or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee, advisor of or investor in or of any of the foregoing.
1 Only required for a certificateholder, a beneficial owner or a prospective purchaser.
Exhibit M-1-1 |
4. The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the [Master Servicer’s website][Certificate Administrator’s Website] and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Agreement.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Master Servicer or Certificate Administrator, as applicable, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part, unless required to do so by law.
The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Operating Advisor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. The undersigned agrees that each time it accesses the [Master Servicer’s website][Certificate Administrator’s Website], the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
7. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.
[Certificateholder][Beneficial Owner][Prospective Purchaser][Companion Loan Holder] | ||
By: |
Name: |
Title: |
Company: |
Exhibit M-1-2 |
Phone: |
Exhibit M-1-3 |
EXHIBIT M-2
FORM OF INVESTOR CERTIFICATION FOR EXERCISING VOTING RIGHTS
[Date]
Wells Fargo Bank, National Association,
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: CMBS – CSAIL 2015-C3
Attention: | Corporate Trust Services (CMBS) – CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
In accordance with the requirements for the exercise of Voting Rights pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, and Wells Fargo Bank, National Association, as Trustee (the “Trustee”), with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a certificateholder of the Class ___ Certificates.
2. The undersigned has received a copy of the Prospectus Supplement and the Prospectus.
3. The undersigned is not a Mortgagor, a Manager of a Mortgaged Property, an Affiliate of any Mortgagor or Manager of a Mortgaged Property or an agent of any Mortgagor.
4. The undersigned intends to exercise Voting Rights under the Agreement and certifies that (please check one of the following):
___ | The undersigned is the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor. |
___ | The undersigned is an Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor and hereby certifies to the existence of an Affiliate Ethical Wall between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor, as applicable. |
___ | The undersigned is not the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or an Affiliate of any of the foregoing. |
Exhibit M-2-1 |
5. The undersigned shall be fully liable for any breach of this agreement by itself or any of its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) and shall indemnify the Depositor, the Operating Advisor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.
[Certificateholder] | ||
By: |
Name: |
Title: |
Company: |
Phone: |
Exhibit M-2-2 |
EXHIBIT M-3
FORM OF ONLINE VENDOR CERTIFICATION
This Certification has been prepared for provision of information to the market data providers listed in Paragraph 1 below pursuant to the direction of the Depositor. If you represent a Vendor Provider not listed herein and would like access to the information, please contact CTSLink at 866-846-4526, or at ctslink.customerservice@wellsfargo.com.
In connection with the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. The undersigned is an employee or agent of Bloomberg Financial Markets, L.P., Trepp, LLC, Intex Solutions, Inc. or BlackRock Financial Management Inc., a market data provider that has been given access to the Distribution Date Statements, CREFC reports and supplemental notices on www.ctslink.com (“CTSLink”) by request of the Depositor.
2. The undersigned agrees that each time it accesses CTSLink, the undersigned is deemed to have recertified that the representation above remains true and correct.
3. The undersigned acknowledges and agrees that the provision to it of information and/or reports on CTSLink is for its own use only, and agrees that it will not disseminate or otherwise make such information available to any other person without the written consent of the Depositor, and any confidentiality agreement applicable to the undersigned with respect to information obtained from the Rule 17g-5 Information Provider’s Website shall also be applicable to information obtained from CTSLink.
4. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement, dated as of August 1, 2015, by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.
[ ] | ||
By: |
Exhibit M-3-1 |
Name: |
Title: |
Company: |
Phone: |
Exhibit M-3-2 |
EXHIBIT M-4
FORM OF CONFIDENTIALITY AGREEMENT
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
Wells Fargo Bank, National Association,
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: CMBS – CSAIL 2015-C3
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President – Division Head
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Liat Heller
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Jeff Krasnoff
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Niral Shah
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Adam Singer
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
Ladies and Gentlemen:
In connection with the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Certificates”), we acknowledge that we will be
Exhibit M-4-1 |
furnished by Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer (and may have been previously furnished) with certain information (the “Information”). For the purposes of this letter agreement (this “Agreement”), “Representative” of a Person refers to such Person’s directors, officers, employees, and agents; and “Person” refers to any individual, group or entity.
In connection with and in consideration of our being provided with Information, we hereby acknowledge and agree that we are requesting and will use the Information solely for purposes of making investment decisions and/or exercising the rights of the Controlling Class Representative with respect to the above-referenced Certificates and the related Mortgage Loans and will not disclose such Information to any Person or entity other than (i) our Representatives, (ii) our auditors and regulators and (iii) any Person or entity contemplating the purchase of any Certificate held by the undersigned or of an interest therein (or such outside Persons as are assisting it in making an evaluation in connection with purchasing the related Certificates (but only if such Persons confirm in writing such contemplation of a prospective ownership interest and agree in writing to keep such Information confidential)), (iv) our accountants and attorneys, and (v) such governmental or banking authorities or agencies to which the undersigned is subject; and such Information will not, without the prior written consent of the Master Servicer or Special Servicer, as applicable, be otherwise disclosed by the undersigned or by its Representatives in any manner whatsoever, in whole or in part, unless required to do so by law.
The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Operating Advisor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
This Agreement shall not apply to any of the Information which: (i) is or becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by us or any of our Representatives; (ii) becomes lawfully available to us on a non-confidential basis from a source other than you or one of your Representatives, which source is not bound by a contractual or other obligation of confidentiality to any Person; or (iii) was lawfully known to us on a non-confidential basis prior to its disclosure to us by you.
Capitalized terms used but not defined herein shall have the meanings assigned thereto in that certain Pooling and Servicing Agreement, dated as of August 1, 2015, by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer.
This Agreement, when signed by us, will constitute our agreement with respect to the subject matter contained herein.
Exhibit M-4-2 |
Very truly yours, | ||
[NAME OF ENTITY] | ||
By:. |
Name: |
Title: |
Company: |
Phone: |
cc: Credit Suisse First Boston Mortgage Securities Corp.
Trustee
Exhibit M-4-3 |
EXHIBIT M-5
FORM OF NRSRO CERTIFICATION
[Date]
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: CSAIL 2015-C3 Mortgage Trust
Re: | CSAIL 2015-C3 Mortgage Trust Commercial Mortgage Pass-Through Certificates |
In accordance with the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Agreement”), entered into and executed in connection with the above-referenced transaction, with respect to the certificates issued thereunder (the “Certificates”), the undersigned hereby certifies as follows:
1. (a) The undersigned is a Rating Agency; or
(b) The undersigned is a nationally recognized statistical rating organization and either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Agreement to certain information (the “Information”) on such 17g-5 website pursuant to the provisions of the Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y), if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement attached hereto as Annex A which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date
2. The undersigned either (a) has not accessed information pursuant to Rule 17g–5(a)(3) ten (10) or more times during the most recently ended calendar year, or (b) has determined and maintained credit ratings for at least 10% of the issued securities and money market instruments for which it accessed information pursuant to Rule 17g–5(a)(3)(iii) in the calendar year prior to the year covered by the SEC Certification, if it accessed such information for 10 or more issued securities or money market instruments.
3. The undersigned agrees that each time it accesses the 17g-5 Information Provider’s Website, it is deemed to have recertified that the representations herein contained remain true and correct.
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.
Exhibit M-5-1 |
Very truly yours, | ||
[NRSRO Name] |
By: | |||
Name: | |||
Title: | |||
Phone: | |||
Email: |
Exhibit M-5-2 |
ANNEX A
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with the [Depositor] together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the certificates (the “Certificates”) pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Wells Fargo Bank, National Association, as 17g-5 Information Provider under the Pooling and Servicing Agreement, including the [section of the 17g-5 Information Provider’s website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Pooling and Servicing Agreement]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.
Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y) any of the terms, conditions or other facts with respect to the transactions contemplated by the Pooling and Servicing Agreement, including the status thereof; provided, however, that the term Confidential Information shall not include information which:
was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;
was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or is independently developed by the NRSRO without reference to any Confidential Information.
Information to Be Held in Confidence. You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).
You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.
You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:
disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the
Exhibit M-5-3 |
reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;
solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5),post the Confidential Information to the NRSRO’s password protected website; and
use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.
Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, however, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.
Obligation to Return Evaluation Material. Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.
Violations of this Confidentiality Agreement. The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.
You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.
Exhibit M-5-4 |
You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.
Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.
Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.
Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.
Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, however, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.
Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:
[_____________]
Exhibit M-5-5 |
EXHIBIT N
CUSTODIAN CERTIFICATION
[DATE]
[All Parties to Pooling and Servicing Agreement]
[Applicable Mortgage Loan Seller]
[Each Underwriter]
Re: | Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) relating to CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02(b) of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan, and subject to the exceptions noted in the schedule of exceptions attached hereto, (i) all documents specified in clauses (1), (2), (3), (4) (other than with respect to a Non-Serviced Mortgage Loan), (5), (7), (15) and (20) (for any Mortgage Loan that is part of a Whole Loan) of the definition of “Mortgage File” are in its possession or the related Mortgage Loan Seller has otherwise satisfied the delivery requirements in accordance with the related Loan Purchase Agreement; (ii) the recordation/filing contemplated by Section 2.01(c) of the Pooling and Servicing Agreement has been completed (based solely on receipt by the undersigned of the particular recorded/filed documents); (iii) all documents received by the undersigned or the Custodian with respect to such Mortgage Loan have been reviewed by the undersigned or the Custodian on behalf of the undersigned and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Mortgagor), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a) and Section 2.02(b) of the Pooling and Servicing Agreement and only as to the foregoing documents (together with any Loan Agreement that has been delivered by the related Mortgage Loan Seller), the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv) and (v)(B) of the definition of “Mortgage Loan Schedule” accurately reflects the information set forth in the Mortgage File.
The undersigned makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any such documents contained in each Mortgage File or any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the collectability, insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein and not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement. This Certificate is subject in all respects to the terms of the Pooling and Servicing Agreement.
Exhibit N-1 |
Wells Fargo Bank, National Association, as Custodian | ||
By: | ||
Name: | ||
Title: |
Exhibit N-2 |
SCHEDULE OF EXCEPTIONS
[None]
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria” applicable to such party, as such criteria may be updated or limited by the Commission or its staff (including, without limitation, not requiring the delivery of certain of the items set forth on this Exhibit based on interpretive guidance provided by the Commission or its staff relating to Item 1122 of Regulation AB). For the avoidance of doubt, for purposes of this Exhibit O, other than with respect to Item 1122(d)(2)(iii), references to Master Servicer below shall include any Sub-Servicer engaged by a Master Servicer or Special Servicer.
Servicing Criteria | applicable Servicing Criteria | |
Reference | Criteria | |
General Servicing Considerations | ||
1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | Master Servicer Special Servicer |
1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. |
Master Servicer Certificate Administrator |
1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained. | N/A |
1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | Master Servicer Special Servicer |
1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.1 |
Master Servicer Certificate |
1 The servicing criteria in Item 1122(d)(1)(v) of Regulation AB shall be applicable on and after November 23, 2015.
Exhibit N-3 |
Administrator | ||
Cash Collection and Administration | ||
1122(d)(2)(i) | Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. |
Master Servicer Certificate Administrator |
1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | Certificate Administrator |
1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | Master Servicer |
1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | Master Servicer Special Servicer Certificate Administrator |
1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Exchange Act. | Master Servicer Special Servicer Certificate Administrator |
1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | Master Servicer Special Servicer Certificate Administrator |
1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in | Master Servicer Special Servicer Certificate Administrator |
Exhibit O-2 |
the transaction agreements. | ||
Investor Remittances and Reporting | ||
1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer. | Certificate Administrator Operating Advisor (with respect to (A) and (B)) |
1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | Certificate Administrator |
1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Reporting Servicer’s investor records, or such other number of days specified in the transaction agreements. | Certificate Administrator |
1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | Certificate Administrator |
Pool Asset Administration | ||
1122(d)(4)(i) | Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents. | Master Servicer Special Servicer Custodian |
1122(d)(4)(ii) | Mortgage loan and related documents are safeguarded as required by the transaction agreements | Custodian |
1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | Master Servicer Special Servicer Certificate Administrator |
Exhibit O-3 |
1122(d)(4)(iv) | Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Master Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents. | Master Servicer |
1122(d)(4)(v) | The Master Servicer’s records regarding the mortgage loans agree with the Master Servicer’s records with respect to an obligor’s unpaid principal balance. | Master Servicer |
1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | Master Servicer Special Servicer |
1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | Special Servicer Operating Advisor |
1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | Master Servicer Special Servicer |
1122(d)(4)(ix) | Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents. | Master Servicer |
1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 | Master Servicer |
Exhibit O-4 |
calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements. | ||
1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | Master Servicer |
1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | Master Servicer |
1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | Master Servicer |
1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | Master Servicer |
1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | N/A |
Exhibit O-5 |
EXHIBIT P
SUPPLEMENTAL SERVICER SCHEDULE
Exhibit P-1 |
Loan Number | Mortgage Loan Seller | Property Name | Borrower Name | General Property Type | Original Balance ($) | Origination Date | Original Amortization Term (Mos.) | Remaining Amortization Term (Mos.) | Carve-out Guarantor | Letter of Credit | Upfront RE Tax Reserve ($) | Ongoing RE Tax Reserve ($) | ||||||||||||
1 | UBSRES | Charles River Plaza North | DMP CR Plaza, LLC | Office | 130,000,000 | 7/7/2015 | 315 | 315 | Jonathan G. Davis; Paul R. Marcus | No | 284,052 | 270,526 | ||||||||||||
2 | Column | Starwood Capital Extended Stay Portfolio | SCG LH Anderson, L.P.; SCG LH Auburn, L.P.; SCG LH Austin, L.P.; SCG LH Baton Rouge, L.P.; SCG LH Birmingham, L.P.; SCG LH Bowling Green, L.P.; SCG LH Charlotte Matthews, L.P.; SCG LH Chesapeake, L.P.; SCG LH Clarksville, L.P.; SCG LH Colorado Springs, L.P.; SCG LH Columbus, L.P.; SCG LH Corpus Christi, L.P.; SCG LH Cumming, L.P.; SCG LH Dallas Garland, L.P.; SCG LH Decatur, L.P.; SCG LH Denver Aurora, L.P.; SCG LH DFW Airport Lewisville, L.P.; SCG LH Disney Orlando, L.P.; SCG LH Fort Myers, L.P.; SCG LH Greensboro Airport, L.P.; SCG LH Greensboro, L.P.; SCG LH Greenville, L.P.; SCG LH Gulfport Airport, L.P.; SCG LH Gwinnett, L.P.; SCG LH Hattiesburg, L.P.; SCG LH High Point, L.P.; SCG LH Houston 290 Galleria, L.P.; SCG LH Houston Hobby Airport, L.P.; SCG LH Houston IAH Airport, L.P.; SCG LH Houston Westchase, L.P.; SCG LH Jacksonville, L.P.; SCG LH Kannapolis, L.P.; SCG LH Kennesaw, L.P.; SCG LH Marietta East Lake, L.P.; SCG LH Marietta Town Center Mall, L.P.; SCG LH Murfreesboro, L.P.; SCG LH Nashville Madison, L.P.; SCG LH New Orleans Harvey, L.P.; SCG LH New Orleans West Metairie, L.P.; SCG LH Newport News, L.P.; SCG LH Orlando UCF, L.P.; SCG LH Plano, L.P.; SCG LH Prattsville, L.P.; SCG LH Raleigh, L.P.; SCG LH Smyrna, L.P.; SCG LH Snellville, L.P.; SCG LH Stockbridge, L.P.; SCG LH Sugarland Stafford, L.P.; SCG LH Suwanee, L.P.; SCG LH Tuscaloosa, L.P. | Hotel | 105,000,000 | 6/11/2015 | 360 | 360 | SOF-IX U.S. Holdings, L.P. | No | 0 | Springing | ||||||||||||
2.01 | Column | Crestwood Suites Denver - Aurora | Hotel | 4,627,237 | ||||||||||||||||||||
2.02 | Column | Sun Suites New Orleans (Metairie) | Hotel | 4,314,115 | ||||||||||||||||||||
2.03 | Column | Sun Suites New Orleans (Harvey) | Hotel | 3,896,620 | ||||||||||||||||||||
2.04 | Column | Sun Suites Hobby (Clearlake) | Hotel | 3,757,455 | ||||||||||||||||||||
2.05 | Column | Sun Suites Plano | Hotel | 3,618,290 | ||||||||||||||||||||
2.06 | Column | Sun Suites Westchase | Hotel | 3,583,499 | ||||||||||||||||||||
2.07 | Column | Crestwood Suites Marietta Roswell Road | Hotel | 3,096,421 | ||||||||||||||||||||
2.08 | Column | Sun Suites Sugar Land (Stafford) | Hotel | 2,922,465 | ||||||||||||||||||||
2.09 | Column | Sun Suites Raleigh | Hotel | 2,783,300 | ||||||||||||||||||||
2.10 | Column | Sun Suites Intercontinental Greenspoint | Hotel | 2,783,300 | ||||||||||||||||||||
2.11 | Column | Crestwood Suites Nashville Madison | Hotel | 2,748,509 | ||||||||||||||||||||
2.12 | Column | Sun Suites Cumming | Hotel | 2,748,509 | ||||||||||||||||||||
2.13 | Column | Crestwood Suites Murfreesboro | Hotel | 2,574,553 | ||||||||||||||||||||
2.14 | Column | Sun Suites Smyrna | Hotel | 2,470,179 | ||||||||||||||||||||
2.15 | Column | Sun Suites Dallas - Garland | Hotel | 2,470,179 | ||||||||||||||||||||
2.16 | Column | Sun Suites DFW Airport - Lewisville | Hotel | 2,470,179 | ||||||||||||||||||||
2.17 | Column | Sun Suites Charlotte - Matthews | Hotel | 2,400,596 | ||||||||||||||||||||
2.18 | Column | Crestwood Suites Disney Orlando | Hotel | 2,365,805 | ||||||||||||||||||||
2.19 | Column | Crestwood Suites Orlando UCF | Hotel | 2,365,805 | ||||||||||||||||||||
2.20 | Column | Crestwood Suites Snellville | Hotel | 2,331,014 | ||||||||||||||||||||
2.21 | Column | Sun Suites Suwanee | Hotel | 2,296,223 | ||||||||||||||||||||
2.22 | Column | Home Towne Suites Kannapolis | Hotel | 2,296,223 | ||||||||||||||||||||
2.23 | Column | Sun Suites Corpus Christi | Hotel | 2,052,684 | ||||||||||||||||||||
2.24 | Column | Home Towne Suites Tuscaloosa | Hotel | 2,052,684 | ||||||||||||||||||||
2.25 | Column | Sun Suites Jacksonville | Hotel | 2,017,893 | ||||||||||||||||||||
2.26 | Column | Sun Suites Chesapeake | Hotel | 2,017,893 | ||||||||||||||||||||
2.27 | Column | Crestwood Suites Fort Myers | Hotel | 1,983,101 | ||||||||||||||||||||
2.28 | Column | Crestwood Suites Greensboro Airport | Hotel | 1,983,101 | ||||||||||||||||||||
2.29 | Column | Crestwood Suites Austin | Hotel | 1,913,519 | ||||||||||||||||||||
2.30 | Column | Sun Suites Gwinnett | Hotel | 1,913,519 | ||||||||||||||||||||
2.31 | Column | Crestwood Suites Marietta - Town Center Mall | Hotel | 1,843,936 | ||||||||||||||||||||
2.32 | Column | Crestwood Suites Baton Rouge | Hotel | 1,774,354 | ||||||||||||||||||||
2.33 | Column | Home Towne Suites Columbus | Hotel | 1,704,771 | ||||||||||||||||||||
2.34 | Column | Crestwood Suites NW Houston | Hotel | 1,669,980 | ||||||||||||||||||||
2.35 | Column | Home Towne Suites Auburn | Hotel | 1,669,980 | ||||||||||||||||||||
2.36 | Column | Sun Suites Stockbridge | Hotel | 1,565,606 | ||||||||||||||||||||
2.37 | Column | Home Towne Suites Anderson | Hotel | 1,461,233 | ||||||||||||||||||||
2.38 | Column | Crestwood Suites Colorado Springs | Hotel | 1,426,441 | ||||||||||||||||||||
2.39 | Column | Home Towne Suites Prattville | Hotel | 1,356,859 | ||||||||||||||||||||
2.40 | Column | Crestwood Suites High Point | Hotel | 1,217,694 | ||||||||||||||||||||
2.41 | Column | Sun Suites Birmingham | Hotel | 1,182,903 | ||||||||||||||||||||
2.42 | Column | Sun Suites Kennesaw Town Center | Hotel | 1,182,903 | ||||||||||||||||||||
2.43 | Column | Sun Suites Greensboro | Hotel | 1,148,111 | ||||||||||||||||||||
2.44 | Column | Home Towne Suites Greenville | Hotel | 939,364 | ||||||||||||||||||||
2.45 | Column | Sun Suites Hattiesburg | Hotel | 800,199 | ||||||||||||||||||||
2.46 | Column | Home Towne Suites Decatur | Hotel | 730,616 | ||||||||||||||||||||
2.47 | Column | Home Towne Suites Bowling Green | Hotel | 730,616 | ||||||||||||||||||||
2.48 | Column | Sun Suites Gulfport Airport | Hotel | 626,243 | ||||||||||||||||||||
2.49 | Column | Crestwood Suites Newport News | Hotel | 556,660 | ||||||||||||||||||||
2.50 | Column | Home Towne Suites Clarksville | Hotel | 556,660 | ||||||||||||||||||||
3 | UBSRES | The Mall of New Hampshire | MNH Mall L.L.C.; Mayflower New Hampshire Best Buy, L.P. | Retail | 100,000,000 | 6/25/2015 | 0 | 0 | Mayflower Realty LLC | No | 0 | Springing | ||||||||||||
4 | Column | Westfield Wheaton | Wheaton Plaza Regional Shopping Center LLC | Retail | 97,000,000 | 2/3/2015 | 0 | 0 | Westfield America, Inc., Westfield America Limited Partnership | No | 0 | Springing | ||||||||||||
5 | Column | Arizona Grand Resort & Spa | Arizona Grand Resort, LLC | Hotel | 50,000,000 | 6/9/2015 | 360 | 360 | Southwest Recourse III, LLC ; Grossman Company Properties, Inc.; Southwest Associates Investments, LLC | No | 695,361 | 163,614 | ||||||||||||
6 | Column | Soho-Tribeca Grand Hotel Portfolio | Soho Grand Hotel, Inc. & Tribeca Grand Hotel, Inc. | Hotel | 50,000,000 | 11/4/2014 | 0 | 0 | Hartz Financial Corp., Hartz Financial II Corp., Hartz Mountain Industries-NJ, L.L.C. | No | 2,732,258 | 546,452 | ||||||||||||
6.01 | Column | Soho Grand Hotel | Hotel | 36,889,460 | ||||||||||||||||||||
6.02 | Column | Tribeca Grand Hotel | Hotel | 13,110,540 | ||||||||||||||||||||
7 | Column | Westfield Trumbull | Trumbull Shopping Center #2 LLC | Retail | 41,162,162 | 2/3/2015 | 0 | 0 | Westfield America, Inc., Westfield America Limited Partnership | No | 0 | Springing | ||||||||||||
8 | BNYM | Venue Emerald Coast | Henderson Beach Partners, LLC | Multifamily | 30,000,000 | 5/29/2015 | 360 | 360 | Ryan L. Hanks | No | 148,860 | 29,772 | ||||||||||||
9 | BNYM | 16542 & 16550 Ventura | Diamond Capital Group, LP | Office | 27,500,000 | 7/15/2015 | 360 | 360 | Albert Taban | No | 106,962 | 25,531 |
Loan Number | Mortgage Loan Seller | Property Name | Borrower Name | General Property Type | Original Balance ($) | Origination Date | Original Amortization Term (Mos.) | Remaining Amortization Term (Mos.) | Carve-out Guarantor | Letter of Credit | Upfront RE Tax Reserve ($) | Ongoing RE Tax Reserve ($) | ||||||||||||
10 | BSP | 21 Astor Place | 21 Astor Partners LLC; 21 Astor Partners II LLC; 21 Astor Partners III LLC | Retail | 26,650,000 | 7/10/2015 | 0 | 0 | Isaac A. Gindi; Edward Gindi | No | 137,416 | 45,805 | ||||||||||||
11 | Column | Hendry Multifamily Portfolio | Summer Lake Villas LLC | Multifamily | 26,000,000 | 6/16/2015 | 360 | 360 | Adam Hendry | No | 103,404 | 25,851 | ||||||||||||
11.01 | Column | Summer Lake Villas | Multifamily | 14,783,265 | ||||||||||||||||||||
11.02 | Column | Spinnaker Landing | Multifamily | 7,525,620 | ||||||||||||||||||||
11.03 | Column | New River | Multifamily | 3,691,115 | ||||||||||||||||||||
12 | The Bancorp Bank | Hampton Inn - Point Loma | Greenwood Holdings, LLC | Hotel | 25,300,000 | 5/1/2015 | 360 | 357 | Imad T. Mansour | No | 0 | 24,950 | ||||||||||||
13 | BNYM | Hilton Arden West | SAC Hospitality LLC | Hotel | 23,700,000 | 6/16/2015 | 360 | 360 | R-Roof Assets, LLC | No | 86,014 | 28,671 | ||||||||||||
14 | BSP | 2500 South Damen Avenue | Damen Freezer Owners, LLC; Damen Cold Storage Owners, LLC; Damen Warehouse Owners, LLC | Industrial | 23,100,000 | 5/28/2015 | 360 | 360 | Arnold Gumowitz | No | 0 | Springing | ||||||||||||
15 | BNYM | FL OH Multifamily Portfolio | Sugartree Apartments, LLC; Empirian Sugartree II LLC; Willowood Apartments of Grove City, LLC; Willowood Apartments of Grove City, II, LLC; Sandpiper Apartments II, LLC; Parkway North Apartments, LLC; Dartmouth Place Apartments of Kent, LLC; Cardinal E.P., LLC; Meldon Place Apartments of Toledo, LLC | Multifamily | 21,040,000 | 3/3/2015 | 360 | 360 | Arbor Realty SR, Inc. | No | 109,998 | 28,569 | ||||||||||||
15.01 | BNYM | Dartmouth Place | Multifamily | 5,512,000 | ||||||||||||||||||||
15.02 | BNYM | Sugartree Apartments | Multifamily | 4,472,000 | ||||||||||||||||||||
15.03 | BNYM | Meldon Place | Multifamily | 3,712,000 | ||||||||||||||||||||
15.04 | BNYM | Willowood Apartments | Multifamily | 2,848,000 | ||||||||||||||||||||
15.05 | BNYM | Parkway North Apartments | Multifamily | 2,456,000 | ||||||||||||||||||||
15.06 | BNYM | Sandpiper Apartments | Multifamily | 2,040,000 | ||||||||||||||||||||
16 | UBSRES | The Crescent Building | Privet Birmingham Crescent, LLC | Office | 20,500,000 | 7/8/2015 | 360 | 360 | Flinn Realty LLC; Privet Birmingham Crescent Holdings, LLC | No | 252,640 | 29,377 | ||||||||||||
17 | UBSRES | Holiday Inn Express - Mill Valley | GRM HIMV, LLC; Goodman HIMV, LLC; Terrapin Mill Valley Investments, LLC | Hotel | 18,750,000 | 7/2/2015 | 360 | 359 | Andre Ferrigno; Alison Goodwin; Anthony Jon Sherman; Anthony Jon Sherman and Rachel A. Sherman, as Trustees of the Sherman Family Trust, Dated April 22, 2003 | No | 83,770 | 18,211 | ||||||||||||
18 | BNYM | 7101 Sunset Blvd | 7101 Sunset, LLC | Retail | 18,500,000 | 7/1/2015 | 360 | 360 | Daryoush Dayan | No | 54,153 | 10,831 | ||||||||||||
19 | BNYM | 16260 Ventura | Peppertree Capital, LP | Office | 18,200,000 | 7/15/2015 | 360 | 360 | David Taban | No | 36,349 | 9,087 | ||||||||||||
20 | BNYM | Syracuse Office Portfolio | 250 South Clinton LLC | Office | 18,075,000 | 7/14/2015 | 360 | 360 | Sid Borenstein, Shimmie Horn | No | 228,314 | 60,553 | ||||||||||||
20.01 | BNYM | 250 Clinton | Office | 14,137,500 | ||||||||||||||||||||
20.02 | BNYM | 507 Plum | Office | 3,937,500 | ||||||||||||||||||||
21 | Column | Ranch at Guadalupe | Ranch on the River, LP | Multifamily | 17,788,000 | 6/11/2015 | 360 | 360 | Lahav Gabay | No | 193,375 | 27,625 | ||||||||||||
22 | UBSRES | WPC Department Store Portfolio | BT (Multi) LLC | Retail | 17,170,000 | 6/26/2015 | 360 | 360 | Corporate Property Associates 17 - Global Incorporated | No | 0 | Springing | ||||||||||||
22.01 | UBSRES | Boston Store - Brookfield Square Mall | Retail | 4,086,268 | ||||||||||||||||||||
22.02 | UBSRES | Boston Store - Mayfair Mall | Retail | 3,779,319 | ||||||||||||||||||||
22.03 | UBSRES | Boston Store - Southridge Mall | Retail | 3,453,184 | ||||||||||||||||||||
22.04 | UBSRES | Younkers - Bay Park Square Mall | Retail | 2,436,413 | ||||||||||||||||||||
22.05 | UBSRES | Carson Pirie Scott - Louis Joliet Mall | Retail | 1,841,698 | ||||||||||||||||||||
22.06 | UBSRES | Herberger’s - West Acres Mall | Retail | 1,573,117 | ||||||||||||||||||||
23 | UBSRES | FedEx Ground Shafter | Scannell Properties #183, LLC | Industrial | 17,000,000 | 7/1/2015 | 360 | 359 | Robert J. Scannell; Robert J. Scannell, as Trustee of the Robert J. Scannell Revocable Trust | No | 0 | Springing | ||||||||||||
24 | Column | Sterling & Milagro Apartments | 2015 Houston Sterling Point, LLC | Multifamily | 17,000,000 | 4/17/2015 | 360 | 357 | Rene O. Campos | No | 242,668 | 60,667 | ||||||||||||
25 | BSP | 1315 Lincoln Boulevard | 1315 Lincoln Owner LLC | Office | 16,600,000 | 4/13/2015 | 0 | 0 | Larry Botel | No | 38,289 | 12,763 | ||||||||||||
26 | UBSRES | Cape May Hotels | Congress Hall Limited Liability Company; Perry Street Associates, LLC | Hotel | 16,000,000 | 7/17/2015 | 360 | 360 | Curtis Bashaw; Craig Wood | No | 120,937 | 21,596 | ||||||||||||
26.01 | UBSRES | Congress Hall | Hotel | 13,665,236 | ||||||||||||||||||||
26.02 | UBSRES | The Star | Hotel | 2,334,764 | ||||||||||||||||||||
27 | Column | PG&E Building - Fresno | PGE Starpoint, LLC; PGE 1, LLC; PGE 2, LLC; PGE 3, LLC; PGE 4, LLC; PGE 5, LLC; PGE 6, LLC; PGE 7, LLC; PGE 8, LLC; PGE 9, LLC; PGE 10, LLC; PGE 11, LLC; PGE 12, LLC; PGE 13, LLC; PGE 14, LLC; PGE 15, LLC; PGE 16, LLC; PGE 17, LLC; PGE 18, LLC; PGE 19, LLC; PGE 20, LLC; PGE 21, LLC; PGE 26, LLC | Office | 14,300,000 | 7/15/2015 | 300 | 300 | Dwyer New York Trust, Established July 17, 2001, Gery Grey, Perry Grey, Debra Rapaport, Steven C. Powell, Deborah L. Powell, Thomas L. Hubert, Frances C. Hubert, Jackmar Realty Corporation, LLC, Cynthia Johnston, Maria L. R. Chi, Juergen R. K. Muenster, Elfriede B. Muenster Revocable Trust dated May 10, 2002, James L. Fisk, Karen P. Dobney, Carl Ganter, James Demetro, Eva M. Demetro, John Pelochino, Donald R. Caddle, Suzanne C. Caddle, Dennis R. Lawrence Revocable Trust, Neil C. McFall, Wanda M. McFall, Sidney Cohen, Lynne Z. Cohen, Donald Hull, Annette Hull, Janice Kawamura, John R. Pelochino, Joseph Pelochino, Andrea Pelochino, Paul Daneshrad | No | 0 | Springing | ||||||||||||
28 | The Bancorp Bank | Dunwoody Exchange | RE Dunwoody Holdings #1, LLC | Multifamily | 14,200,000 | 7/1/2015 | 360 | 360 | Matthew C. Millman | No | 63,333 | 15,833 | ||||||||||||
29 | Column | 4800 Sugar Grove | 4800 Sugar Grove, LLC | Office | 14,000,000 | 6/3/2015 | 360 | 359 | Hari P. Agrawal | No | 80,888 | 13,481 | ||||||||||||
30 | UBSRES | Renaissance Casa De Palmas | Northwest of McAllen Limited Partnership | Hotel | 13,500,000 | 7/7/2015 | 360 | 359 | Richard E. Takach, Jr.; John S. Turner, Jr. | No | 135,103 | 19,300 | ||||||||||||
31 | UBSRES | Burleson Town Center | Jahco Burleson Town Center LLC | Retail | 12,000,000 | 6/23/2015 | 300 | 299 | John A. Henry & Co., Ltd. | No | 212,757 | 27,994 | ||||||||||||
32 | Column | HH-Laveen / Laveen Commons | HH-Laveen, LLC | Retail | 11,850,000 | 6/5/2015 | 360 | 358 | Christopher P. Hinkson; Shannon Hinkson; Christopher P. Hinkson and Shannon Hinkson as trustees of the Christopher and Shannon Hinkson Revocable Trust, under agreement dated January 12, 2009 | No | 23,097 | 11,548 | ||||||||||||
33 | BSP | Colony Plaza | NG BIM Colony Plaza LLC | Retail | 11,750,000 | 6/30/2015 | 360 | 359 | Elchonon Schwartz; Simon Singer | No | 116,169 | 12,908 | ||||||||||||
34 | Column | Vicksburg Medical Office Building | GA HC REIT II Vicksburg MS MOB, LLC | Office | 11,500,000 | 6/4/2015 | 360 | 360 | Healthcare GA Operating Partnership-T, LP | No | 0 | Springing | ||||||||||||
35 | BSP | Millside Plaza | Millside Plaza LLC | Retail | 11,100,000 | 5/15/2015 | 360 | 360 | Reuven Rivlin | No | 69,303 | 23,101 | ||||||||||||
36 | Column | American Self Storage Portfolio | Self Storage LLC | Self Storage | 11,000,000 | 6/10/2015 | 360 | 360 | Larry C. Register | No | 46,441 | 5,160 | ||||||||||||
36.01 | Column | Odom Road | Self Storage | 2,110,312 | ||||||||||||||||||||
36.02 | Column | Brannon Stand | Self Storage | 2,004,796 | ||||||||||||||||||||
36.03 | Column | East | Self Storage | 2,004,796 | ||||||||||||||||||||
36.04 | Column | West | Self Storage | 1,688,249 | ||||||||||||||||||||
36.05 | Column | Enterprise | Self Storage | 1,160,672 | ||||||||||||||||||||
36.06 | Column | Ozark | Self Storage | 1,028,777 | ||||||||||||||||||||
36.07 | Column | North | Self Storage | 1,002,398 | ||||||||||||||||||||
37 | Column | Alvarado Center | Alvarado Real Estate Investments LLC | Retail | 11,000,000 | 5/20/2015 | 360 | 358 | Kamyar Mateen | No | 12,325 | 12,325 | ||||||||||||
38 | Column | Brookwood Apartments | BMA Brookwood Apartments, LLC | Multifamily | 10,695,000 | 5/27/2015 | 360 | 360 | Brian Martin | No | 56,537 | 9,423 | ||||||||||||
39 | UBSRES | Wyndham Deerfield Beach Resort | Deerfield 21 Corporation | Hotel | 10,500,000 | 6/11/2015 | 0 | 0 | David T. Chase | No | 286,197 | 33,279 | ||||||||||||
40 | BNYM | Staybridge Suites Brandywine | MDR Brinton Lake LLC; Brinton Lake Hotel Associates, LP | Hotel | 10,500,000 | 6/3/2015 | 360 | 358 | Stephen Field | No | 170,018 | 17,421 | ||||||||||||
41 | Column | Crescentwood Apartments | Sherwood Equity LLC | Multifamily | 10,460,000 | 5/11/2015 | 360 | 358 | Vernon Ward Barge III | No | 52,482 | 10,496 | ||||||||||||
42 | Column | Hunters Run | Pickerington Plaza Limited Partnership | Retail | 9,750,000 | 4/10/2015 | 360 | 360 | Gloria S. Haffer, as trustee of the Bernard R. Ruben irrevocable trust for issue u/a/d 12/7/1997 | No | 117,285 | 23,457 | ||||||||||||
43 | UBSRES | Crossroads Shopping Center | Crossroads Shopping Center Investments, LLC | Retail | 9,750,000 | 5/20/2015 | 360 | 358 | Mark Vakili (a/k/a Morteza Vakili); Mitra Vakili; The Vakili Family Trust | No | 164,737 | 19,502 | ||||||||||||
44 | Column | Hyperion Apartments | Konark Limited Partnership | Multifamily | 9,600,000 | 6/12/2015 | 360 | 359 | Chowdary Yalamanchili | No | 191,850 | 27,407 |
Loan Number | Mortgage Loan Seller | Property Name | Borrower Name | General Property Type | Original Balance ($) | Origination Date | Original Amortization Term (Mos.) | Remaining Amortization Term (Mos.) | Carve-out Guarantor | Letter of Credit | Upfront RE Tax Reserve ($) | Ongoing RE Tax Reserve ($) | |||||||||||||
45 | Column | Varner Crossing | Varner NLS, LLC & Varner 203, LLC | Retail | 9,500,000 | 7/10/2015 | 360 | 360 | M&J Wilkow, LTD | No | 40,941 | 3,722 | |||||||||||||
46 | BSP | Platinum Multifamily Portfolio | Silverwood, L.L.C.; Hudson Apartments, LLC; Camellia Apartments, LLC | Multifamily | 9,150,000 | 6/19/2015 | 360 | 359 | Moshe Florans | No | 26,310 | 6,486 | |||||||||||||
46.01 | BSP | Camellia Apartments | Multifamily | 3,335,938 | |||||||||||||||||||||
46.02 | BSP | Hudson Apartments | Multifamily | 3,097,656 | |||||||||||||||||||||
46.03 | BSP | Silverwood Apartments | Multifamily | 2,716,406 | |||||||||||||||||||||
47 | Column | Daytona Promenade | DPH Newco, LLC; NC Regency Newco, LLC; RB Daytona Newco, LLC; DPP Newco, LLC | Retail | 9,000,000 | 6/15/2015 | 360 | 360 | Andrew J. Cohen | No | 92,478 | 11,560 | |||||||||||||
48 | BNYM | 2280 Corporate Circle | 2280 Corporate Circle, LLC | Office | 9,000,000 | 7/10/2015 | 336 | 336 | American Nevada Holdings, LLC | No | 22,088 | 8,319 | |||||||||||||
49 | UBSRES | StorQuest Indio | 83655 Date SP, LLC; Milner-Indio SP, LLC; Porter-Indio SP, LLC | Self Storage | 8,400,000 | 6/16/2015 | 360 | 360 | William W. Hobin; Timothy B. Hobin; Clark W. Porter | No | 86,433 | 10,050 | |||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas | Plaza Las Brisas, LLC | Retail | 8,300,000 | 6/3/2015 | 360 | 358 | Fred Grimes | No | 19,320 | 9,660 | |||||||||||||
51 | BSP | Haggen Grocery El Cajon | HEC - RNBT LLC | Retail | 8,255,000 | 6/2/2015 | 360 | 360 | HEC - RNBT LLC | No | 0 | Springing | |||||||||||||
52 | UBSRES | 800 Chester Pike | 800 Chester Pike Associates, LP | Industrial | 8,100,000 | 7/17/2015 | 360 | 360 | Mark B. Kennedy | No | 4,718 | Springing | |||||||||||||
53 | Column | Tara Hills Apartments | Tara Hills LLC | Multifamily | 8,000,000 | 5/28/2015 | 360 | 360 | Tom Intrator | No | 42,223 | 8,445 | |||||||||||||
54 | BSP | Country Inn & Suites Baltimore North | Baltimore North Hotel LLC | Hotel | 8,000,000 | 7/9/2015 | 300 | 300 | Vinay B. Patel | No | 8,970 | 8,970 | |||||||||||||
55 | The Bancorp Bank | Cliffbrook Condominiums | AHH Paradise LLC | Multifamily | 7,875,000 | 7/1/2015 | 360 | 360 | Avtar C. Verma & Satya P. Verma | No | 49,050 | 8,175 | |||||||||||||
56 | UBSRES | Monroe Town Center | Monroe Center Associates, L.L.C. | Retail | 7,700,000 | 7/1/2015 | 360 | 359 | Robert Levinson; Marc Levinson; The Robert Levinson Living Trust, Dated November 10, 2005 | No | 45,365 | 12,601 | |||||||||||||
57 | BNYM | Storage Depot II (Scotts Valley Self Storage) | Mount Hermon Road Self Storage LLC | Self Storage | 7,200,000 | 6/10/2015 | 360 | 359 | John C. Lopuch; Lopuch Trust Dated August 9, 2000; Anthony R. Carr; Anthony R. Carr Revocable Trust of 1989 | No | 14,434 | 7,217 | |||||||||||||
58 | BSP | Governor’s Place | Bloomfield Valley Properties, LLC | Office | 7,000,000 | 7/10/2015 | 360 | 360 | David Colman; Michael Colman; Tyler Ross; James C. Beachum; James C. Beachum Revocable Trust U/A/D October 2, 1986 | No | 0 | 12,953 | |||||||||||||
59 | The Bancorp Bank | Walgreens - Waterford | Waterford 20 LLC | Retail | 6,600,000 | 5/15/2015 | 360 | 360 | Ruth Jeanette Veprin | No | 0 | Springing | |||||||||||||
60 | The Bancorp Bank | Central Crossing | CCBP II LLC | Industrial | 6,600,000 | 6/30/2015 | 360 | 359 | Francis Greenburger | No | 47,500 | 15,833 | |||||||||||||
61 | UBSRES | Chapanoke Square | Chapanoke Square LLC | Retail | 6,525,000 | 6/1/2015 | 360 | 360 | Ben Werczberger | No | 34,153 | 5,175 | |||||||||||||
62 | UBSRES | Mentor Industrial Portfolio | EL Acquisition LLC; Orbis Acquisition, LLC | Industrial | 6,200,000 | 7/6/2015 | 360 | 359 | Kathy Jane Riseman; K. J. Risman Revocable Trust Dated November 3, 2001, As Amended | No | 16,657 | 10,410 | |||||||||||||
62.01 | UBSRES | Eye Lighting | Industrial | 3,297,872 | |||||||||||||||||||||
62.02 | UBSRES | Orbis | Industrial | 2,902,128 | |||||||||||||||||||||
63 | UBSRES | Bowling Green | WC-Stahelin, LLC | Industrial | 6,100,000 | 5/22/2015 | 360 | 360 | Michael A. Stahelin; Leland M. Stahelin | No | 72,594 | 12,963 | |||||||||||||
64 | The Bancorp Bank | Concord Villas | 1935 W Linden, LLC & 3738 Harrison Apts, LLC | Multifamily | 6,000,000 | 6/10/2015 | 360 | 360 | Peter D. Wetton | No | 22,537 | 7,512 | |||||||||||||
65 | The Bancorp Bank | PA Rite Aid Portfolio | NB Penn LLC | Retail | 5,745,000 | 6/12/2015 | 360 | 359 | Norman Berris | No | 0 | Springing | |||||||||||||
65.01 | The Bancorp Bank | Rite Aid - Irwin | Retail | 2,872,500 | |||||||||||||||||||||
65.02 | The Bancorp Bank | Rite Aid - Pittsburgh | Retail | 2,872,500 | |||||||||||||||||||||
66 | UBSRES | A Storage Place - La Sierra | A Storage Place-La Sierra, LP | Self Storage | 5,700,000 | 7/2/2015 | 0 | 0 | Arthur Scott Flaming, individually and as trustee of The Flaming Family Trust Dated May 23, 2006 | No | 14,443 | 5,555 | |||||||||||||
67 | BSP | Pottstown Pike Retail | Zukin Family Limited Partnership | Retail | 5,600,000 | 7/1/2015 | 360 | 360 | Stanford Zukin | No | 15,513 | 5,171 | |||||||||||||
68 | BNYM | Cornerstone Chase Apartments | Cornerstone-Meadows Limited Partnership | Multifamily | 5,500,000 | 7/17/2015 | 360 | 360 | Phillip D. Worthen | No | 42,792 | 5,349 | |||||||||||||
69 | BSP | Best Western Plus at The Falls | Hudson Valley Resort LLC; Green Hospitality LLC | Hotel | 4,750,000 | 6/17/2015 | 300 | 299 | Bhavana Patel | No | 47,852 | 6,836 | |||||||||||||
70 | UBSRES | Long Meadow Farms | LMF Richmond, LLC; LMF Rambeau, LLC | Retail | 4,387,500 | 6/15/2015 | 360 | 360 | Michael O. Rambeau; Gene P. Peng | No | 37,220 | 4,897 | |||||||||||||
71 | Column | Tiki Tai and Maryland West MHC | Glendale Communities LP | Manufactured Housing | 4,125,000 | 6/12/2015 | 360 | 360 | Daniel C. Fischer | No | 16,884 | 1,688 | |||||||||||||
72 | UBSRES | Central Avenue Self Storage | Central Avenue Self Storage, L.P. | Self Storage | 4,000,000 | 4/21/2015 | 0 | 0 | Arthur L. Flaming, individually and as trustee of The Flaming Family Trust Dated October 8, 1997 | No | 7,276 | 4,548 | |||||||||||||
73 | Column | Granada Village | NP Granada MHC Associates, LLC | Manufactured Housing | 4,000,000 | 5/12/2015 | 360 | 358 | Richard M. Nodel | No | 17,454 | 2,909 | |||||||||||||
74 | Column | Santa Paula Self Storage | Santa Paula Self-Storage, L.P. | Self Storage | 3,900,000 | 5/29/2015 | 360 | 358 | Richard Ortale; William B. Kendall | No | 21,424 | 4,285 | |||||||||||||
75 | UBSRES | Renaissance Gardens | Shea Renaissance, LLC | Multifamily | 3,700,000 | 5/22/2015 | 360 | 360 | The Kennon Stuart Shea Legacy Trust for the benefit of Graham Thomas Shea and his descedants, 4-23-2012; The Kennon Stuart Shea Legacy Trust for the benefit of Anna Kathleen Shea and her descendants, 4-23-2012; The Kennon Stuart Shea Legacy Trust for the benefit of John Kennon Shea and his descendants, 4-23-2012 | No | 96,836 | 14,672 | |||||||||||||
76 | Column | Jaffa Chattanooga Parks | JP Chattanooga I, LLC | Manufactured Housing | 3,640,000 | 6/11/2015 | 360 | 360 | Daniel Weissman; David Shlachter | No | 84,400 | 8,440 | |||||||||||||
76.01 | Column | Whispering Pines MHP | Manufactured Housing | 2,058,000 | |||||||||||||||||||||
76.02 | Column | Acres of Shade MHP | Manufactured Housing | 1,582,000 | |||||||||||||||||||||
77 | The Bancorp Bank | Atrium Professional Plaza | Eleven Ten, LLC | Office | 3,550,000 | 7/8/2015 | 360 | 360 | Roger C. Hobbs | No | 25,703 | 3,672 | |||||||||||||
78 | The Bancorp Bank | 2143 Winslow Drive | Avnet II LLC | Multifamily | 3,400,000 | 4/14/2015 | 360 | 357 | Yacov Trachtingot | No | 2,500 | 2,500 | |||||||||||||
79 | BSP | Harwood Commons Ground Lease | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | Other | 3,100,000 | 4/23/2015 | 360 | 360 | Chicago Title Land Trust Company, Not Personally But Solely As Trustee Under Trust Agreement Dated February 24, 1986 And Known As Trust No. 43515 | No | 0 | Springing | |||||||||||||
80 | The Bancorp Bank | American Self Storage | American Self Storage Of Hemet, LLC | Self Storage | 2,990,000 | 7/10/2015 | 360 | 360 | Dennis A. Peterson | No | 35,081 | 3,508 | |||||||||||||
81 | BNYM | Walgreens (Petersburg, VA) | EST Virginia LLC | Retail | 2,900,000 | 7/1/2015 | 360 | 360 | Erwin Sredni | No | 0 | Springing | |||||||||||||
82 | The Bancorp Bank | Chapel Hill Apartments | Chapel Hill Villas, LLC | Multifamily | 2,800,000 | 6/17/2015 | 360 | 360 | J. Patrick Gregoire & Paul Daze | No | 39,833 | 3,983 | |||||||||||||
83 | BSP | Centerpoint Retail | 3900 Centerpoint Parkway Investments, L.L.C.; 3800 Centerpoint Parkway Investments, L.L.C.; 800 Opdyke Investments, L.L.C.; 700 Opdyke Investments, L.L.C.; 1600 Opdyke Associates, L.L.C. | Other | 2,800,000 | 6/2/2015 | 360 | 358 | Douglas Etkin | No | 1,595 | 1,595 | |||||||||||||
83.01 | BSP | Mi Zarape | Other | 618,605 | |||||||||||||||||||||
83.02 | BSP | Papa Vino’s | Other | 596,899 | |||||||||||||||||||||
83.03 | BSP | Wendy’s Tim Horton’s | Other | 596,899 | |||||||||||||||||||||
83.04 | BSP | Arby’s | Other | 499,225 | |||||||||||||||||||||
83.05 | BSP | Dunkin Donuts Baskin Robins | Other | 488,372 | |||||||||||||||||||||
84 | UBSRES | A Storage Place - Barton Road | A Storage Place-Barton Road, LP | Self Storage | 2,300,000 | 7/7/2015 | 0 | 0 | Aurthur L. Flaming as individual and as trustee of The Flaming Family Trust Dated October 8, 1997 | No | 10,408 | 4,003 | |||||||||||||
85 | UBSRES | CVS - Irmo | Portz Properties, LLC | Retail | 2,030,000 | 4/30/2015 | 0 | 0 | Stephen F. Portz; Jacklyn M. Portz | No | 55,890 | Springing | |||||||||||||
86 | Column | Cedar Bayou MHP | JP Baytown I, LLC | Manufactured Housing | 2,000,000 | 6/9/2015 | 360 | 360 | Daniel Weissman; David Shlachter | No | 9,138 | 914 | |||||||||||||
87 | Column | Shoppes at Hiram | Wendy Bagwell Venture, LLC | Retail | 1,600,000 | 7/1/2015 | 360 | 359 | F. William Hackmeyer; Jeffrey William Hackmeyer | No | 16,245 | 1,805 | |||||||||||||
88 | Column | The Legacy Plaza | Teal Holdings, LLC | Retail | 1,400,000 | 4/10/2015 | 360 | 360 | Steven Yari | No | 2,545 | 2,546 | |||||||||||||
89 | Column | Scenic Ridge | Scenic Ridge, LLC | Retail | 1,400,000 | 6/30/2015 | 360 | 359 | James S. Loup | No | 0 | 2,961 |
Loan Number | Mortgage Loan Seller | Property Name | Upfront Insurance Reserve ($) | Ongoing Insurance Reserve ($) | Upfront Engineering Reserve ($) | Upfront TI/LC Reserve ($) | Ongoing TI/LC Reserve ($) | TI/LC Caps ($) | Upfront Debt Service Reserve ($) | Ongoing Debt Service Reserve ($) | Upfront Deferred Maintenance Reserve ($) | Ongoing Deferred Maintenance Reserve ($) | Upfront Environmental Reserve ($) | Ongoing Environmental Reserve ($) | Upfront Other Reserve ($) | |||||||||||||||
1 | UBSRES | Charles River Plaza North | 16,531 | Springing | 0 | 0 | Springing | 0 | 0 | 0 | Springing | 0 | 0 | 0 | ||||||||||||||||
2 | Column | Starwood Capital Extended Stay Portfolio | 0 | Springing | 1,121,206 | 0 | 0 | 0 | 0 | 244,725 | 4% of gross income from operations for the calendar month which is 2 months prior to the applicable payment date | 0 | 0 | 6,500,000 | ||||||||||||||||
2.01 | Column | Crestwood Suites Denver - Aurora | ||||||||||||||||||||||||||||
2.02 | Column | Sun Suites New Orleans (Metairie) | ||||||||||||||||||||||||||||
2.03 | Column | Sun Suites New Orleans (Harvey) | ||||||||||||||||||||||||||||
2.04 | Column | Sun Suites Hobby (Clearlake) | ||||||||||||||||||||||||||||
2.05 | Column | Sun Suites Plano | ||||||||||||||||||||||||||||
2.06 | Column | Sun Suites Westchase | ||||||||||||||||||||||||||||
2.07 | Column | Crestwood Suites Marietta Roswell Road | ||||||||||||||||||||||||||||
2.08 | Column | Sun Suites Sugar Land (Stafford) | ||||||||||||||||||||||||||||
2.09 | Column | Sun Suites Raleigh | ||||||||||||||||||||||||||||
2.10 | Column | Sun Suites Intercontinental Greenspoint | ||||||||||||||||||||||||||||
2.11 | Column | Crestwood Suites Nashville Madison | ||||||||||||||||||||||||||||
2.12 | Column | Sun Suites Cumming | ||||||||||||||||||||||||||||
2.13 | Column | Crestwood Suites Murfreesboro | ||||||||||||||||||||||||||||
2.14 | Column | Sun Suites Smyrna | ||||||||||||||||||||||||||||
2.15 | Column | Sun Suites Dallas - Garland | ||||||||||||||||||||||||||||
2.16 | Column | Sun Suites DFW Airport - Lewisville | ||||||||||||||||||||||||||||
2.17 | Column | Sun Suites Charlotte - Matthews | ||||||||||||||||||||||||||||
2.18 | Column | Crestwood Suites Disney Orlando | ||||||||||||||||||||||||||||
2.19 | Column | Crestwood Suites Orlando UCF | ||||||||||||||||||||||||||||
2.20 | Column | Crestwood Suites Snellville | ||||||||||||||||||||||||||||
2.21 | Column | Sun Suites Suwanee | ||||||||||||||||||||||||||||
2.22 | Column | Home Towne Suites Kannapolis | ||||||||||||||||||||||||||||
2.23 | Column | Sun Suites Corpus Christi | ||||||||||||||||||||||||||||
2.24 | Column | Home Towne Suites Tuscaloosa | ||||||||||||||||||||||||||||
2.25 | Column | Sun Suites Jacksonville | ||||||||||||||||||||||||||||
2.26 | Column | Sun Suites Chesapeake | ||||||||||||||||||||||||||||
2.27 | Column | Crestwood Suites Fort Myers | ||||||||||||||||||||||||||||
2.28 | Column | Crestwood Suites Greensboro Airport | ||||||||||||||||||||||||||||
2.29 | Column | Crestwood Suites Austin | ||||||||||||||||||||||||||||
2.30 | Column | Sun Suites Gwinnett | ||||||||||||||||||||||||||||
2.31 | Column | Crestwood Suites Marietta - Town Center Mall | ||||||||||||||||||||||||||||
2.32 | Column | Crestwood Suites Baton Rouge | ||||||||||||||||||||||||||||
2.33 | Column | Home Towne Suites Columbus | ||||||||||||||||||||||||||||
2.34 | Column | Crestwood Suites NW Houston | ||||||||||||||||||||||||||||
2.35 | Column | Home Towne Suites Auburn | ||||||||||||||||||||||||||||
2.36 | Column | Sun Suites Stockbridge | ||||||||||||||||||||||||||||
2.37 | Column | Home Towne Suites Anderson | ||||||||||||||||||||||||||||
2.38 | Column | Crestwood Suites Colorado Springs | ||||||||||||||||||||||||||||
2.39 | Column | Home Towne Suites Prattville | ||||||||||||||||||||||||||||
2.40 | Column | Crestwood Suites High Point | ||||||||||||||||||||||||||||
2.41 | Column | Sun Suites Birmingham | ||||||||||||||||||||||||||||
2.42 | Column | Sun Suites Kennesaw Town Center | ||||||||||||||||||||||||||||
2.43 | Column | Sun Suites Greensboro | ||||||||||||||||||||||||||||
2.44 | Column | Home Towne Suites Greenville | ||||||||||||||||||||||||||||
2.45 | Column | Sun Suites Hattiesburg | ||||||||||||||||||||||||||||
2.46 | Column | Home Towne Suites Decatur | ||||||||||||||||||||||||||||
2.47 | Column | Home Towne Suites Bowling Green | ||||||||||||||||||||||||||||
2.48 | Column | Sun Suites Gulfport Airport | ||||||||||||||||||||||||||||
2.49 | Column | Crestwood Suites Newport News | ||||||||||||||||||||||||||||
2.50 | Column | Home Towne Suites Clarksville | ||||||||||||||||||||||||||||
3 | UBSRES | The Mall of New Hampshire | 0 | Springing | 0 | 0 | Springing | 689,729 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||
4 | Column | Westfield Wheaton | 0 | Springing | 0 | 0 | Springing | 1,392,492 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||
5 | Column | Arizona Grand Resort & Spa | 703,114 | 54,086 | 20,700 | 0 | 0 | 0 | 311,695 | Greater of 4% of the gross income from operations for the calendar month which is 2 months prior to the payment date or amount required in the management agreement | 0 | 0 | 597,267 | |||||||||||||||||
6 | Column | Soho-Tribeca Grand Hotel Portfolio | 0 | Springing | 225,068 | 0 | 0 | 0 | 0 | 0 | 4% of the total gross revenue for the calendar month that is 2 calendar month prior | 0 | 0 | 1,500,000 | ||||||||||||||||
6.01 | Column | Soho Grand Hotel | ||||||||||||||||||||||||||||
6.02 | Column | Tribeca Grand Hotel | ||||||||||||||||||||||||||||
7 | Column | Westfield Trumbull | 0 | Springing | 0 | 0 | Springing | 667,608 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||
8 | BNYM | Venue Emerald Coast | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 3,883 | 3,883 | 0 | 0 | 0 | ||||||||||||||||
9 | BNYM | 16542 & 16550 Ventura | 0 | Springing | 10,750 | 11,919 | 11,919 | 429,099 | 0 | 0 | 2,217 | 2,217 | 0 | 0 | 68,112 |
Loan Number | Mortgage Loan Seller | Property Name | Upfront Insurance Reserve ($) | Ongoing Insurance Reserve ($) | Upfront Engineering Reserve ($) | Upfront TI/LC Reserve ($) | Ongoing TI/LC Reserve ($) | TI/LC Caps ($) | Upfront Debt Service Reserve ($) | Ongoing Debt Service Reserve ($) | Upfront Deferred Maintenance Reserve ($) | Ongoing Deferred Maintenance Reserve ($) | Upfront Environmental Reserve ($) | Ongoing Environmental Reserve ($) | Upfront Other Reserve ($) | ||||||||||||||||
10 | BSP | 21 Astor Place | 2,319 | 464 | 0 | 0 | 0 | 0 | 0 | 0 | 139 | 0 | 0 | 7,392 | |||||||||||||||||
11 | Column | Hendry Multifamily Portfolio | 192,264 | 21,363 | 103,557 | 0 | 0 | 0 | 0 | 8,818 | 8,818 | 0 | 0 | 0 | |||||||||||||||||
11.01 | Column | Summer Lake Villas | |||||||||||||||||||||||||||||
11.02 | Column | Spinnaker Landing | |||||||||||||||||||||||||||||
11.03 | Column | New River | |||||||||||||||||||||||||||||
12 | The Bancorp Bank | Hampton Inn - Point Loma | 11,580 | 5,790 | 0 | 0 | 0 | 212,000 | 0 | 0 | 4% of rent for prior month | 0 | 0 | 5,800,319 | |||||||||||||||||
13 | BNYM | Hilton Arden West | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 3,750,000 | |||||||||||||||||
14 | BSP | 2500 South Damen Avenue | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | 1,068 | 0 | 0 | 0 | |||||||||||||||||
15 | BNYM | FL OH Multifamily Portfolio | 0 | Springing | 108,748 | 0 | 0 | 0 | 0 | 0 | 13,892 | 0 | 0 | 3,000 | |||||||||||||||||
15.01 | BNYM | Dartmouth Place | |||||||||||||||||||||||||||||
15.02 | BNYM | Sugartree Apartments | |||||||||||||||||||||||||||||
15.03 | BNYM | Meldon Place | |||||||||||||||||||||||||||||
15.04 | BNYM | Willowood Apartments | |||||||||||||||||||||||||||||
15.05 | BNYM | Parkway North Apartments | |||||||||||||||||||||||||||||
15.06 | BNYM | Sandpiper Apartments | |||||||||||||||||||||||||||||
16 | UBSRES | The Crescent Building | 10,283 | 2,856 | 10,000 | 0 | 17,494 | 1,500,000 | 0 | 0 | 0 | 2,682 | 0 | 0 | 539,130 | ||||||||||||||||
17 | UBSRES | Holiday Inn Express - Mill Valley | 20,414 | 1,741 | 6,063 | 0 | 0 | 0 | 0 | 0 | The greater of (a) an amount equal to 1/12 of 4% of Gross Income from Operations during the calendar year immediately preceding the calendar year in which such Monthly Payment Date occurs and (b) the aggregate amount, required to be reserved under the Management Agreement and the Franchise Agreement | 0 | 0 | 584,750 | |||||||||||||||||
18 | BNYM | 7101 Sunset Blvd | 1,623 | 1,623 | 0 | 53,899 | 3,898 | 187,130 | 0 | 0 | 623 | 623 | 0 | 0 | 34,770 | ||||||||||||||||
19 | BNYM | 16260 Ventura | 0 | Springing | 26,750 | 8,836 | 8,836 | 272,640 | 0 | 0 | 1,289 | 1,289 | 0 | 0 | 58,926 | ||||||||||||||||
20 | BNYM | Syracuse Office Portfolio | 3,970 | 3,970 | 0 | 31,650 | 31,650 | 759,600 | 0 | 0 | 3,660 | 3,660 | 0 | 0 | 368,296 | ||||||||||||||||
20.01 | BNYM | 250 Clinton | |||||||||||||||||||||||||||||
20.02 | BNYM | 507 Plum | |||||||||||||||||||||||||||||
21 | Column | Ranch at Guadalupe | 23,380 | 3,897 | 0 | 0 | 0 | 0 | 0 | 3,067 | 3,067 | 0 | 0 | 0 | |||||||||||||||||
22 | UBSRES | WPC Department Store Portfolio | 0 | Springing | 512,738 | 0 | Springing | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
22.01 | UBSRES | Boston Store - Brookfield Square Mall | |||||||||||||||||||||||||||||
22.02 | UBSRES | Boston Store - Mayfair Mall | |||||||||||||||||||||||||||||
22.03 | UBSRES | Boston Store - Southridge Mall | |||||||||||||||||||||||||||||
22.04 | UBSRES | Younkers - Bay Park Square Mall | |||||||||||||||||||||||||||||
22.05 | UBSRES | Carson Pirie Scott - Louis Joliet Mall | |||||||||||||||||||||||||||||
22.06 | UBSRES | Herberger’s - West Acres Mall | |||||||||||||||||||||||||||||
23 | UBSRES | FedEx Ground Shafter | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | 1,751 | 0 | 0 | 100,000 | |||||||||||||||||
24 | Column | Sterling & Milagro Apartments | 102,991 | 34,330 | 1,354,850 | 0 | 0 | 0 | 0 | 0 | 19,650 | 0 | 0 | 0 | |||||||||||||||||
25 | BSP | 1315 Lincoln Boulevard | 4,211 | 702 | 0 | 0 | 4,177 | 0 | 0 | 0 | 490 | 0 | 0 | 451,774 | |||||||||||||||||
26 | UBSRES | Cape May Hotels | 0 | Springing | 8,250 | 0 | 0 | 0 | 0 | 0 | From July through and including October of each year, the greater of (a) the sum of (i) an amount equal to 1/4 of 4% of the Room Revenue during the Shortfall Calculation Period immediately preceding such Monthly Payment Date occurs and (ii) $875 and (b) the aggregate amount, required to be reserved under the Management Agreement and the Franchise Agreement | 0 | 0 | 810,000 | |||||||||||||||||
26.01 | UBSRES | Congress Hall | |||||||||||||||||||||||||||||
26.02 | UBSRES | The Star | |||||||||||||||||||||||||||||
27 | Column | PG&E Building - Fresno | 0 | Springing | 27,938 | 1,025,800 | 8,548 | 0 | 0 | 1,539 | 0 | 0 | 447,755 | ||||||||||||||||||
28 | The Bancorp Bank | Dunwoody Exchange | 3,333 | 3,333 | 53,088 | 0 | 0 | 0 | 0 | 375,000 | 2,913 | 0 | 0 | 0 | |||||||||||||||||
29 | Column | 4800 Sugar Grove | 12,449 | 1,383 | 0 | 74,080 | 13,583 | 489,337 (excluding Solacium Fulshear TILC Fund) | 0 | 0 | 0 | 2,060 | 0 | 0 | 0 | ||||||||||||||||
30 | UBSRES | Renaissance Casa De Palmas | 161,127 | Springing | 7,813 | 0 | 0 | 0 | 0 | 0 | Greater of (a) 1/12 of 1% (closing date - July 2016), 2% (August 2016-September 2017), 3% (October 2017-November 2018), 4% thereafter of Gross Income from Operations and (b) the aggregate amount required under the Management Agreement and the Franchise Agreement | 0 | 0 | 2,838,873 | |||||||||||||||||
31 | UBSRES | Burleson Town Center | 33,888 | 2,921 | 0 | 0 | 7,629 | 400,000 | 0 | 0 | 0 | 1,760 | 0 | 0 | 0 | ||||||||||||||||
32 | Column | HH-Laveen / Laveen Commons | 1,946 | 1,946 | 0 | 8,948 | 8,948 | 229,900 | 0 | 0 | 1,276 | 1,276 | 0 | 0 | 193,451 | ||||||||||||||||
33 | BSP | Colony Plaza | 9,917 | 1,240 | 43,450 | 0 | 12,640 | 500,000 | 0 | 0 | 0 | 3,250 | 0 | 0 | 1,000,000 | ||||||||||||||||
34 | Column | Vicksburg Medical Office Building | 0 | Springing | 0 | 0 | Springing | 0 | 0 | 0 | 1,301 | 0 | 0 | 0 | |||||||||||||||||
35 | BSP | Millside Plaza | 4,219 | 2,110 | 0 | 300,000 | 5,495 | 0 | 0 | 0 | 970 | 0 | 0 | 0 | |||||||||||||||||
36 | Column | American Self Storage Portfolio | 45,169 | 3,764 | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
36.01 | Column | Odom Road | |||||||||||||||||||||||||||||
36.02 | Column | Brannon Stand | |||||||||||||||||||||||||||||
36.03 | Column | East | |||||||||||||||||||||||||||||
36.04 | Column | West | |||||||||||||||||||||||||||||
36.05 | Column | Enterprise | |||||||||||||||||||||||||||||
36.06 | Column | Ozark | |||||||||||||||||||||||||||||
36.07 | Column | North | |||||||||||||||||||||||||||||
37 | Column | Alvarado Center | 5,446 | 454 | 12,500 | 0 | 0 | 0 | 0 | 0 | 570 | 0 | 0 | 0 | |||||||||||||||||
38 | Column | Brookwood Apartments | 13,911 | 3,478 | 83,785 | 0 | 0 | 0 | 0 | 7,227 | 7,227 | 0 | 0 | 0 | |||||||||||||||||
39 | UBSRES | Wyndham Deerfield Beach Resort | 276,354 | 23,824 | 147,500 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||||||||
40 | BNYM | Staybridge Suites Brandywine | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | 1/12 of 4% of total revenue | 0 | 0 | 550,000 | |||||||||||||||||
41 | Column | Crescentwood Apartments | 0 | 13,586 | 14,188 | 0 | 0 | 0 | 0 | 4,500 | 4,500 | 0 | 0 | 200,000 | |||||||||||||||||
42 | Column | Hunters Run | 15,846 | 1,321 | 0 | 350,000 | 7,333 | 500,000 | 0 | 0 | 0 | 1,108 | 0 | 0 | 0 | ||||||||||||||||
43 | UBSRES | Crossroads Shopping Center | 10,964 | 2,384 | 607,228 | 150,000 | $8,333 before Specified Tenant Trigger Event, $25,000 after | 500,000 | 0 | 0 | 0 | 4,186 | 0 | 0 | 1,619,500 | ||||||||||||||||
44 | Column | Hyperion Apartments | 24,444 | 6,111 | 12,813 | 0 | 0 | 0 | 0 | 0 | 5,204 | 0 | 0 | 0 |
Loan Number | Mortgage Loan Seller | Property Name | Upfront Insurance Reserve ($) | Ongoing Insurance Reserve ($) | Upfront Engineering Reserve ($) | Upfront TI/LC Reserve ($) | Ongoing TI/LC Reserve ($) | TI/LC Caps ($) | Upfront Debt Service Reserve ($) | Ongoing Debt Service Reserve ($) | Upfront Deferred Maintenance Reserve ($) | Ongoing Deferred Maintenance Reserve ($) | Upfront Environmental Reserve ($) | Ongoing Environmental Reserve ($) | Upfront Other Reserve ($) | ||||||||||||||||
45 | Column | Varner Crossing | 4,721 | 944 | 0 | 0 | 1,644 | 0 | 0 | 329 | 0 | 0 | 0 | ||||||||||||||||||
46 | BSP | Platinum Multifamily Portfolio | 45,506 | 9,101 | 55,531 | 0 | 0 | 0 | 0 | 0 | 6,757 | 0 | 0 | 0 | |||||||||||||||||
46.01 | BSP | Camellia Apartments | |||||||||||||||||||||||||||||
46.02 | BSP | Hudson Apartments | |||||||||||||||||||||||||||||
46.03 | BSP | Silverwood Apartments | |||||||||||||||||||||||||||||
47 | Column | Daytona Promenade | 2,362 | 7,763 | 48,438 | 6,665 | 6,665 | 375,000 | 0 | 0 | 2,813 | 2,813 | 0 | 0 | 500,000 | ||||||||||||||||
48 | BNYM | 2280 Corporate Circle | 0 | Springing | 0 | 6,129 | 6,129 | 0 | 0 | 1,324 | 1,324 | 0 | 0 | 0 | |||||||||||||||||
49 | UBSRES | StorQuest Indio | 0 | Springing | 154,465 | 0 | 0 | 0 | 0 | 0 | 1,203 | 0 | 0 | 0 | |||||||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas | 0 | 1,137 | 13,750 | 0 | 2,701 | Cap of $162,000 from and after the occurrence of 2019 Rollover Event | 0 | 0 | 0 | 1,414 | 0 | 0 | 0 | ||||||||||||||||
51 | BSP | Haggen Grocery El Cajon | 0 | Springing | 8,100 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
52 | UBSRES | 800 Chester Pike | 6,163 | 1,712 | 66,156 | 425,000 | Springing | 250,000 | 0 | 0 | 17,103 | 1,425 | 0 | 0 | 508,947 | ||||||||||||||||
53 | Column | Tara Hills Apartments | 3,306 | 3,306 | 185,723 | 0 | 0 | 0 | 0 | 1,000,000 | 4,618 | 0 | 0 | 0 | |||||||||||||||||
54 | BSP | Country Inn & Suites Baltimore North | 20,157 | 2,520 | 29,375 | 0 | 0 | 0 | 0 | 7,768 | 1/12 of 4% of the greater of (i) gross revenues for the preceding calendar year, or (ii) the projected gross revenues for the current calendar year | 0 | 0 | 55,563 | |||||||||||||||||
55 | The Bancorp Bank | Cliffbrook Condominiums | 31,083 | 3,454 | 49,188 | 0 | 0 | 0 | 0 | 0 | 3,171 | 0 | 0 | 0 | |||||||||||||||||
56 | UBSRES | Monroe Town Center | 17,291 | 1,372 | 0 | 0 | 3,358 | 137,000 | 0 | 0 | 0 | 403 | 0 | 0 | 0 | ||||||||||||||||
57 | BNYM | Storage Depot II (Scotts Valley Self Storage) | 675 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | 934 | 0 | 0 | 16,000 | |||||||||||||||||
58 | BSP | Governor’s Place | 6,319 | 1,264 | 0 | 0 | 3,990 | 300,000 | 0 | 0 | 0 | 798 | 0 | 0 | 0 | ||||||||||||||||
59 | The Bancorp Bank | Walgreens - Waterford | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 100,000 | |||||||||||||||||
60 | The Bancorp Bank | Central Crossing | 2,000 | Springing | 63,313 | 0 | 4,997 | 1,290,000 | 0 | 0 | 0 | 1,999 | 0 | 0 | 138,681 | ||||||||||||||||
61 | UBSRES | Chapanoke Square | 4,396 | 1,691 | 0 | 0 | 3,386 | 0 | 0 | 0 | 1,505 | 0 | 0 | 0 | |||||||||||||||||
62 | UBSRES | Mentor Industrial Portfolio | 0 | Springing | 258,724 | 0 | 4,344 | 260,625 | 0 | 0 | 0 | 1,738 | 0 | 0 | 0 | ||||||||||||||||
62.01 | UBSRES | Eye Lighting | |||||||||||||||||||||||||||||
62.02 | UBSRES | Orbis | |||||||||||||||||||||||||||||
63 | UBSRES | Bowling Green | 11,507 | 3,196 | 0 | 150,000 | Springing | 75,000 | 0 | 0 | 0 | 4,309 | 0 | 0 | 34,302 | ||||||||||||||||
64 | The Bancorp Bank | Concord Villas | 1,167 | 1,167 | 12,500 | 0 | 0 | 0 | 0 | 0 | 1,287 | 0 | 0 | 0 | |||||||||||||||||
65 | The Bancorp Bank | PA Rite Aid Portfolio | 0 | Springing | 14,813 | 65,448 | Springing | 65,448 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | ||||||||||||||||
65.01 | The Bancorp Bank | Rite Aid - Irwin | |||||||||||||||||||||||||||||
65.02 | The Bancorp Bank | Rite Aid - Pittsburgh | |||||||||||||||||||||||||||||
66 | UBSRES | A Storage Place - La Sierra | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
67 | BSP | Pottstown Pike Retail | 0 | Springing | 0 | 0 | 745 | 100,000 | 0 | 0 | 0 | 233 | 0 | 0 | 0 | ||||||||||||||||
68 | BNYM | Cornerstone Chase Apartments | 46,508 | Springing | 113,000 | 0 | 0 | 0 | 0 | 287,000 | Springing | 0 | 0 | 0 | |||||||||||||||||
69 | BSP | Best Western Plus at The Falls | 5,661 | 2,830 | 0 | 0 | 0 | 0 | 0 | 0 | 1/12 of 4% of the greater of (i) gross revenues for the preceding calendar year, or (ii) the projected gross revenues for the current calendar year | 0 | 0 | 0 | |||||||||||||||||
70 | UBSRES | Long Meadow Farms | 2,951 | 820 | 0 | 0 | 1,667 | 100,000 | 0 | 0 | 0 | 185 | 0 | 0 | 142,500 | ||||||||||||||||
71 | Column | Tiki Tai and Maryland West MHC | 1,211 | 605 | 10,661 | 0 | 0 | 0 | 0 | 0 | 467 | 0 | 0 | 0 | |||||||||||||||||
72 | UBSRES | Central Avenue Self Storage | 5,406 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
73 | Column | Granada Village | 11,238 | 1,022 | 17,154 | 0 | 0 | 0 | 0 | 1,175 | 1,175 | 0 | 0 | 0 | |||||||||||||||||
74 | Column | Santa Paula Self Storage | 8,110 | 811 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||||||||||||||
75 | UBSRES | Renaissance Gardens | 47,836 | 4,983 | 18,590 | 0 | 0 | 0 | 0 | 675,331 | Springing | 0 | 0 | 0 | |||||||||||||||||
76 | Column | Jaffa Chattanooga Parks | 4,467 | 1,117 | 17,500 | 0 | 0 | 0 | 0 | 838 | 838 | 0 | 0 | 0 | |||||||||||||||||
76.01 | Column | Whispering Pines MHP | |||||||||||||||||||||||||||||
76.02 | Column | Acres of Shade MHP | |||||||||||||||||||||||||||||
77 | The Bancorp Bank | Atrium Professional Plaza | 3,873 | 387 | 43,750 | 0 | 1,623 | 58,413 | 0 | 0 | 0 | 564 | 0 | 0 | 0 | ||||||||||||||||
78 | The Bancorp Bank | 2143 Winslow Drive | 8,250 | 8,250 | 93,031 | 0 | 0 | 0 | 0 | 0 | 4,875 | 0 | 0 | 0 | |||||||||||||||||
79 | BSP | Harwood Commons Ground Lease | 0 | Springing | 0 | 0 | 0 | 141,365 | Springing | 0 | 0 | 0 | 0 | 0 | |||||||||||||||||
80 | The Bancorp Bank | American Self Storage | 2,060 | 1,030 | 750 | 0 | 0 | 0 | 0 | 0 | 648 | 0 | 0 | 0 | |||||||||||||||||
81 | BNYM | Walgreens (Petersburg, VA) | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
82 | The Bancorp Bank | Chapel Hill Apartments | 833 | 833 | 0 | 0 | 0 | 0 | 0 | 0 | 300 | 0 | 0 | 0 | |||||||||||||||||
83 | BSP | Centerpoint Retail | 234 | 234 | 0 | 0 | 1,471 | 100,000 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||
83.01 | BSP | Mi Zarape | |||||||||||||||||||||||||||||
83.02 | BSP | Papa Vino’s | |||||||||||||||||||||||||||||
83.03 | BSP | Wendy’s Tim Horton’s | |||||||||||||||||||||||||||||
83.04 | BSP | Arby’s | |||||||||||||||||||||||||||||
83.05 | BSP | Dunkin Donuts Baskin Robins | |||||||||||||||||||||||||||||
84 | UBSRES | A Storage Place - Barton Road | 0 | Springing | 0 | 0 | 0 | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
85 | UBSRES | CVS - Irmo | 3,542 | Springing | 0 | 0 | Springing | 0 | 0 | 45,000 | 169 | 0 | 0 | 0 | |||||||||||||||||
86 | Column | Cedar Bayou MHP | 6,069 | 1,517 | 0 | 0 | 0 | 0 | 0 | 463 | 463 | 0 | 0 | 0 | |||||||||||||||||
87 | Column | Shoppes at Hiram | 0 | 269 | 0 | 0 | 998 | 47,880 | 0 | 0 | 0 | 158 | 0 | 0 | 0 | ||||||||||||||||
88 | Column | The Legacy Plaza | 936 | 104 | 0 | 50,000 | Springing | 0 | 0 | 0 | Springing | 0 | 0 | 0 | |||||||||||||||||
89 | Column | Scenic Ridge | 1,916 | 240 | 0 | 0 | 800 | 0 | 0 | 0 | 115 | 0 | 0 | 60,000 |
Loan Number | Mortgage Loan Seller | Property Name | Ongoing Other Reserve ($) | Other Reserve Description | Grace Period- Default | Grace Period- Late Fee | Environmental Insurance | Cash Management | Lockbox | Units, Pads, Rooms, Sq Ft, Beds | Unit Description | Monthly Debt Service ($) (1) | Interest Accrual Method | Administrative Fee Rate (%) (2) | Ground Lease Y/N | Overlapping Fee Interest? | Prepayment Provision (3) | |||||||||||||||||
1 | UBSRES | Charles River Plaza North | Springing | Major Tenant TI/LC Reserve Funds (Monthly Springing: Excess Cash Flow) | 5 times 3-day grace period | 0 | Phase I | Springing | Hard | 354,594 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | ||||||||||||||||||
2 | Column | Starwood Capital Extended Stay Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Hard | 6,106 | Rooms | 0 | Actual/360 | 0.0103% | No | L(25), Def or YM1(31), O(4) | |||||||||||||||||||
2.01 | Column | Crestwood Suites Denver - Aurora | Phase I | 148 | Rooms | |||||||||||||||||||||||||||||
2.02 | Column | Sun Suites New Orleans (Metairie) | Phase I | 132 | Rooms | |||||||||||||||||||||||||||||
2.03 | Column | Sun Suites New Orleans (Harvey) | Phase I | 126 | Rooms | |||||||||||||||||||||||||||||
2.04 | Column | Sun Suites Hobby (Clearlake) | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.05 | Column | Sun Suites Plano | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.06 | Column | Sun Suites Westchase | Phase I | 127 | Rooms | |||||||||||||||||||||||||||||
2.07 | Column | Crestwood Suites Marietta Roswell Road | Phase I | 125 | Rooms | |||||||||||||||||||||||||||||
2.08 | Column | Sun Suites Sugar Land (Stafford) | Phase I | 146 | Rooms | |||||||||||||||||||||||||||||
2.09 | Column | Sun Suites Raleigh | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.10 | Column | Sun Suites Intercontinental Greenspoint | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.11 | Column | Crestwood Suites Nashville Madison | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.12 | Column | Sun Suites Cumming | Phase I | 127 | Rooms | |||||||||||||||||||||||||||||
2.13 | Column | Crestwood Suites Murfreesboro | Phase I | 136 | Rooms | |||||||||||||||||||||||||||||
2.14 | Column | Sun Suites Smyrna | Phase I | 125 | Rooms | |||||||||||||||||||||||||||||
2.15 | Column | Sun Suites Dallas - Garland | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.16 | Column | Sun Suites DFW Airport - Lewisville | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.17 | Column | Sun Suites Charlotte - Matthews | Phase I | 140 | Rooms | |||||||||||||||||||||||||||||
2.18 | Column | Crestwood Suites Disney Orlando | Phase I | 144 | Rooms | |||||||||||||||||||||||||||||
2.19 | Column | Crestwood Suites Orlando UCF | Phase I | 134 | Rooms | |||||||||||||||||||||||||||||
2.20 | Column | Crestwood Suites Snellville | Phase I | 130 | Rooms | |||||||||||||||||||||||||||||
2.21 | Column | Sun Suites Suwanee | Phase I | 127 | Rooms | |||||||||||||||||||||||||||||
2.22 | Column | Home Towne Suites Kannapolis | Phase I | 80 | Rooms | |||||||||||||||||||||||||||||
2.23 | Column | Sun Suites Corpus Christi | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.24 | Column | Home Towne Suites Tuscaloosa | Phase I | 124 | Rooms | |||||||||||||||||||||||||||||
2.25 | Column | Sun Suites Jacksonville | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.26 | Column | Sun Suites Chesapeake | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.27 | Column | Crestwood Suites Fort Myers | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.28 | Column | Crestwood Suites Greensboro Airport | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.29 | Column | Crestwood Suites Austin | Phase I | 151 | Rooms | |||||||||||||||||||||||||||||
2.30 | Column | Sun Suites Gwinnett | Phase I | 102 | Rooms | |||||||||||||||||||||||||||||
2.31 | Column | Crestwood Suites Marietta - Town Center Mall | Phase I | 133 | Rooms | |||||||||||||||||||||||||||||
2.32 | Column | Crestwood Suites Baton Rouge | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.33 | Column | Home Towne Suites Columbus | Phase I | 78 | Rooms | |||||||||||||||||||||||||||||
2.34 | Column | Crestwood Suites NW Houston | Phase I | 146 | Rooms | |||||||||||||||||||||||||||||
2.35 | Column | Home Towne Suites Auburn | Phase I | 64 | Rooms | |||||||||||||||||||||||||||||
2.36 | Column | Sun Suites Stockbridge | Phase I | 126 | Rooms | |||||||||||||||||||||||||||||
2.37 | Column | Home Towne Suites Anderson | Phase I | 80 | Rooms | |||||||||||||||||||||||||||||
2.38 | Column | Crestwood Suites Colorado Springs | Phase I | 147 | Rooms | |||||||||||||||||||||||||||||
2.39 | Column | Home Towne Suites Prattville | Phase I | 64 | Rooms | |||||||||||||||||||||||||||||
2.40 | Column | Crestwood Suites High Point | Phase I | 137 | Rooms | |||||||||||||||||||||||||||||
2.41 | Column | Sun Suites Birmingham | Phase I | 135 | Rooms | |||||||||||||||||||||||||||||
2.42 | Column | Sun Suites Kennesaw Town Center | Phase I | 105 | Rooms | |||||||||||||||||||||||||||||
2.43 | Column | Sun Suites Greensboro | Phase I | 133 | Rooms | |||||||||||||||||||||||||||||
2.44 | Column | Home Towne Suites Greenville | Phase I | 70 | Rooms | |||||||||||||||||||||||||||||
2.45 | Column | Sun Suites Hattiesburg | Phase I | 116 | Rooms | |||||||||||||||||||||||||||||
2.46 | Column | Home Towne Suites Decatur | Phase I | 70 | Rooms | |||||||||||||||||||||||||||||
2.47 | Column | Home Towne Suites Bowling Green | Phase I | 106 | Rooms | |||||||||||||||||||||||||||||
2.48 | Column | Sun Suites Gulfport Airport | Phase I | 128 | Rooms | |||||||||||||||||||||||||||||
2.49 | Column | Crestwood Suites Newport News | Phase I | 109 | Rooms | |||||||||||||||||||||||||||||
2.50 | Column | Home Towne Suites Clarksville | Phase I | 70 | Rooms | |||||||||||||||||||||||||||||
3 | UBSRES | The Mall of New Hampshire | 0.0% | 0 | 0 | Phase I | Springing | Hard | 405,723 | Square Feet | 0 | Actual/360 | 0.0103% | Yes | No | L(25), Def(88), O(7) | ||||||||||||||||||
4 | Column | Westfield Wheaton | 0.0% | 5 | 5 | Phase I | Springing | Hard | 1,649,363 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(29), Def or YM1(84), O(7) | |||||||||||||||||||
5 | Column | Arizona Grand Resort & Spa | Springing | After Seasonality Deposit Trigger, on each payment date occurring in January to June, Borrower shall pay monthly seasonality deposit, from and after the seasonality deposit trigger, all seasonality excess cash shall be deposit into the seasonality reserve account. | 0 | 0 | Phase I | In Place | Hard | 744 | Rooms | 0 | Actual/360 | 0.0103% | Yes | No | L(25), Def(90), O(5) | |||||||||||||||||
6 | Column | Soho-Tribeca Grand Hotel Portfolio | Springing | Seasonality Reserve - September and October $600,000 monthly, November and December $300,000 monthly | 0 | 0 | Phase I | Springing | Hard | 554 | Rooms | 0 | Actual/360 | 0.0103% | No | L(33), Def(83), O(4) | ||||||||||||||||||
6.01 | Column | Soho Grand Hotel | Phase I | 353 | Rooms | |||||||||||||||||||||||||||||
6.02 | Column | Tribeca Grand Hotel | Phase I | 201 | Rooms | |||||||||||||||||||||||||||||
7 | Column | Westfield Trumbull | 0.0% | 5 | 5 | Phase I | Springing | Hard | 1,130,472 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(29), Def or YM1(84), O(7) | |||||||||||||||||||
8 | BNYM | Venue Emerald Coast | 0.0% | 0 | 0 | Phase I | Springing | Springing | 233 | Units | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
9 | BNYM | 16542 & 16550 Ventura | 0.0% | 0 | 0 | Phase I | Springing | Springing | 95,355 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), YM1(92), O(4) |
Loan Number | Mortgage Loan Seller | Property Name | Ongoing Other Reserve ($) | Other Reserve Description | Grace Period- Default | Grace Period- Late Fee | Environmental Insurance | Cash Management | Lockbox | Units, Pads, Rooms, Sq Ft, Beds | Unit Description | Monthly Debt Service ($) (1) | Interest Accrual Method | Administrative Fee Rate (%) (2) | Ground Lease Y/N | Overlapping Fee Interest? | Prepayment Provision (3) | |||||||||||||||||
10 | BSP | 21 Astor Place | Springing | Major Tenant Reserve: Borrower shall deposit $1,500,000 in cash or LoC for each tenant during a Major Tenant Termination Event Condominium Funds: (i) during a Condominium Account Deposit Period, borrower shall make monthly deposits in an amount sufficient to pay the Condominium Common Charges payable for the next ensuing month (ii) at any other time if lender determines funds in account are insufficient, borrower will deposit funds to cover the deficiency | 0 | 0 | Phase I | Springing | Hard | 11,121 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), YM1(89), O(7) | ||||||||||||||||||
11 | Column | Hendry Multifamily Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 325 | Units | 0 | Actual/360 | 0.0153% | No | L(25), Def(91), O(4) | |||||||||||||||||||
11.01 | Column | Summer Lake Villas | Phase I | 144 | Units | |||||||||||||||||||||||||||||
11.02 | Column | Spinnaker Landing | Phase I | 123 | Units | |||||||||||||||||||||||||||||
11.03 | Column | New River | Phase I | 58 | Units | |||||||||||||||||||||||||||||
12 | The Bancorp Bank | Hampton Inn - Point Loma | Springing | Seasonality Reserve: $102,150 for payments occurring in July and August | 0 | 0 | Phase I | Springing | Springing | 207 | Rooms | 0 | Actual/360 | 0.0103% | No | L(27), Def(89), O(4) | ||||||||||||||||||
13 | BNYM | Hilton Arden West | 0.0% | 0 | 0 | Phase I | Springing | Springing | 335 | Rooms | 0 | Actual/360 | 0.0103% | No | L(25), Def(31), O(4) | |||||||||||||||||||
14 | BSP | 2500 South Damen Avenue | 0.0% | 0 | 0 | Phase I | Springing | Hard | 128,200 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
15 | BNYM | FL OH Multifamily Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Soft | 543 | Units | 0 | Actual/360 | 0.0103% | No | L(29), Def(87), O(4) | |||||||||||||||||||
15.01 | BNYM | Dartmouth Place | Phase I | 102 | Units | |||||||||||||||||||||||||||||
15.02 | BNYM | Sugartree Apartments | Phase I | 120 | Units | |||||||||||||||||||||||||||||
15.03 | BNYM | Meldon Place | Phase I | 127 | Units | |||||||||||||||||||||||||||||
15.04 | BNYM | Willowood Apartments | Phase I | 72 | Units | |||||||||||||||||||||||||||||
15.05 | BNYM | Parkway North Apartments | Phase I | 56 | Units | |||||||||||||||||||||||||||||
15.06 | BNYM | Sandpiper Apartments | Phase I | 66 | Units | |||||||||||||||||||||||||||||
16 | UBSRES | The Crescent Building | Springing | Specified Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | In Place | Hard | 139,948 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
17 | UBSRES | Holiday Inn Express - Mill Valley | Springing | Future PIP Reserve (Monthly Springing: Excess Cash Flow); Seasonality Reserve Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 100 | Rooms | 0 | Actual/360 | 0.0678% | No | L(25), Def(91), O(4) | ||||||||||||||||||
18 | BNYM | 7101 Sunset Blvd | 0.0% | 0 | 0 | Phase I | Springing | Springing | 37,426 | Square Feet | 0 | Actual/360 | 0.0478% | No | L(25), Def(90), O(5) | |||||||||||||||||||
19 | BNYM | 16260 Ventura | 0.0% | 0 | 0 | Phase I | Springing | Springing | 60,587 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), YM1(92), O(4) | |||||||||||||||||||
20 | BNYM | Syracuse Office Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Hard | 253,200 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
20.01 | BNYM | 250 Clinton | Phase I | 182,697 | Square Feet | |||||||||||||||||||||||||||||
20.02 | BNYM | 507 Plum | Phase I | 70,503 | Square Feet | |||||||||||||||||||||||||||||
21 | Column | Ranch at Guadalupe | 0.0% | 0 | 0 | Phase I | Springing | Soft | 184 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
22 | UBSRES | WPC Department Store Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 1,002,731 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(88), O(7) | |||||||||||||||||||
22.01 | UBSRES | Boston Store - Brookfield Square Mall | Phase I | 211,253 | Square Feet | |||||||||||||||||||||||||||||
22.02 | UBSRES | Boston Store - Mayfair Mall | Phase I | 206,681 | Square Feet | |||||||||||||||||||||||||||||
22.03 | UBSRES | Boston Store - Southridge Mall | Phase I | 217,434 | Square Feet | |||||||||||||||||||||||||||||
22.04 | UBSRES | Younkers - Bay Park Square Mall | Phase I | 132,195 | Square Feet | |||||||||||||||||||||||||||||
22.05 | UBSRES | Carson Pirie Scott - Louis Joliet Mall | Phase I | 126,365 | Square Feet | |||||||||||||||||||||||||||||
22.06 | UBSRES | Herberger’s - West Acres Mall | Phase I | 108,803 | Square Feet | |||||||||||||||||||||||||||||
23 | UBSRES | FedEx Ground Shafter | Springing | Major Tenant TI/LC Reserve Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 210,115 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
24 | Column | Sterling & Milagro Apartments | 0.0% | 0 | 0 | Phase I | Springing | Springing | 1,179 | Units | 0 | Actual/360 | 0.0103% | No | L(27), Def(86), O(7) | |||||||||||||||||||
25 | BSP | 1315 Lincoln Boulevard | Springing | Lease Sweep Reserve: Monthly deposit of excess cash flow upon the occurrence and continuance of a Cash Sweep Period that exists solely due to the continuance of a Specified Tenant Sweep Period | 0 | 0 | Phase I | Springing | Hard | 23,533 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(27), Def(29), O(4) | ||||||||||||||||||
26 | UBSRES | Cape May Hotels | Springing | Seasonality Reserve (July, August, September, October each year commencing with and including 2016: 25% of Required Seasonality Reserve Amount); PIP Reserve Funds (Excess Cash Flow); Gift Certificates Reserve Funds (Monthly Gift Certificates Deposit Amount); Advance Deposits Funds (Monthly Advance Deposit Amount) | 0 | 0 | Phase I | Springing | Hard | 129 | Rooms | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | ||||||||||||||||||
26.01 | UBSRES | Congress Hall | Phase I | 108 | Rooms | |||||||||||||||||||||||||||||
26.02 | UBSRES | The Star | Phase I | 21 | Rooms | |||||||||||||||||||||||||||||
27 | Column | PG&E Building - Fresno | Springing | Lease Sweep Reserve: (Springing Monthly: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 102,580 | Square Feet | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
28 | The Bancorp Bank | Dunwoody Exchange | 0.0% | 0 | 0 | Phase I | Springing | Springing | 233 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
29 | Column | 4800 Sugar Grove | Springing | Lease termination payment reserve springing upon receipt of a lease termination payment | 0 | 0 | Phase I | Springing | Soft | 123,570 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), YM1(91), O(4) | ||||||||||||||||||
30 | UBSRES | Renaissance Casa De Palmas | Springing | PIP Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 165 | Rooms | 0 | Actual/360 | 0.0103% | Yes | No | L(24), YM1(89), O(7) | |||||||||||||||||
31 | UBSRES | Burleson Town Center | Springing | Major Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Springing | 140,861 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(88), O(7) | ||||||||||||||||||
32 | Column | HH-Laveen / Laveen Commons | Springing | starting on the payment date of 1/2019, $20,000 per month reserve in anticipation of Big Lots tenant lease maturity till achieve $480,000. | 0 | 0 | Phase I | Springing | Hard | 102,079 | Square Feet | 0 | Actual/360 | 0.0203% | No | L(26), Def(90), O(4) | ||||||||||||||||||
33 | BSP | Colony Plaza | Springing | Lease Sweep Reserve: Monthly deposit of excess cash flow upon the occurrence and continuance of a Cash Sweep Period that exists solely due to the continuance of a Specified Tenant Sweep Period | 0 | 0 | Phase I | Springing | Hard | 216,693 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
34 | Column | Vicksburg Medical Office Building | 124900.0% | Ground Lease Payment Reserve | 0 | 0 | Phase I | In Place | Hard | 62,436 | Square Feet | 0 | Actual/360 | 0.0103% | Yes | No | L(26), Def(87), O(7) | |||||||||||||||||
35 | BSP | Millside Plaza | Springing | Lease Sweep Reserve: Monthly deposit of excess cash flow upon the occurrence and continuance of a Cash Sweep Period that exists solely due to the continuance of a Specified Tenant Sweep Period | 0 | 0 | Phase I | Springing | Hard | 77,583 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | ||||||||||||||||||
36 | Column | American Self Storage Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 2,137 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
36.01 | Column | Odom Road | Phase I | 378 | Units | |||||||||||||||||||||||||||||
36.02 | Column | Brannon Stand | Phase I | 359 | Units | |||||||||||||||||||||||||||||
36.03 | Column | East | Phase I | 387 | Units | |||||||||||||||||||||||||||||
36.04 | Column | West | Phase I | 330 | Units | |||||||||||||||||||||||||||||
36.05 | Column | Enterprise | Phase I | 226 | Units | |||||||||||||||||||||||||||||
36.06 | Column | Ozark | Phase I | 238 | Units | |||||||||||||||||||||||||||||
36.07 | Column | North | Phase I | 219 | Units | |||||||||||||||||||||||||||||
37 | Column | Alvarado Center | 0.0% | 0 | 0 | Phase I | Springing | Soft | 34,179 | Square Feet | 0 | Actual/360 | 0.0503% | No | L(26), Def(91), O(3) | |||||||||||||||||||
38 | Column | Brookwood Apartments | 0.0% | 0 | 0 | Phase I | Springing | Springing | 298 | Units | 0 | Actual/360 | 0.0103% | No | L(26), Def(87), O(7) | |||||||||||||||||||
39 | UBSRES | Wyndham Deerfield Beach Resort | 0.0% | 0 | 0 | Phase I | Springing | Springing | 172 | Rooms | 0 | Actual/360 | 0.0103% | No | L(26), Def(87), O(7) | |||||||||||||||||||
40 | BNYM | Staybridge Suites Brandywine | Springing | PIP Reserve (Monthly: 1/12 of 3% of Total Revenue until PIP completion evidence is received by the Lender) | 0 | 0 | Phase I | Springing | Springing | 110 | Rooms | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | ||||||||||||||||||
41 | Column | Crescentwood Apartments | 0.0% | 0 | 0 | Phase I | Springing | Hard | 216 | Units | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
42 | Column | Hunters Run | Springing | Lease termination payment reserve springing upon receipt of a lease termination payment | 10 | 0 | Phase I | Springing | Springing | 88,646 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(27), Def(90), O(3) | ||||||||||||||||||
43 | UBSRES | Crossroads Shopping Center | 0.0% | 0 | 0 | Phase I | Springing | Hard | 201,343 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
44 | Column | Hyperion Apartments | 0.0% | 0 | 0 | Phase I | Springing | Soft | 243 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) |
Loan Number | Mortgage Loan Seller | Property Name | Ongoing Other Reserve ($) | Other Reserve Description | Grace Period- Default | Grace Period- Late Fee | Environmental Insurance | Cash Management | Lockbox | Units, Pads, Rooms, Sq Ft, Beds | Unit Description | Monthly Debt Service ($) (1) | Interest Accrual Method | Administrative Fee Rate (%) (2) | Ground Lease Y/N | Overlapping Fee Interest? | Prepayment Provision (3) | |||||||||||||||||
45 | Column | Varner Crossing | Springing | Lease Sweep Reserve: (Springing Monthly: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 80,466 | Square Feet | Actual/360 | 0.0578% | No | L(24), Def(92), O(4) | |||||||||||||||||||
46 | BSP | Platinum Multifamily Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 308 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
46.01 | BSP | Camellia Apartments | Phase I | 100 | Units | |||||||||||||||||||||||||||||
46.02 | BSP | Hudson Apartments | Phase I | 132 | Units | |||||||||||||||||||||||||||||
46.03 | BSP | Silverwood Apartments | Phase I | 76 | Units | |||||||||||||||||||||||||||||
47 | Column | Daytona Promenade | Springing | Lease Sweep Period (Monthly: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 145,417 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(90), O(5) | ||||||||||||||||||
48 | BNYM | 2280 Corporate Circle | Springing | Lease Sweep Reserve | 0 | 0 | Phase I | In Place | Hard | 63,959 | Square Feet | 0 | Actual/360 | 0.0678% | No | L(24), Def(92), O(4) | ||||||||||||||||||
49 | UBSRES | StorQuest Indio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 940 | Units | 0 | Actual/360 | 0.0103% | No | L(24), YM1(92), O(4) | |||||||||||||||||||
50 | The Bancorp Bank | Plaza Las Brisas | 0.0% | 0 | 0 | Phase I | In Place | Hard | 85,019 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
51 | BSP | Haggen Grocery El Cajon | 0.0% | 0 | 0 | Phase I | Springing | Hard | 50,607 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
52 | UBSRES | 800 Chester Pike | Springing | Significant Tenant Renewal Funds (Monthly Springing); Credit Reserve Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 85,514 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | ||||||||||||||||||
53 | Column | Tara Hills Apartments | 0.0% | 0 | 0 | Phase I | Springing | Springing | 214 | Units | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
54 | BSP | Country Inn & Suites Baltimore North | Springing | Monthly seasonality reserve payment of $9,260.45 to be deposited on each of the payment dates occurring in the months of February through November, for any period during the loan term commencing on any date on which RevPAR for any month is less than $58.50 and ending at such time as RevPar for 24 continuous months exceeds $60.00. The seasonality reserve amount is subject to a cap of $92,604.50 | 0 | 0 | Phase I | Springing | Springing | 81 | Rooms | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | ||||||||||||||||||
55 | The Bancorp Bank | Cliffbrook Condominiums | 0.0% | 0 | 0 | Phase I | Springing | Springing | 134 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
56 | UBSRES | Monroe Town Center | Springing | Specified Tenant Rollover Funds (Monthly Springing: $16,000); Major Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Soft | 32,241 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
57 | BNYM | Storage Depot II (Scotts Valley Self Storage) | Springing | Ground Rent Reserve (Borrower shall deposit $8,000 per month if the account fall below $16,000) | 0 | 0 | Phase I | Springing | Soft | 694 | Units | 0 | Actual/360 | 0.0578% | Yes | No | L(25), Def(31), O(4) | |||||||||||||||||
58 | BSP | Governor’s Place | 0.0% | 0 | 0 | Phase I | Springing | Springing | 63,846 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
59 | The Bancorp Bank | Walgreens - Waterford | 0.0% | 0 | 0 | Phase I | Springing | Springing | 14,820 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
60 | The Bancorp Bank | Central Crossing | 0.0% | 0 | 0 | Phase I | In Place | Hard | 119,922 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
61 | UBSRES | Chapanoke Square | Springing | Major Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Hard | 89,663 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | ||||||||||||||||||
62 | UBSRES | Mentor Industrial Portfolio | Springing | Major Tenant TI/LC Funds (Monthly Springing) | 0 | 0 | Phase I | Springing | Hard | 208,500 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
62.01 | UBSRES | Eye Lighting | Phase I | 100,000 | Square Feet | |||||||||||||||||||||||||||||
62.02 | UBSRES | Orbis | Phase I | 108,500 | Square Feet | |||||||||||||||||||||||||||||
63 | UBSRES | Bowling Green | Springing | Major Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Soft | 156,344 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | ||||||||||||||||||
64 | The Bancorp Bank | Concord Villas | 0.0% | 0 | 0 | Phase I | Springing | Springing | 54 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
65 | The Bancorp Bank | PA Rite Aid Portfolio | 0.0% | 0 | 0 | Phase I | Springing | Springing | 21,816 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
65.01 | The Bancorp Bank | Rite Aid - Irwin | Phase I | 10,908 | Square Feet | |||||||||||||||||||||||||||||
65.02 | The Bancorp Bank | Rite Aid - Pittsburgh | Phase I | 10,908 | Square Feet | |||||||||||||||||||||||||||||
66 | UBSRES | A Storage Place - La Sierra | 0.0% | 0 | 0 | Phase I | NAP | NAP | 771 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
67 | BSP | Pottstown Pike Retail | 0.0% | 5 | 5 | Phase I | Springing | Springing | 18,624 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
68 | BNYM | Cornerstone Chase Apartments | 0.0% | 0 | 0 | Phase I | Springing | Springing | 166 | Units | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
69 | BSP | Best Western Plus at The Falls | 0.0% | 0 | 0 | Phase I | Springing | Springing | 40 | Rooms | 0 | Actual/360 | 0.0103% | No | L(25), Def(89), O(6) | |||||||||||||||||||
70 | UBSRES | Long Meadow Farms | Springing | Major Tenant Rollover Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Springing | 14,763 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | ||||||||||||||||||
71 | Column | Tiki Tai and Maryland West MHC | 0.0% | 0 | 0 | Phase I | NAP | NAP | 114 | Pads | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
72 | UBSRES | Central Avenue Self Storage | 0.0% | 0 | 0 | Phase I | NAP | NAP | 792 | Units | 0 | Actual/360 | 0.0103% | No | L(27), Def(89), O(4) | |||||||||||||||||||
73 | Column | Granada Village | 0.0% | 0 | 0 | Phase I | Springing | Springing | 282 | Pads | 0 | Actual/360 | 0.0103% | No | L(36), Def(77), O(7) | |||||||||||||||||||
74 | Column | Santa Paula Self Storage | 0.0% | 0 | 0 | Phase I | Springing | Springing | 934 | Units | 0 | Actual/360 | 0.0103% | No | L(26), Def(90), O(4) | |||||||||||||||||||
75 | UBSRES | Renaissance Gardens | 0.0% | 0 | 0 | Phase I | NAP | NAP | 160 | Units | 0 | Actual/360 | 0.0103% | No | L(23), YM1(90), O(7) | |||||||||||||||||||
76 | Column | Jaffa Chattanooga Parks | 0.0% | 0 | 0 | Phase I | Springing | Springing | 201 | Pads | 0 | Actual/360 | 0.0103% | No | L(36), Def(77), O(7) | |||||||||||||||||||
76.01 | Column | Whispering Pines MHP | Phase I | 113 | Pads | |||||||||||||||||||||||||||||
76.02 | Column | Acres of Shade MHP | Phase I | 88 | Pads | |||||||||||||||||||||||||||||
77 | The Bancorp Bank | Atrium Professional Plaza | 0.0% | 0 | 0 | Phase I | Springing | Springing | 19,471 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
78 | The Bancorp Bank | 2143 Winslow Drive | 0.0% | 0 | 0 | Phase I | Springing | Soft | 195 | Units | 0 | Actual/360 | 0.0103% | No | L(27), Def(89), O(4) | |||||||||||||||||||
79 | BSP | Harwood Commons Ground Lease | 0.0% | 0 | 0 | Phase I | NAP | NAP | 11 | Acres | Springing | Actual/360 | 0.0103% | No | L(27), Def(89), O(4) | |||||||||||||||||||
80 | The Bancorp Bank | American Self Storage | 0.0% | 0 | 0 | Phase I | Springing | Hard | 771 | Units | 0 | Actual/360 | 0.0103% | No | L(24), Def(92), O(4) | |||||||||||||||||||
81 | BNYM | Walgreens (Petersburg, VA) | 0.0% | 0 | 0 | Phase I | Springing | Springing | 14,820 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(35), YM1(81), O(4) | |||||||||||||||||||
82 | The Bancorp Bank | Chapel Hill Apartments | 0.0% | 0 | 0 | Phase I | Springing | Springing | 12 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
83 | BSP | Centerpoint Retail | Springing | Lease Sweep Reserve: Monthly deposit of excess cash flow upon the occurrence and continuance of a Cash Sweep Period that exists solely due to the continuance of a Specified Tenant Sweep Period | 0 | 0 | Phase I | Springing | Hard | 7 | Acres | 0 | Actual/360 | 0.0578% | No | L(26), Def(90), O(4) | ||||||||||||||||||
83.01 | BSP | Mi Zarape | Phase I | 1 | Acres | |||||||||||||||||||||||||||||
83.02 | BSP | Papa Vino’s | Phase I | 2 | Acres | |||||||||||||||||||||||||||||
83.03 | BSP | Wendy’s Tim Horton’s | Phase I | 1 | Acres | |||||||||||||||||||||||||||||
83.04 | BSP | Arby’s | Phase I | 1 | Acres | |||||||||||||||||||||||||||||
83.05 | BSP | Dunkin Donuts Baskin Robins | Phase I | 1 | Acres | |||||||||||||||||||||||||||||
84 | UBSRES | A Storage Place - Barton Road | 0.0% | 0 | 0 | Phase I | NAP | NAP | 515 | Units | 0 | Actual/360 | 0.0103% | No | L(25), Def(91), O(4) | |||||||||||||||||||
85 | UBSRES | CVS - Irmo | Springing | Major Tenant Special Reserve Funds (Monthly Springing: Excess Cash Flow) | 0 | 0 | Phase I | Springing | Springing | 10,125 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(27), Def(89), O(4) | ||||||||||||||||||
86 | Column | Cedar Bayou MHP | 0.0% | 0 | 0 | Phase I | Springing | Springing | 111 | Pads | 0 | Actual/360 | 0.0103% | No | L(36), Def(77), O(7) | |||||||||||||||||||
87 | Column | Shoppes at Hiram | 0.0% | 0 | 0 | Phase I | Springing | Springing | 12,600 | Square Feet | 0 | Actual/360 | 0.0503% | No | L(25), Def(92), O(3) | |||||||||||||||||||
88 | Column | The Legacy Plaza | Springing | Lease termination payment reserve springing upon receipt of a lease termination payment | 10 | 0 | Phase I | Springing | Hard | 6,560 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(27), Def(90), O(3) | ||||||||||||||||||
89 | Column | Scenic Ridge | 0.0% | 0 | 0 | Phase I | Springing | Springing | 9,178 | Square Feet | 0 | Actual/360 | 0.0103% | No | L(25), YM2(91), O(4) |
EXHIBIT Q
[Reserved]
Exhibit Q-1 |
EXHIBIT R
FORM OF OPERATING ADVISOR ANNUAL REPORT1
Report Date: Report will be delivered annually (after the occurrence and during the continuance of a Control Termination Event) no later than [INSERT DATE].
Transaction: CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3
Operating Advisor: [Pentalpha Surveillance LLC]
Special Servicer: [Rialto Capital Advisors, LLC]
Controlling Class Representative: [ ]
I. Population of Mortgage Loans that Were Considered in Compiling This Report
[ ] Specially Serviced Loans were transferred to special servicing in the prior calendar year [INSERT YEAR].
(a) [ ] of those Specially Serviced Loans are still being analyzed by the Special Servicer as part of the development of an Asset Status Report.
(b) [ ] of such Specially Serviced Loans had executed Final Asset Status Reports. This report is based only on the Specially Serviced Loans in respect of which a Final Asset Status Report has been issued. The Final Asset Status Reports may not yet be fully implemented.
II. Executive Summary
Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee, as well as the items listed below, the Operating Advisor has undertaken a limited review of the Special Servicer’s operational activities to service certain Specially Serviced Loans in accordance with the Servicing Standard in accordance with the Operating Advisor’s requirements outlined in the Pooling and Servicing Agreement. Based on such review, the Operating Advisor [believes, does not believe] there are material deviations [(i)] from the Servicing Standard [and/or (ii)] from the Special Servicer’s obligations under the Pooling and Servicing Agreement with respect to the resolution or liquidation of Specially Serviced Loans. In addition, the Operating Advisor notes the following: [PROVIDE SUMMARY OF ANY ADDITIONAL MATERIAL INFORMATION].
1 This report is an indicative report and does not reflect the final form of annual report to be used in any particular year. The Operating Advisor will have the ability to modify or alter the organization and content of any particular report, subject to compliance with the terms of the Pooling and Servicing Agreement, including, without limitation, provisions relating to Privileged Information.
Exhibit R-1 |
In connection with the assessment set forth in this report, the Operating Advisor:
Reviewed any assessment of compliance and/or attestation report delivered to the Operating Advisor pursuant to the Pooling and Servicing Agreement with respect to the Special Servicer, and the Asset Status Reports, net present value calculations and Appraisal Reduction calculations and [LIST OTHER REVIEWED INFORMATION] for the following [ ] Specially Serviced Loans: [LIST APPLICABLE MORTGAGE LOANS]
III. Specific Items of Review
1. The Operating Advisor reviewed the following items in connection with the generation of this report: [LIST MATERIAL ITEMS].
2. During the prior year, the Operating Advisor consulted with the Special Servicer regarding its strategy plan for a limited number of issues related to the following Specially Serviced Loans: [LIST]. The Operating Advisor participated in discussions and made strategic observations and recommended alternative courses of action to the extent it deemed such observations and recommendations appropriate. The Special Servicer [agreed with/did not agree with] the recommendations made by the Operating Advisor. Such recommendations generally included the following: [LIST].
3. Appraisal Reduction calculations and net present value calculations:
(a) The Operating Advisor [received/did not receive] information necessary to recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portions of the applicable formula(s) required to be utilized in connection with any Appraisal Reduction or net present value calculations used in the Special Servicer’s determination of the course of action to be taken in connection with the workout or liquidation of a Specially Serviced Loan prior to the utilization by the Special Servicer.
(b) The Operating Advisor [agrees/does not agree] with the [mathematical calculations] [and/or] [the application of the applicable non-discretionary portions of the formula(s)] required to be utilized for such calculation.
(c) After consultation with the Special Servicer to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula(s) in arriving at those mathematical calculations, such inaccuracy [has been/ has not been] resolved.
4. The following is a general discussion of certain concerns raised by the Operating Advisor discussed in this report: [LIST CONCERNS].
5. In addition to the other information presented herein, the Operating Advisor notes the following additional items: [LIST ADDITIONAL ITEMS].
IV. Qualifications Related to the Work Product Undertaken and Opinions Related to this Report
Exhibit R-2 |
1. In accordance with the terms of the Pooling and Servicing Agreement, the Operating Advisor did not participate in, or have access to, the Special Servicer’s and the Controlling Class Representative’s discussion(s) regarding any Specially Serviced Loan. The Operating Advisor does not have authority to speak with the Controlling Class Representative directly pursuant to the Pooling and Servicing Agreement. As such, the Operating Advisor generally relied upon its interaction with the Special Servicer in gathering the relevant information to generate this report.
2. The Special Servicer has the legal authority and responsibility to service the Specially Serviced Loans pursuant to the Pooling and Servicing Agreement. The Operating Advisor has no responsibility or authority to alter the standards set forth therein.
3. Confidentiality and other contractual limitations limit the Operating Advisor’s ability to outline the details or substance of certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Operating Advisor is given access to by the Special Servicer.
4. The Operating Advisor is not empowered to directly communicate with investors pursuant to the Pooling and Servicing Agreement. If investors have questions regarding this report, they should address such questions to the Certificate Administrator through the Certificate Administrator’s Website.
Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement.
[ ] | ||
By: | ||
Name: | ||
Title: |
Exhibit R-3 |
EXHIBIT S
SUB-SERVICING AGREEMENTS
Mortgage Loan Name | Sub-Servicer Name |
Hendry Multifamily Portfolio | Bellwether Enterprise Real Estate Capital, LLC |
Holiday Inn Express – Mill Valley | NorthMarq Capital, LLC |
7101 Sunset Blvd | Grandbridge Real Estate Capital LLC |
HH-Laveen / Laveen Commons | Western Alliance Bank |
Alvarado Center | Holliday Fenoglio Fowler, L.P. |
Varner Crossing | Bernard Financial Corporation d/b/a Bernard Financial Servicing Group |
2280 Corporate Circle | Grandbridge Real Estate Capital LLC |
Storage Depot II (Scotts Valley Self Storage) | NRC Group, Inc. |
Centerpoint Retail | Bernard Financial Corporation d/b/a Bernard Financial Servicing Group |
Shoppes at Hiram | Holliday Fenoglio Fowler, L.P. |
Exhibit S-1 |
EXHIBIT T
FORM OF RECOMMENDATION OF SPECIAL SERVICER TERMINATION
Wells Fargo, National Association,
as Trustee
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services – CSAIL 2015-C3
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: CMBS – CSAIL 2015-C3
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Liat Heller
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Jeff Krasnoff
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Niral Shah
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Adam Singer
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 |
Ladies and Gentlemen:
This letter is delivered pursuant to Section 6.08(b) of the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee, on behalf of the holders of CSAIL 2015-C3 Commercial Mortgage Trust,
Exhibit T-1 |
Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Certificates”) regarding the recommendation for the replacement of the Special Servicer set forth herein. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.
Based upon our review of the Special Servicer’s operational practices conducted pursuant to and in accordance with the Pooling and Servicing Agreement, it is our assessment that [________], in its current capacity as Special Servicer, is not [performing its duties under the Pooling and Servicing Agreement][acting in accordance with the Servicing Standard]. The following factors support our assessment: [________].
Based upon such assessment, we hereby recommend that [_______] be removed as Special Servicer and that [________] be appointed its successor in such capacity.
Very truly yours, | ||
[The Operating Advisor] | ||
By: | ||
Name: | ||
Title: |
Dated:
Exhibit T-2 |
EXHIBIT
U
ADDITIONAL FORM 10-D DISCLOSURE
The parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 10.03 of the Pooling and Servicing Agreement to disclose to the Depositor, the Certificate Administrator and each Other Depositor and Other Exchange Act Reporting Party to which such information is relevant for Exchange Act reporting purposes, any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of net operating income, financial statements, budgets and/or rent rolls required to be provided in connection with Item 6 below, possession) (in each case, after complying with its affirmative obligations, if any, under the Pooling and Servicing Agreement to obtain such information) of such information (other than information as to such party itself which such party is obligated to provide). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific written notice to the contrary from the Depositor or Mortgage Loan Sellers. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this CSAIL 2015-C3 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-D | Party Responsible |
Item 1: Distribution and Pool Performance Information
Any information required by Item 1121 of Regulation AB which is NOT included on the Distribution Date Statement
|
Certificate Administrator Depositor Master
Servicer Special
Servicer |
[Item 1A: Asset-Level Information]* | [Master Servicer Special Servicer (only with respect to Specially Serviced Loans)]* |
Item 2: Legal Proceedings
per Item 1117 of Regulation AB
|
(i) All parties to the Pooling and Servicing Agreement (as to themselves), (ii) any other Reporting Servicer (as to itself), (iii) the Trustee, the Master Servicer and the Special Servicer as to the Trust (in the case of the Master Servicer and the Special Servicer, to be reported by the party controlling such litigation), (iv) each Sponsor as to itself and as to each 1110(b) originator and 1100(d)(1) party relating to a Mortgage Loan sold by such Sponsor to the Depositor, (v) the |
Exhibit U-1 |
Depositor (as to any party under Item 1100(d)(1) of Regulation AB) | |
Item 3: Sale of Securities and Use of Proceeds | Depositor |
Item 4: Defaults Upon Senior Securities | Certificate
Administrator Trustee |
Item 5 – Submission of Matters to a Vote of Security Holders | Certificate Administrator |
Item 6: Significant Obligors of Pool Assets | Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) Special Servicer (as to REO Properties) |
[Item 7: Change in Sponsor Interest in the Securities]** | [Each Sponsor as to itself and its affiliates]** |
[Item 7][Item 8]**: Significant Enhancement Provider Information | Depositor |
[Item 8][Item 9]**: Other Information | Any party responsible for disclosure items on Form 8-K to the extent of such items |
[Item 9][Item 10]**: Exhibits | Certificate Administrator (as to the Distribution Date Statement) Depositor |
* Effective from and after November 23, 2016.
** Effective from and after November 23, 2015.
Exhibit U-2 |
EXHIBIT
V
ADDITIONAL FORM 10-K DISCLOSURE
The parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 10.04 of the Pooling and Servicing Agreement to disclose to the Depositor, the Certificate Administrator, and any Other Depositor and Other Exchange Act Reporting Party to which such disclosure is relevant for Exchange Act reporting purposes, any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of net operating income, financial statements, budgets and/or rent rolls required to be provided in connection with Item 1112(b) below, possession) (in each case, after complying with its affirmative obligations, if any, under the Pooling and Servicing Agreement to obtain such information) of such information (other than information as to such party itself which such party is obligated to provide). Each of the Certificate Administrator. the Trustee, the Master Servicer and the Special Servicer shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific written notice to the contrary from the Depositor or Mortgage Loan Sellers. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this CSAIL 2015-C3 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-K | Party Responsible |
Item 1B: Unresolved Staff Comments |
Depositor |
Item 9B: Other Information | Any party responsible for disclosure items on Form 8-K to the extent of such items |
Item 15: Exhibits, Financial Statement Schedules | Certificate Administrator Depositor |
Additional Item: Disclosure per Item 1112(b) of Regulation AB |
Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) Special Servicer (as to REO Properties) |
Additional Item: Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB |
Depositor |
Additional Item:
Disclosure per Item 1117 of Regulation AB
|
(i) All parties to the Pooling and Servicing Agreement (as to themselves), (ii) any other Reporting Servicer (as to itself), (iii) the Trustee, the Certificate Administrator, the Master Servicer, the Depositor and the Special Servicer as to the Trust (in the case of the Master Servicer, the Depositor and the Special Servicer, to be reported by the party controlling such |
Exhibit V-1 |
litigation), (iv) each Sponsor as to itself and as to each 1110(b) originator and 1100(d)(1) party relating to a Mortgage Loan sold by such Sponsor to the Depositor, (v) the Depositor (as to any party under Item 1100(d)(1) of Regulation AB) | |
Additional Item: Disclosure per Item 1119 of Regulation AB
|
(i) All parties to the Pooling and Servicing Agreement as to themselves (in the case of the Master Servicer, only as to 1119(a) affiliations with Significant Obligors identified in the Pooling and Servicing Agreement, the Trustee, the Certificate Administrator, the Special Servicer or a sub-servicer described in 1108(a)(3) and, in the case of the Special Servicer, only as to 1119(a) affiliations with Significant Obligors identified in the Pooling and Servicing Agreement, the Trustee, the Certificate Administrator, the Master Servicer or a sub-servicer described in 1108(a)(3)), (ii) the Depositor (as to the Trust), (iii) each Sponsor as to itself and as to each 1110(b) originator and 1100(d)(1) party relating to a Mortgage Loan sold by such Sponsor to the Depositor, (iv) the Depositor as to the enhancement or support provider, (v) the Depositor (as to any party under Item 1100(d)(1) of Regulation AB) |
Exhibit V-2 |
EXHIBIT
W
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
Wells Fargo Bank, National Association,
as Certificate Registrar |
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS), Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Series 2015-C3
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer, the undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone number: [ ]; email address: [ ].
Exhibit W-1 |
[NAME OF PARTY], | ||
as [role] | ||
By: | ||
Name: | ||
Title: |
Exhibit W-2 |
EXHIBIT
X
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”), issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. |
I, [identifying the certifying individual], certify that:
1. | I have reviewed this annual report on Form 10-K, and all reports on Form 10-D required to be filed in respect of period covered by this annual report on Form 10-K, of the Trust (the “Exchange Act Periodic Reports”); |
2. | Based on my knowledge, the Exchange Act Periodic Reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act Periodic Reports; |
4. | Based on my knowledge and the servicer compliance statement(s) required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act Periodic Reports, the master servicer and the special servicer have fulfilled their obligations under the Pooling and Servicing Agreement in all material respects; and |
5. | All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K. |
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: [Master Servicer][Special Servicer][Trustee][Certificate
Exhibit X-1 |
Administrator][Operating Advisor][Other Master Servicer][Other Special Servicer][Other Trustee][Other Certificate Administrator][Other Operating Advisor]
Date: _________________________
[Signature] | |
[Title] |
Exhibit X-2 |
EXHIBIT
Y-1
FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY THE CERTIFICATE ADMINISTRATOR
Re: CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”), issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee.
I, [identifying the certifying individual], a [title] of [CERTIFICATE ADMINISTRATOR], certify to Credit Suisse First Boston Mortgage Securities Corp. and its officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20__, and all reports on Form 10-D required to be filed in respect of periods covered by that annual report on Form 10-K, of the Trust (the “Exchange Act Periodic Reports”);
2. Based on my knowledge, the distribution information in Exchange Act Periodic Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by that report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing and other information required to be provided by the Certificate Administrator pursuant to the Pooling and Servicing Agreement for inclusion in the Exchange Act Periodic Reports is included in such reports; and
4. The report on assessment of compliance with servicing criteria for asset-backed securities and the related attestation report on assessment of compliance with servicing criteria for asset-backed securities required to be delivered by the Certificate Administrator in accordance with Section 10.08 and Section 10.09 of the Pooling and Servicing Agreement discloses all material instances of noncompliance with the Relevant Servicing Criteria.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: [list applicable transaction parties].
Date: _________________________
Exhibit Y-1-1 |
[ ] | ||
By: | ||
[Name] |
Exhibit Y-1-2 |
EXHIBIT
Y-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICER
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”), issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee. |
I, [identify the certifying individual], a [title] of [MASTER SERVICER], certify to Credit Suisse First Boston Mortgage Securities Corp. and their officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification in delivering the certification required by the Pooling and Servicing Agreement relating to the Certificates (capitalized terms used herein without definition shall have the meanings assigned to such terms in the Pooling and Servicing Agreement), that:
(1) | I have (or a Servicing Officer under my supervision has) reviewed the servicing reports relating to the Trust delivered by the Master Servicer to the Certificate Administrator covering the fiscal year 20__; |
(2) | Based on my knowledge, and assuming the accuracy of the statements required to be made in the corresponding certificate of the Special Servicer (to the extent such statements are relevant to the statements made in this certification by the Master Servicer), the servicing information in these reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these servicing reports; |
(3) | Based on my knowledge, and assuming the accuracy of the statements required to be made in the corresponding certificate of the Special Servicer (to the extent such statements are relevant to the statements made in this certification by the Master Servicer), the servicing information required to be provided in these servicing reports to the Certificate Administrator by the Master Servicer under the Pooling and Servicing Agreement is included in the servicing reports delivered by the Master Servicer to the Certificate Administrator; |
(4) | I am, or an employee under my supervision is, responsible for reviewing the activities performed by the Master Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the compliance review conducted in preparing the servicer |
Exhibit Y-2-1 |
compliance statement required under Section 10.07 of the Pooling and Servicing Agreement with respect to the Master Servicer, and except as disclosed in such compliance statement delivered by the Master Servicer under Section 10.07 of the Pooling and Servicing Agreement, the Master Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects in the year to which such review applies; and |
(5) | The report on assessment of compliance with servicing criteria for asset-backed securities and the related attestation report on assessment of compliance with servicing criteria for asset-backed securities required to be delivered in accordance with Section 10.08 and Section 10.09 of the Pooling and Servicing Agreement discloses all material instances of noncompliance with the Relevant Servicing Criteria. |
Further, notwithstanding the foregoing certifications, the Master Servicer does not make any certification under the foregoing clauses 1 through 5 that is in turn dependent upon information required to be provided by any sub-servicer acting under a sub-servicing agreement that the Master Servicer entered into in connection with the issuance of the Certificates, or upon the performance by any such sub-servicer of its obligations pursuant to any such sub-servicing agreement, in each case beyond the respective backup certifications actually provided by such sub-servicer to the Master Servicer with respect to the information that is subject of such certification.
Date: _________________________
[ ] | ||
By: | ||
[Name] |
Exhibit Y-2-2 |
EXHIBIT
Y-3
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE SPECIAL SERVICER
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”), issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee. |
I, [identify the certifying individual], a [title] of [SPECIAL SERVICER], certify to Credit Suisse First Boston Mortgage Securities Corp. and their officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification in delivering the certification required by the Pooling and Servicing Agreement relating to the Certificates (capitalized terms used herein without definition shall have the meanings assigned to such terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge, the servicing information in the servicing reports or information relating to the Trust delivered by the Special Servicer to the Master Servicer covering the fiscal year 20__, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these servicing reports;
2. Based on my knowledge, the servicing information required to be provided to the Master Servicer by the Special Servicer under the Pooling and Servicing Agreement for inclusion in the reports to be filed by the Certificate Administrator is included in the servicing reports delivered by the Special Servicer to the Master Servicer;
3. I am, or an employee under my supervision is, responsible for reviewing the activities performed by the Special Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the compliance review conducted in preparing the servicer compliance statement required under Section 10.07 of the Pooling and Servicing Agreement with respect to the Special Servicer, and except as disclosed in such compliance statement delivered by the Special Servicer under Section 10.07 of the Pooling and Servicing Agreement, the Special Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects in the year to which such review applies; and
4. The report on assessment of compliance with servicing criteria for asset-backed securities and the related attestation report on assessment of compliance with servicing criteria for asset-backed securities required to be delivered in accordance with Section 10.08 and
Exhibit Y-3-1 |
Section 10.09 of the Pooling and Servicing Agreement discloses all material instances of noncompliance with the Relevant Servicing Criteria.
Date: _________________________
[ ] | ||
By: | ||
[Name] | ||
[Title] |
Exhibit Y-3-2 |
EXHIBIT
Y-4
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE OPERATING ADVISOR
Re: | CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”), issued pursuant to the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor, Wells Fargo Bank, National Association, as Certificate Administrator, and Wells Fargo Bank, National Association, as Trustee. |
I, [identify the certifying individual], a [title] of [OPERATING ADVISOR], certify to Credit Suisse First Boston Mortgage Securities Corp. and their officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification in delivering the Sarbanes-Oxley Certification required by Section 10.05 of the Pooling and Servicing Agreement relating to the Certificates (capitalized terms used herein without definition shall have the meanings assigned to such terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge, the information required by the Pooling and Servicing Agreement to be provided to the Certificate Administrator by the Operating Advisor covering the fiscal year 20__, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;
2. Based on my knowledge, the information required to be provided to the Certificate Administrator by the Operating Advisor under the Pooling and Servicing Agreement for inclusion in the Exchange Act reports to be filed by the Certificate Administrator is included in the reports delivered by the Operating Advisor to the Certificate Administrator;
3. I am, or an officer under my supervision is, responsible for reviewing the activities performed by the Operating Advisor under the Pooling and Servicing Agreement and based upon my knowledge the Operating Advisor has, except as described in any information provided to the Certificate Administrator by the Operating Advisor covering the fiscal year 20[__], fulfilled its obligations under the Pooling and Servicing Agreement in all material respects in the year to which such review applies; and
4. The report on assessment of compliance with servicing criteria for asset-backed securities and the related attestation report on assessment of compliance with servicing criteria for asset-backed securities required to be delivered in accordance with Section 10.08 and
Exhibit Y-4-1 |
Section 10.09 of the Pooling and Servicing Agreement discloses all material instances of noncompliance with the Relevant Servicing Criteria.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: [list applicable transaction parties].
Date: _________________________
[ ]
By: | ||
[Name] | ||
[Title] |
Exhibit Y-4-2 |
EXHIBIT
Z
FORM 8-K DISCLOSURE INFORMATION
The parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 10.06 of the Pooling and Servicing Agreement to disclose to the Depositor, the Certificate Administrator, and each Other Depositor and Other Exchange Act Reporting Party to which the particular Form 8-K Disclosure Information is relevant for Exchange Act reporting purposes, the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge (after complying with its affirmative obligations, if any, under the Pooling and Servicing Agreement to obtain such information) of such information (other than information as to such party itself which such party is obligated to provide). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific written notice to the contrary from the Depositor or Mortgage Loan Sellers. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this CSAIL 2015-C3 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 8-K | Party Responsible |
Item 1.01- Entry into a Material Definitive Agreement | Master Servicer, Special
Servicer and the Trustee (in the case of the Master Servicer, Special Servicer and the Trustee, only as to agreements
it is a party to or entered into on behalf of the Trust) Depositor |
Item 1.02- Termination of a Material Definitive Agreement | Master Servicer, Special Servicer and the Trustee (in the case of the Master Servicer, Special Servicer and the Trustee, only as to agreements it is a party to or entered into on behalf of the Trust) Certificate Administrator
(other than as to agreements to which the Depositor (and no other party to the Pooling and Servicing Agreement) is a party) |
Item 1.03- Bankruptcy or Receivership | Depositor Each Sponsor as to itself |
Item 2.04- Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement | Depositor Certificate Administrator |
Exhibit Z-1 |
Item 3.03- Material Modification to Rights of Security Holders | Certificate Administrator |
Item 5.03- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year | Depositor |
Item 5.06 – Change in Shell Company Status | Depositor |
Item 5.07 – Submission of Matters to a Vote of Security Holders | Depositor |
Item 5.08 – Shareholder Director Nomination | Depositor |
Item 6.01- ABS Informational and Computational Material | Depositor |
Item 6.02- Change of Master Servicer, Special Servicer, Trustee or Certificate Administrator | Master Servicer (as to itself or a servicer retained by it) Special Servicer (as to itself or a servicer retained by it) Trustee |
Item 6.03- Change in Credit Enhancement or External Support | Depositor Certificate Administrator |
Item 6.04- Failure to Make a Required Distribution | Certificate Administrator |
Item 6.05- Securities Act Updating Disclosure | Depositor |
Item 7.01- Regulation FD Disclosure | Depositor |
Item 8.01- Other Events | Depositor |
Item 9.01- Financial Statements and Exhibits | Depositor |
Exhibit Z-2 |
EXHIBIT
AA-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
{insert address}
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
Wells Fargo Bank, National Association, a national banking association, incorporated and existing under the laws of the United
States, having its usual place of business at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951 as Trustee (the “Trustee”)
hereby constitutes and appoints Midland Loan Services, a Division of PNC Bank, National Association, (“Master Servicer”),
and in its name, aforesaid Attorney-In-Fact, by and through any officer appointed by the [Board of Directors] of Master Servicer,
to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate
for the tasks described in the items (1) through (7) below; provided however, that the documents described below may only be executed
and delivered by such Attorney-In-Fact if such documents are required or permitted under that Pooling and Servicing Agreement dated
as of August 1, 2015 (the “Agreement”) by and among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Pentalpha Surveillance LLC, as Operating Advisor,
Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer (the “Master Servicer”),
Rialto Capital Advisors, LLC, as Special Servicer (the “Special Servicer”), and no power is granted hereunder
to take any action that would be adverse to the interests of Wells Fargo Bank, National Association.
This Limited Power of Attorney is being issued in connection with Master Servicer’s responsibilities to service certain mortgage loans (the “Loans”) held by the Trustee. These Loans are secured by collateral comprised of mortgages, deeds of trust, deeds to secure debt and other forms of security instruments (collectively the “Security Instruments”) encumbering any and all real and personal property delineated therein (the “Property”) and the Notes secured thereby. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.
1. Demand, sue for, recover, collect and receive each and every sum of money, debt, account and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by the Trustee, and to use or take any lawful means for recovery by legal process or otherwise, including but not limited to the substitution of the trustee serving under a deed of trust, the preparation and issuance of statements of breach, notices of default, and/or notices of sale, accepting deeds in lieu of foreclosure, evicting (to the extent allowed by federal, state or local laws) and foreclosing on the properties under the Security Instruments by judicial or non-judicial foreclosure, actions for temporary restraining orders, injunctions, appointments of receiver, suits for waste, fraud and any and all other tort, contractual or other claims of whatever nature, including execution of any evidentiary affidavits or verifications in support thereof, as may be necessary or advisable in any bankruptcy action, state or federal suit or any other action.
Exhibit AA-1 |
2. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee in litigation and to resolve any litigation where the Master Servicer has an obligation to defend the Trustee, including but not limited to dismissal, termination, cancellation, rescission and settlement.
3. Transact business of any kind regarding the Loans and the Properties.
4. Obtain an interest in the Mortgage Loans, Properties and/or building thereon, as the Trustee’s act and deed, to contract for, purchase, receive and take possession and evidence of title in and to the property and/or to secure payment of a promissory note or performance of any obligation or agreement.
5. Execute, complete, indorse or file bonds, notes, mortgages, deeds of trust and other contracts, agreements and instruments regarding the Mortgagors and/or the Property, including but not limited to the execution of estoppel certificates, financing statements, continuation statements, releases, satisfactions, assignments, loan modification agreements, payment plans, waivers, consents, amendments, forbearance agreements, loan assumption agreements, subordination agreements, property adjustment agreements, management agreements, listing agreements, purchase and sale agreements, non-disturbance and attornment agreements, leasing agreements and other instruments pertaining to mortgages or deeds of trust, and execution of deeds and associated instruments, if any, conveying the Property, in the interest of the Trustee.
6. Endorse on behalf of the undersigned all checks, drafts and/or other negotiable instruments made payable to the undersigned and draw upon, replace, substitute, release or amend letters of credit as Property securing the Loans.
7. Such other actions and file such other instruments and certifications as are reasonably necessary to complete or accomplish the Master Servicer’s duties and responsibilities under the Agreement.
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do as of [date].
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
The Master Servicer hereby agrees to indemnify and hold Wells Fargo Bank, National Association, as Trustee, and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by Wells Fargo Bank, National Association, as Trustee, and its directors, officers, employees and agents by reason or result of the misuse of this Limited Power of Attorney by the Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of Wells Fargo Bank, National Association, as Trustee under the Agreement.
Exhibit AA-1-2 |
This Limited Power of Attorney may not be assigned by the Master Servicer without the consent of Wells Fargo Bank, National Association.
This Limited Power of Attorney is effective as of the date below and shall continue to remain in full force and effect until (a) revoked in writing by the Trustee, (b) the termination, resignation or removal of the Trustee as trustee of the Trust, or (c) the termination, resignation or removal of the Master Servicer as master servicer of the Trust.
Witness my hand and seal this day of , 20[ ].
NO CORPORATE SEAL | Wells Fargo Bank, National Association, as Trustee, for CSAIL 2015-C3 Commercial Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2015-C3 | |||
By: | ||||
Witness: | , Vice President | |||
By: | ||||
Witness: | , Vice President | |||
Attest: | , Trust Officer | |||
Exhibit AA-1-3 |
State of Delaware}
County of ____}
On ____________________, before me, _______________________Notary Public, personally appeared ________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary signature |
Exhibit AA-1-4 |
EXHIBIT
AA-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
{insert address}
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States and having an office at 9062 Old Annapolis Road, Columbia, Maryland 21045, not in its individual capacity but solely as Trustee (“Trustee”), hereby constitutes and appoints Special Servicer, and in its name, aforesaid Attorney-In-Fact, by and through any duly appointed authorized representative appointed by the Board of Directors of (“Special Servicer”), to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate for the tasks described in the items (1) through (11) below; provided however, that the documents described below may only be executed and delivered by such Attorneys-In-Fact if such documents are required or permitted under the terms of the Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”) between Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer (the “Master Servicer”), Rialto Capital Advisors, LLC, as Special Servicer (the “Special Servicer”), Wells Fargo Bank, National Association, as Certificate Administrator, Paying Agent and Custodian, Wells Fargo Bank, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor, on behalf of CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3 (the “Trust”) and no power is granted hereunder to take any action that would be adverse to the interests of Wells Fargo Bank, National Association.
1. | Demand, sue for, recover, collect and receive each and every sum of money, debt, account and interest (which now is, or hereafter shall become due and payable) belonging to or claimed by the Trustee, and to use or take any lawful means for recovery by legal process or otherwise, including but not limited to the substitution of trustee serving under a Deed of Trust, the preparation and issuance of statements of breach, notices of default, and/or notices of sale, accepting deeds in lieu of foreclosure, evicting (to the extent allowed by federal, state or local laws) and foreclosing on the properties under the Security Instruments by judicial or non-judicial foreclosure, actions for temporary restraining orders, injunctions, appointments of receiver, suits for waste, fraud and any and all other tort, contractual or other claims of whatever nature, including execution of any evidentiary affidavits or verifications in support thereof, as may be necessary or advisable in any bankruptcy action, state or federal suit or any other action. |
2. | Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee in litigation and to resolve any litigation where the Special Servicer has an obligation to defend the Trustee, including but not limited to dismissal, termination, cancellation, rescission and settlement. |
Exhibit AA-2-1 |
3. | Transact business of any kind to preserve the Trustee’s interest in the Mortgage Loans and the Mortgaged Properties. |
4. | Obtain an interest in the Mortgage Loans, Mortgaged Properties and/or buildings thereon, as the Trustee’s act and deed, to contract for, purchase, receive and take possession and evidence of title in and to the property and/or to secure payment of a promissory note or performance of any obligation or agreement. |
5. | Execute, complete, indorse or file bonds, notes, Mortgages, Deeds of Trust and other contracts, agreements and instruments regarding the Borrowers, the Mortgage Loans and/or the Mortgaged Properties, including but not limited to the execution of estoppel certificates, financing statements, continuation statements, releases, satisfactions, assignments, loan modification agreements, payment plans, waivers, consents, amendments, forbearance agreements, loan assumption agreements, subordination agreements, property adjustment agreements, management agreements, listing agreements, purchase and sale agreements, non-disturbance and attornment agreements, leasing agreements and other instruments pertaining to Mortgages or Deeds of Trust, and execution of deeds and associated instruments, if any, conveying the Mortgaged Properties, in the interest of the Trustee. |
6. | Endorse on behalf of the undersigned all checks, drafts and/or other negotiable instruments made payable to the undersigned and draw upon, replace, substitute, release or amend letters of credit as Property securing the Mortgage Loans. |
7. | For Special Servicer: Execute any document or perform any act described in items (3), (4), and (5) in connection with the termination of any Trust as necessary to transfer ownership of the affected Loans to the entity (or its designee or assignee) possessing the right to obtain ownership of the Loans. |
8. | Such other actions and file such other instruments and certifications as are reasonably necessary to complete or accomplish the Special Servicer’s duties and responsibilities under the Pooling and Servicing Agreement. |
9. | Subordinate the lien of a mortgage, deed of trust, or deed to secure debt (i) for the purpose of refinancing Loans, where applicable, or (ii) to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain, including but not limited to the execution of partial satisfactions and releases and partial reconveyances reasonably required for such purpose, and the execution or requests to the trustees to accomplish the same. |
10. | Convey the Property to the mortgage insurer, or close the title to the Property to be acquired as real estate owned, or convey title to real estate owned property (“REO Property”). |
11. | Execute and deliver the following documentation with respect to the sale of REO Property acquired through a foreclosure or deed-in-lieu of foreclosure, including, without limitation: listing agreements; purchase and sale agreements; grant / limited or special warranty / quit claim deeds or any other deed, but not general warranty deeds, causing the transfer of title of the property to a party contracted to purchase same; escrow instructions; and any and all documents necessary to effect the transfer of REO Property. |
Exhibit AA-2-2 |
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do as of [date].
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
The Special Servicer hereby agrees to indemnify and hold Wells Fargo Bank, National Association, as Trustee, and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by the Trustee and its directors, officers, employees and agents by reason or result of the misuse of this Limited Power of Attorney by the Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Pooling and Servicing Agreement or the earlier resignation or removal of Wells Fargo Bank, National Association, as Trustee under the Agreement.
IN WITNESS WHEREOF, Wells Fargo Bank, National Association, as Trustee for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust Commercial Mortgage Pass Through Certificates, Series 2015-C3 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.
Wells Fargo Bank, National Association, | ||||
as Trustee for the benefit of the registered Holders of CSAIL 2015-C3 Commercial Mortgage Trust Commercial Mortgage Pass Through Certificates, Series 2015-C3 | ||||
By: | ||||
Name: | ||||
Title: | ||||
Witness: | ||||
Witness: | ||||
Exhibit AA-2-3 |
State of Delaware}
County of ____}
On ________________________, before me, _________________________________Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary signature |
Exhibit AA-2-4 |
EXHIBIT
BB
CLASS A-SB SCHEDULED PRINCIPAL BALANCE
See Annex F to the Prospectus Supplement
Exhibit BB-1 |
EXHIBIT CC-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Credit Suisse First Boston
Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
Re: CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Depositor, that:
1. The Transferor is the lawful owner of the right to receive the Excess Servicing Fees (the “Excess Servicing Fee Right”), with the full right to transfer the Excess Servicing Fee Right free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of the Excess Servicing Fee Right pursuant to the Securities Act or any state securities laws.
Exhibit CC-1-1 |
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
Exhibit CC-1-2 |
EXHIBIT CC-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Credit Suisse First Boston
Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
Midland Loan Services, a
Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President – Division Head
Re: CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as the Depositor and the Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess Servicing Fees (the “Excess Servicing Fee Right”) for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing Fee Right has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee, Certificate Administrator or the Certificate Registrar is obligated so to register or qualify the Excess Servicing Fee Right, and (c) the Excess Servicing Fee Right may not be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and (A) the Depositor has received a certificate from the prospective transferor substantially in the form attached as Exhibit CC-1 to the Pooling and Servicing Agreement, and
Exhibit CC-2-1 |
(B) each of Midland Loan Services, a Division of PNC Bank, National Association and the Depositor have received a certificate from the prospective transferee substantially in the form attached as Exhibit CC-2 to the Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer the Excess Servicing Fee Right or any interest therein except in compliance with the provisions of Section 3.12 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any Person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any Person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any Person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act, would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Excess Servicing Fee Right pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any Person to act, in any manner set forth in the foregoing sentence with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Excess Servicing Fee Right and any payments thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d) the nature, performance and servicing of the Mortgage Loans, and (e) all related matters that it has requested.
6. The Transferee is (a) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or (b) an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Excess Servicing Fee Right; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.
7. The Transferee agrees (i) to keep all information relating to the Trust, the Trust Fund and the parties to the Pooling and Servicing Agreement, and made available to it, confidential, (ii) not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificate pursuant to the Securities Act, and (iii) not to disclose
Exhibit CC-2-2 |
such information, and to cause its officers, directors, partners, employees, agents or representatives (collectively, “Representatives”) not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than the Transferee’s auditors, legal counsel and regulators, except to the extent such disclosure is required by law, court order or other legal requirement or to the extent such information is of public knowledge at the time of disclosure by such Person or has become generally available to the public other than as a result of disclosure by such Person; provided, however, that the Transferee or any of its Representatives may provide all or any part of such information to any other Person who is contemplating an acquisition of the Excess Servicing Fee Right if, and only if, such other Person (x) confirms in writing such prospective acquisition and (y) agrees in writing to keep such information confidential, not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificates pursuant to the Securities Act and not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such other Persons’ auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing Fee Right shall not have any rights under the Pooling and Servicing Agreement except as set forth in Section 3.12 of the Pooling and Servicing Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent provided in the Pooling and Servicing Agreement.
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
Exhibit CC-2-3 |
EXHIBIT DD
FORM OF NOTICE AND CERTIFICATION REGARDING DEFEASANCE OF MORTGAGE LOAN
To: | Moody’s Investors Service, Inc. 7 World Trade Center New York, New York 10007 Attention: Commercial Mortgage Surveillance Group Fax number: (212) 553-0300 |
Kroll Bond Rating Agency, Inc. 845 Third Avenue, 4th Floor New York, New York 10022 Attention: CMBS Surveillance Fax number: (646) 731-2395 |
Morningstar Credit Ratings, LLC
220 Gibraltar Road, Suite 300
Horsham, Pennsylvania 19044
Attention: CMBS Surveillance
E-mail: cmbsratings@morningstar.com
Fitch Ratings, Inc. One State Street Plaza, 28th Floor New York, New York 10004 Attention: US CMBS Surveillance |
From: | Midland Loan Services, a Division of PNC Bank, National Association, in its capacity as Master Servicer (the “Master Servicer”) under the Pooling and Servicing Agreement dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer. |
Date: | ____________, 20___ |
Re: | ____________ Commercial Mortgage Pass-Through Certificates, Series 2015-C3 Mortgage Loan (the “Mortgage Loan”) heretofore secured by real property known as ____________. |
Capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE UNDERSIGNED BASED UPON DUE DILIGENCE
Exhibit DD-1 |
CONSISTENT WITH THE SERVICING STANDARD SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE “SERVICING STANDARD”), AND (B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR STANDARD OF CARE GREATER THAN THE DUTIES OF SERVICER UNDER THE POOLING AND SERVICING AGREEMENT AND THE SERVICING STANDARD.
We hereby notify you and confirm that each of the following is true, subject to those exceptions, if any, set forth on Exhibit A hereto, which exceptions the Master Servicer has determined, consistent with the Servicing Standard, will have no material adverse effect on the Mortgage Loan or the defeasance transaction:
1. The Mortgagor has consummated a defeasance of the Mortgage Loan of the type checked below:**
____ a full defeasance of the entire outstanding principal balance ($____________) of the Mortgage Loan; or
____ a partial defeasance of a portion ($____________) of the Mortgage Loan that represents ___% of the entire principal balance of the Mortgage Loan ($____________).
2. The defeasance was consummated on ____________, 20__.
3. The defeasance was completed in all material respects in accordance with the conditions for defeasance specified in the Loan Documents and in accordance with the Servicing Standard.
[Include the following if there is pari passu or AB debt:
4. In accordance with the Loan Documents, the defeasance occurred such that:
____ Promissory Notes A and B were defeased simultaneously in their entirety; or
____ Promissory Note B was paid off in full.]
5. To the knowledge of the Master Servicer any other debt related to the Mortgage Loan (including mezzanine debt, senior secured debt, pari passu debt or subordinate secured debt was either paid off in full or defeased. Such debt consists of the following: [Describe debt and holder of the debt and if it was paid off or defeased].
6. The defeasance collateral consists only of one or more of the following: (i) direct debt obligations of the U.S. Treasury, (ii) direct debt obligations of the Federal National Mortgage Association, (iii) direct debt obligations of the Federal Home Loan Mortgage Corporation, (iv) interest-only direct debt obligations of the Resolution Funding Corporation, (v) consolidated debt obligations of the Federal Home Loan Bank or (vi) securities covered by the Federal Deposit Insurance Corporation’s (the “FDIC”) Temporary Liquidity Guarantee Program (“TLGP”). Based upon a written report from an independent certified accountant, such
Exhibit DD-2 |
defeasance collateral consists of securities that (i) if they include a principal obligation, the principal due at maturity cannot vary or change, (ii) provide for interest at a fixed rate and (iii) are not callable prior to their respective maturity dates. In addition, if the defeasance collateral contains any TLGP securities, then:
· | Such securities are eligible under TLGP; |
· | The master servicer (and the trustee, if it serves as the back-up advancing agent for the transaction) has waived its right to (i) collect interest on advances made on behalf of the borrower holding TLGP securities, and (ii) collect for expenses incurred in making demand on the FDIC; |
· | If the TLGP debt is to be used to satisfy a balloon payment, a reserve conforming to the criteria for eligible accounts was funded with a minimum of 90 days interest on the defeasance collateral to cover potential delays in receipt of the balloon payment; |
· | The TLGP securities mature before June 30, 2012; and |
· | The master servicer’s error and omissions insurance policy covers losses to the CMBS trust caused by the master servicer’s failure to make timely demand on the FDIC’s guarantee. |
7. After the defeasance, the defeasance collateral will be owned by an entity (the “Defeasance Obligor”) that: (i) is the original Mortgagor, (ii) is a Single-Purpose Entity (as described in S&P’s criteria), (iii) is subject to restrictions in its organizational documents substantially similar to those contained in the organizational documents of the original Mortgagor with respect to bankruptcy remoteness and single purpose, (iv) has been designated as the Defeasance Obligor by the originator of the Mortgage Loan pursuant to the terms of the Loan Documents, or (v) has previously received confirmation from Standard & Poor’s that the organizational documents of such Defeasance Obligor conform with applicable Standard & Poor’s criteria. The Defeasance Obligor owns no assets other than defeasance collateral and (only in the case of the original Mortgagor) real property securing one or more Mortgage Loans included in the pool under the Pooling and Servicing Agreement (the “Pool”).
8. If such Defeasance Obligor (together with its affiliates) holds more than one defeased loan, it does not (together with its affiliates) hold defeased loans aggregating more than $35 Million or more than five percent (5%) of the aggregate certificate balance of the Certificates, as of the date of the most recent Paying Agent’s Monthly Certificateholder Report received by the Master Servicer (the “Current Report”), except to the extent the Defeasance Obligor is of the type specified in paragraph 7(v) above or the original Loan Documents do not limit the amount of defeased loans that it may hold.
9. The defeasance documents require that the defeasance collateral be credited to an eligible account (as defined in S&P’s criteria) that must be maintained as a securities account by a securities intermediary that is at all times an Eligible Institution (as defined in S&P’s criteria). The securities intermediary may reinvest proceeds of the defeasance
Exhibit DD-3 |
collateral only in Permitted Investments (as defined in the Pooling and Servicing Agreement or as defined in the documents evidencing defeasance).
10. The securities intermediary is obligated to pay from the proceeds of the defeasance collateral, directly to the Master Servicer’s collection account, all scheduled payments on the Mortgage Loan or, in a partial defeasance, the portion of such scheduled payments attributed to the allocated loan amount for the real property defeased including any defeasance premiums set forth in the loan documents (the “Scheduled Payments”).
11. The Master Servicer received written confirmation from an independent certified public accountant stating that (i) revenues from the defeasance collateral (without taking into account any earnings on reinvestment of such revenues) will be sufficient to timely pay each of the Scheduled Payments including the payment in full of the Mortgage Loan (or the allocated portion thereof in connection with a partial defeasance) on its Maturity Date (or, in the case of an ARD Loan, on its Anticipated Repayment Date), (ii) except as otherwise disclosed in the written report from an independent certified public accountant, [and disclosed below,] the revenues received in any month from the defeasance collateral will be applied to make Scheduled Payments within four (4) months after the date of receipt, (iii) the defeasance collateral is not callable prior to their respective maturity dates, and (iv) interest income from the defeasance collateral to the Defeasance Obligor in any tax year will not exceed such Defeasance Obligor’s interest expense for the Mortgage Loan (or the allocated portion thereof in a partial defeasance) for such year, other than in the year in which the Maturity Date or Anticipated Repayment Date will occur, when interest income will exceed interest expense.
12. The Master Servicer received opinions of counsel that, subject to customary qualifications, (i) the defeasance will not cause the Trust to fail to qualify as a REMIC for purpose of the Internal Revenue Code, (ii) the agreements executed by the Mortgagor and the Defeasance Obligor in connection with the defeasance are enforceable against them in accordance with their terms, [and] (iii) the Trustee will have a perfected, first priority security interest in the defeasance collateral.
13. The agreements executed in connection with the defeasance (i) prohibit subordinate liens against the defeasance collateral, (ii) provide for payment from sources other than the defeasance collateral of all fees and expenses of the securities intermediary for administering the defeasance and the securities account and all fees and expenses of maintaining the existence of the Defeasance Obligor, (iii) permit release of surplus defeasance collateral and earnings on reinvestment to the Defeasance Obligor only after the Mortgage Loan has been paid in full, (iv) include representations and/or covenants of the Mortgagor and/or securities intermediary substantially as set forth on Exhibit B hereto, (v) provide for survival of such representations; and (vi) do not permit waiver of such representations and covenants.
14. The outstanding principal balance of the Mortgage Loan immediately before the defeasance was less than $35,000,000 and less than 5% of the aggregate certificate balance of the Certificates as of the date of the Current Report. The Mortgage Loan is not one of the ten (10) largest loans in the Pool as of the date of the Current Report.
Exhibit DD-4 |
15. Copies of all material agreements, instruments, organizational documents, opinions of counsel, accountant’s report and other items delivered in connection with the defeasance will be provided to you upon request.
16. The individual executing this notice is an authorized officer or a servicing officer of the Master Servicer.
IN WITNESS WHEREOF, the Master Servicer has caused this notice to be executed as of the date captioned above.
[MASTER SERVICER] | ||
By: | ||
Name: | ||
Title: |
Exhibit DD-5 |
EXHIBIT A
Exceptions
Exhibit DD-6 |
EXHIBIT B
Sample Perfected Security Interest Representations
General:
1. [The defeasance agreements] create a valid and continuing security interest (as defined in the applicable UCC) in the [Collateral, Securities Account and Deposit Account] in favor of the [Secured Party], which security interest is prior to all other [Liens], and is enforceable as such as against creditors of and purchasers from [Debtor].
Note that “Collateral” means securities, permitted investments and other assets credited to securities accounts.
1. The [Deposit Account] constitutes a “deposit account” within the meaning of the applicable UCC.
2. All of the [Collateral] has been and will have been credited to a [Securities Account]. The securities intermediary for the [Securities Account] has agreed to treat all assets credited to the [Securities Account] as “financial assets” within the meaning of the UCC.
Creation:
1. The Defeasance Account Agreement provides that the Pledgee shall have “control” (as defined in the applicable UCC).
2. [Debtor] has received all consents and approvals required by the terms of the [Collateral] to the transfer to the [Secured Party] of its interest and rights in the [Collateral] hereunder.
Perfection:
1. [Debtor] has caused or will have caused, within ten (10) days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted in the [Collateral, Securities Account and Deposit Account] to the [Secured Party] hereunder.
2. [Debtor] has delivered to [Secured Party] a fully executed agreement pursuant to which the securities intermediary or the account bank has agreed to comply with all instructions originated by the [Secured Party] relating to the [Securities Account] or directing disposition of the funds in the [Deposit Account] without further consent by the [Debtor].
3. [Debtor] has taken all steps necessary to cause the securities intermediary to identify in its records the [Secured Party] as the person having a security entitlement against the securities intermediary in the [Securities Account].
4. To the extent a Deposit Account exists, [Debtor] has taken all steps necessary to cause [Secured Party] to become the account holder of the [Deposit Account].
Exhibit DD-7 |
Priority:
1. Other than the security interest granted to the [Secured Party] pursuant to this Agreement, [Debtor] has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the [Collateral, Securities Account and Deposit Account]. [Debtor] has not authorized the filing of and is not aware of any financing statements against [Debtor] that include a description of collateral covering the [Collateral, Securities Account and Deposit Account] other than any financing statement relating to the security interest granted to the [Secured Party] hereunder or that has been terminated. Debtor is not aware of any judgment or tax lien filings against [Debtor].
2. The [Securities Account and Deposit Account] are not in the name of any person other than the [Debtor] or the [Secured Party]. The [Debtor] has not consented to the securities intermediary of any [Securities Account] or the account bank of any [Deposit Account] to comply with entitlement orders or instructions of any person other than the [Secured Party].
Exhibit DD-8 |
EXHIBIT EE
FORM OF NOTICE REGARDING
NON-SERVICED MORTGAGE LOAN
[Date]
[Other Trustee] [Address Line 1] [Address Line 2] Attn: [Contact Person] |
[Other Certificate Administrator] [Address Line 1] [Address Line 2] Attn: [Contact Person] |
[Other Master Servicer] [Address Line 1] [Address Line 2] Attn: [Contact Person] |
[Other Special Servicer] [Address Line 1] [Address Line 2] Attn: [Contact Person] |
[Other Operating Advisor] [Address Line 1] [Address Line 2] Attn: [Contact Person] |
Re: | [Other Securitization Trust] |
Ladies and Gentlemen:
Reference is hereby made to the [Pooling and Servicing Agreement, dated as of March 1, 2015 (the “Other Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, KeyBank National Association, as Master Servicer, C-III Asset Management LLC, as Special Servicer, Park Bridge Lender Services LLC, as Operating Advisor, and Wells Fargo Bank, National Association, as Certificate Administrator and Trustee][Pooling and Servicing Agreement, dated as of May 1, 2015 (the “Other Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Wilmington Trust, National Association, as Trustee, Wells Fargo Bank, National Association, as Certificate Administrator, and Park Bridge Lender Services LLC, as Operating Advisor] [Pooling and Servicing Agreement, dated as of [_______] (the “Other Pooling and Servicing Agreement”), by and among [_____], as Depositor, [_______], as Certificate Administrator and as Trustee, [________], as Master Servicer and [_______] as Special Servicer]. Capitalized terms used but not defined herein shall have the meanings given to them in the Other Pooling and Servicing Agreement.
The undersigned is the certificate administrator under the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “C3 PSA”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC
Exhibit EE-1 |
Bank, National Association, as Master Servicer (the “C3 Master Servicer”), Rialto Capital Advisors, LLC, as special servicer (the “C3 Special Servicer”), Pentalpha Surveillance LLC, as operating advisor, Wells Fargo Bank, National Association, as certificate administrator (the “C3 Certificate Administrator”), and Wells Fargo Bank, National Association, as Trustee (the “C3 Trustee”) pursuant to which the CSAIL 2015-C3 Commercial Mortgage Trust (the “C3 Trust”) was established and [a][the] [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio] Companion Loan was transferred to the C3 Trust as of August 18, 2015 (the “Closing Date”).
The undersigned hereby notifies you that, as of the Closing Date:
1. Wells Fargo Bank, National Association, as Trustee under the C3 PSA, is the holder of [a][the] [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio] Companion Loan.
2. You are directed to remit to Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer under the C3 PSA, all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer under the C3 PSA, all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of the related [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio] Companion Loan, under the Other Pooling and Servicing Agreement, and the [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio], as applicable.
3. The contact information for the C3 Trustee, the C3 Certificate Administrator, the C3 Master Servicer, the C3 Special Servicer, and the Companion Loan Holder Representative with respect to the [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio] Companion Loan are as follows:
C3 Trustee:
|
Wells Fargo Bank, National Association 9602 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services, CSAIL 2015-C3 | |
C3 Certificate Administrator: | Wells Fargo Bank, National Association Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479-0113 Attention: CMBS – CSAIL 2015-C3 | |
C3 Master Servicer: | Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head |
Exhibit EE-2 |
C3 Special Servicer: |
Rialto Capital Advisors, LLC
Rialto Capital Advisors, LLC
Rialto Capital Advisors, LLC | |
The [Soho-Tribeca Grand Hotel Portfolio][Westfield Trumbull][Westfield Wheaton][Sterling & Milagro][WPC Department Store Portfolio] Companion Loan Holder Representative |
RREF II CMBS AIV, LP
RREF II CMBS AIV, LP |
4. The C3 Trust is subject to the reporting requirements of the Securities Exchange Act of 1934, as it may be amended from time to time.
5. [FOR CSAIL 2015-C1: The Soho-Tribeca Grand Hotel Portfolio Mortgage Loan and the Westfield Trumbull Mortgage Loan][FOR CSAIL 2015-C2: The Westfield Wheaton Mortgage Loan and the Sterling & Milagro Mortgage Loan] [are][are not] Significant Obligors with respect to the C3 Trust.
6. A copy of an executed version of the C3 PSA will be available upon request.
Exhibit EE-3 |
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
Exhibit EE-4 |
EXHIBIT FF
MORTGAGE LOANS WITH ESCROWS, RESERVES, HOLDBACKS AND RELATED LETTERS OF CREDIT EXCEEDING 10% OF THE INITIAL PRINCIPAL BALANCE
Hampton Inn – Point Loma
Hilton Arden West
Exhibit FF-1 |
EXHIBIT GG
FORM OF NOTICE REGARDING MEZZANINE LOAN DEFAULT
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services, CSAIL 2015-C3
Attention: CMBS – CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3
In accordance with the definition of “Investor Certification” in the Pooling and Servicing Agreement, dated as of August 1, 2015 (the “Pooling and Servicing Agreement”), by and among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, and Rialto Capital Advisors, LLC, as Special Servicer, with respect to the above-referenced certificates, the undersigned hereby notifies you that it has received notice that the following Mezzanine Lender has accelerated the Mezzanine Loan secured by equity interests in the Mortgagor identified below and/or have commenced foreclosure proceedings against the related mezzanine collateral:
Mezzanine Lender | Mortgagor Name | Mortgaged Property Name |
[_______] | [_______] | [_______] |
As set forth in the Pooling and Servicing Agreement, you are required to cause such Mezzanine Lender to re-submit any Investor Certification previously delivered by such Mezzanine Lender, prior to allowing it access to the information on the Certificate Administrator’s website, to the extent such information is accessible only to Privileged Persons.
Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
Rialto Capital Advisors, LLC | ||
Name: | ||
Title: |
Exhibit GG-1 |
EXHIBIT HH
MORTGAGE LOANS AS TO WHICH A NOTE REGISTER IS TO BE MAINTAINED
Hendry Multifamily Portfolio
American Self Storage Portfolio
Exhibit HH-1 |
Exhibit 4.3
EXECUTION VERSION
MORGAN STANLEY CAPITAL I INC. |
as Depositor, |
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
as Master Servicer, |
LNR PARTNERS, LLC, |
as General Special Servicer, |
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
as Excluded Mortgage Loan Special Servicer, |
PENTALPHA SURVEILLANCE LLC, |
as Trust Advisor, |
WILMINGTON TRUST, NATIONAL ASSOCIATION, |
as Trustee, |
WELLS FARGO BANK, NATIONAL ASSOCIATION, |
as Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian |
POOLING AND SERVICING AGREEMENT |
Dated as of June 1, 2015 |
MORGAN STANLEY BANK OF AMERICA MERRILL LYNCH TRUST 2015-C23, |
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES |
SERIES 2015-C23 |
TABLE OF CONTENTS
Page | ||||
ARTICLE I | ||||
DEFINITIONS; | ||||
CALCULATIONS AND CERTAIN OTHER MATTERS | ||||
Section 1.1 | Definitions | 6 | ||
Section 1.2 | Calculations Respecting Mortgage Loans | 115 | ||
Section 1.3 | Calculations Respecting Accrued Interest | 118 | ||
Section 1.4 | Interpretation | 118 | ||
Section 1.5 | ARD Loans | 119 | ||
Section 1.6 | Certain Matters with Respect to Loan Pairs, A/B Whole Loans and Non-Serviced Loan Combinations | 120 | ||
Section 1.7 | Rating Agency Confirmations | 125 | ||
ARTICLE II | ||||
DECLARATION OF TRUST; | ||||
ISSUANCES OF CERTIFICATES | ||||
Section 2.1 | Conveyance of Mortgage Loans | 128 | ||
Section 2.2 | Acceptance by Trustee | 131 | ||
Section 2.3 | Sellers’ Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties | 134 | ||
Section 2.4 | Representations and Warranties | 142 | ||
Section 2.5 | Conveyance of Interests | 144 | ||
Section 2.6 | Certain Matters Relating to Non-Serviced Mortgage Loans | 144 | ||
ARTICLE III | ||||
THE CERTIFICATES | ||||
Section 3.1 | The Certificates | 144 | ||
Section 3.2 | Registration | 145 | ||
Section 3.3 | Transfer and Exchange of Certificates | 146 | ||
Section 3.4 | Mutilated, Destroyed, Lost or Stolen Certificates | 152 | ||
Section 3.5 | Persons Deemed Owners | 152 | ||
Section 3.6 | Access to List of Certificateholders’ Names and Addresses | 152 | ||
Section 3.7 | Book-Entry Certificates | 153 | ||
Section 3.8 | Notices to Clearing Agency | 157 | ||
Section 3.9 | Definitive Certificates | 157 | ||
Section 3.10 | Exchanges of Exchangeable Certificates | 158 | ||
ARTICLE IV | ||||
ADVANCES | ||||
Section 4.1 | P&I Advances by Master Servicer | 160 |
-i- |
Page | ||||
Section 4.1A | P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans | 161 | ||
Section 4.2 | Servicing Advances | 162 | ||
Section 4.3 | Advances by the Trustee | 163 | ||
Section 4.4 | Evidence of Nonrecoverability | 163 | ||
Section 4.5 | Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan | 165 | ||
Section 4.6 | Reimbursement of Advances and Advance Interest | 166 | ||
ARTICLE V | ||||
ADMINISTRATION OF THE TRUST | ||||
Section 5.1 | Collections | 167 | ||
Section 5.2 | Withdrawals of Funds in the Collection Account | 171 | ||
Section 5.3 | Distribution Account and Reserve Accounts | 181 | ||
Section 5.4 | Certificate Administrator Reports | 183 | ||
Section 5.5 | Certificate Administrator Tax Reports | 190 | ||
Section 5.6 | Access to Certain Information | 190 | ||
Section 5.7 | Exchange Act Rule 17g-5 Procedures | 192 | ||
ARTICLE VI | ||||
DISTRIBUTIONS | ||||
Section 6.1 | Distributions Generally | 199 | ||
Section 6.2 | Compliance with Withholding Requirements | 200 | ||
Section 6.3 | REMIC I | 200 | ||
Section 6.4 | REMIC II | 201 | ||
Section 6.5 | REMIC III | 202 | ||
Section 6.6 | Allocation of Collateral Support Deficits | 209 | ||
Section 6.7 | Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls | 210 | ||
Section 6.8 | Adjustment of Master Servicing Fees | 211 | ||
Section 6.9 | Appraisal Reductions | 211 | ||
Section 6.10 | Prepayment Premiums | 215 | ||
Section 6.11 | Allocation of Trust Advisor Expenses | 217 | ||
ARTICLE VII | ||||
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR | ||||
Section 7.1 | Duties of the Trustee, the Custodian and the Certificate Administrator | 221 | ||
Section 7.2 | Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator | 223 | ||
Section 7.3 | The Trustee, the Custodian and the Certificate Administrator Not Liable for Certificates or Interests or Mortgage Loans | 224 | ||
Section 7.4 | The Trustee, the Custodian and the Certificate Administrator May Own Certificates | 226 |
-ii- |
Page | ||||
Section 7.5 | Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator | 226 | ||
Section 7.6 | Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator | 227 | ||
Section 7.7 | Successor Trustee, Custodian or Certificate Administrator | 231 | ||
Section 7.8 | Merger or Consolidation of Trustee, Custodian or Certificate Administrator | 232 | ||
Section 7.9 | Appointment of Co-Trustee, Separate Trustee, Agents or Custodian | 233 | ||
Section 7.10 | Authenticating Agents | 234 | ||
Section 7.11 | Indemnification of Trustee, the Custodian and the Certificate Administrator | 235 | ||
Section 7.12 | Fees and Expenses of Trustee, the Custodian and the Certificate Administrator | 238 | ||
Section 7.13 | Collection of Moneys | 238 | ||
Section 7.14 | Trustee To Act; Appointment of Successor | 239 | ||
Section 7.15 | Notification to Holders | 241 | ||
Section 7.16 | Representations and Warranties of the Trustee, the Custodian and the Certificate Administrator | 241 | ||
Section 7.17 | Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee, the Custodian and the Certificate Administrator | 244 | ||
Section 7.18 | Capacities | 244 | ||
ARTICLE VIII | ||||
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS | ||||
Section 8.1 | Servicing Standard; Servicing Duties | 245 | ||
Section 8.2 | Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer | 247 | ||
Section 8.3 | Master Servicer’s General Power and Duties | 248 | ||
Section 8.4 | Sub-Servicing | 256 | ||
Section 8.5 | Master Servicer May Own Certificates | 257 | ||
Section 8.6 | Maintenance of Hazard Insurance, Other Insurance, Taxes and Other | 258 | ||
Section 8.7 | Enforcement of Due-on-Sale Clauses; Assumption Agreements; Due-on-Encumbrance Clause | 260 | ||
Section 8.8 | Custodian to Cooperate; Release of Trust Mortgage Files | 264 | ||
Section 8.9 | Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for the Benefit of the Certificateholders | 265 | ||
Section 8.10 | Servicing Compensation | 266 | ||
Section 8.11 | Master Servicer Reports; Account Statements | 269 | ||
Section 8.12 | Reserved | 271 | ||
Section 8.13 | Reserved | 271 | ||
Section 8.14 | CREFC® Operating Statement Analysis Reports Regarding the Mortgaged Properties | 271 | ||
Section 8.15 | Other Available Information and Certain Rights of the Master Servicer | 273 | ||
Section 8.16 | Rule 144A Information | 274 | ||
Section 8.17 | Inspections | 275 | ||
Section 8.18 | Modifications, Waivers, Amendments, Extensions and Consents | 276 |
-iii- |
Page | ||||
Section 8.19 | Specially Serviced Mortgage Loans | 278 | ||
Section 8.20 | Representations, Warranties and Covenants of the Master Servicer | 279 | ||
Section 8.21 | Merger or Consolidation | 280 | ||
Section 8.22 | Resignation of Master Servicer | 281 | ||
Section 8.23 | Assignment or Delegation of Duties by Master Servicer | 282 | ||
Section 8.24 | Limitation on Liability of the Master Servicer and Others | 283 | ||
Section 8.25 | Indemnification; Third-Party Claims | 285 | ||
Section 8.26 | Loan Registry | 287 | ||
Section 8.27 | Compliance with REMIC Provisions and Grantor Trust Provisions | 287 | ||
Section 8.28 | Termination | 288 | ||
Section 8.29 | Procedure Upon Termination | 291 | ||
Section 8.30 | Certain Matters with Respect to Joint Mortgage Loans | 293 | ||
ARTICLE IX | ||||
ADMINISTRATION AND SERVICING OF | ||||
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER | ||||
Section 9.1 | Duties of Special Servicer | 297 | ||
Section 9.2 | Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer | 299 | ||
Section 9.3 | Special Servicer General Powers and Duties | 299 | ||
Section 9.4 | Sub-Servicers | 302 | ||
Section 9.5 | “Due-on-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; Due-on-Encumbrance Clauses | 302 | ||
Section 9.6 | Custodian to Cooperate; Release of Mortgage Files | 307 | ||
Section 9.7 | Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee | 308 | ||
Section 9.8 | Representations, Warranties and Covenants of the Special Servicer | 309 | ||
Section 9.9 | Standard Hazard, Flood and Commercial General Liability Policies | 310 | ||
Section 9.10 | Presentment of Claims and Collection of Proceeds | 312 | ||
Section 9.11 | Compensation to the Special Servicer | 313 | ||
Section 9.12 | Realization Upon Defaulted Loans | 316 | ||
Section 9.13 | Foreclosure | 318 | ||
Section 9.14 | Operation of REO Property | 319 | ||
Section 9.15 | Sale of REO Property | 322 | ||
Section 9.16 | Realization on Collateral Security | 324 | ||
Section 9.17 | Sale of Defaulted Loans | 324 | ||
Section 9.18 | A/B Whole Loans | 328 | ||
Section 9.19 | Reserved | 328 | ||
Section 9.20 | Merger or Consolidation | 328 | ||
Section 9.21 | Resignation of Special Servicer | 329 | ||
Section 9.22 | Assignment or Delegation of Duties by Special Servicer | 330 | ||
Section 9.23 | Limitation on Liability of the Special Servicer and Others | 331 | ||
Section 9.24 | Indemnification; Third-Party Claims | 334 | ||
Section 9.25 | Reserved | 336 | ||
Section 9.26 | Special Servicer May Own Certificates | 336 |
-iv- |
Page | ||||
Section 9.27 | Tax Reporting | 336 | ||
Section 9.28 | Application of Funds Received | 336 | ||
Section 9.29 | Compliance with REMIC Provisions and Grantor Trust Provisions | 337 | ||
Section 9.30 | Termination | 337 | ||
Section 9.31 | Procedure Upon Termination | 343 | ||
Section 9.32 | Certain Special Servicer Reports | 344 | ||
Section 9.33 | Special Servicer to Cooperate with the Master Servicer, the Trustee, the Custodian and the Certificate Administrator | 349 | ||
Section 9.34 | Litigation Control | 351 | ||
Section 9.35 | Excluded Mortgage Loan Notices | 354 | ||
ARTICLE X | ||||
CERTAIN MATTERS RELATING TO THE CONTROLLING CLASS | ||||
REPRESENTATIVE, THE TRUST ADVISOR AND THE HOLDERS | ||||
OF THE SERVICED B NOTES AND SERVICED COMPANION LOANS | ||||
Section 10.1 | Selection and Removal of the Controlling Class Representative | 354 | ||
Section 10.2 | Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders | 356 | ||
Section 10.3 | Rights and Powers of Controlling Class Representative | 357 | ||
Section 10.4 | Controlling Class Representative and Trust Advisor Contact with Master Servicer and Special Servicer | 360 | ||
Section 10.5 | Appointment, Duties and Compensation of the Trust Advisor | 360 | ||
Section 10.6 | Representations, Warranties and Covenants of the Trust Advisor | 366 | ||
Section 10.7 | Merger or Consolidation of the Trust Advisor | 367 | ||
Section 10.8 | Resignation of Trust Advisor | 368 | ||
Section 10.9 | Assignment or Delegation of Duties by Trust Advisor | 369 | ||
Section 10.10 | Limitation on Liability of the Trust Advisor and Others | 369 | ||
Section 10.11 | Indemnification; Third-Party Claims | 371 | ||
Section 10.12 | Termination of the Trust Advisor | 372 | ||
Section 10.13 | Rights of the Holders of a Serviced B Note and Serviced Companion Loan | 376 | ||
Section 10.14 | Rights of Non-Directing Holders | 377 | ||
ARTICLE XI | ||||
PURCHASE AND TERMINATION OF THE TRUST | ||||
Section 11.1 | Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans | 378 | ||
Section 11.2 | Procedure Upon Termination of Trust | 381 | ||
Section 11.3 | Additional Trust Termination Requirements | 382 | ||
ARTICLE XII | ||||
REMIC AND GRANTOR TRUST ADMINISTRATION | ||||
Section 12.1 | REMIC Administration | 383 | ||
Section 12.2 | Prohibited Transactions and Activities | 389 |
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Page | ||||
Section 12.3 | Modifications of Mortgage Loans | 389 | ||
Section 12.4 | Liability with Respect to Certain Taxes and Loss of REMIC Status | 389 | ||
Section 12.5 | Grantor Trust | 390 | ||
Section 12.6 | Grantor Trust Reporting Requirements | 391 | ||
ARTICLE XIII | ||||
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE | ||||
Section 13.1 | Intent of the Parties; Reasonableness | 392 | ||
Section 13.2 | Information to be Provided by the Master Servicer, the Special Servicer, the Custodian, any Primary Servicer and the Certificate Administrator | 393 | ||
Section 13.3 | Filing Obligations | 395 | ||
Section 13.4 | Form 10-D Filings | 395 | ||
Section 13.5 | Form 10-K Filing | 398 | ||
Section 13.6 | Sarbanes-Oxley Certification | 400 | ||
Section 13.7 | Form 8-K Filings | 401 | ||
Section 13.8 | Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports | 403 | ||
Section 13.9 | Annual Compliance Statements | 404 | ||
Section 13.10 | Annual Reports on Assessment of Compliance with Servicing Criteria | 406 | ||
Section 13.11 | Annual Independent Public Accountants’ Servicing Report | 408 | ||
Section 13.12 | Indemnification | 409 | ||
Section 13.13 | Amendments | 413 | ||
Section 13.14 | Exchange Act Report Signatures | 413 | ||
Section 13.15 | Significant Obligors | 414 | ||
ARTICLE XIV | ||||
MISCELLANEOUS PROVISIONS | ||||
Section 14.1 | Binding Nature of Agreement | 415 | ||
Section 14.2 | Entire Agreement | 415 | ||
Section 14.3 | Amendment | 415 | ||
Section 14.4 | GOVERNING LAW | 418 | ||
Section 14.5 | Notices | 418 | ||
Section 14.6 | Severability of Provisions | 421 | ||
Section 14.7 | Indulgences; No Waivers | 421 | ||
Section 14.8 | Headings Not to Affect Interpretation | 421 | ||
Section 14.9 | Benefits of Agreement | 421 | ||
Section 14.10 | Reserved | 422 | ||
Section 14.11 | Counterparts | 422 | ||
Section 14.12 | Intention of Parties | 422 | ||
Section 14.13 | Recordation of Agreement | 423 | ||
Section 14.14 | Rating Agency Surveillance Fees | 424 | ||
Section 14.15 | Waiver of Jury Trial | 424 | ||
Section 14.16 | Submission to Jurisdiction | 424 | ||
Section 14.17 | Limitation on Rights of Holders | 424 |
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Page | ||||
Section 14.18 | Acts of Holders of Certificates | 425 | ||
Section 14.19 | Compliance with Patriot Act | 427 | ||
Section 14.20 | Precautionary Trust Indenture Act Provisions | 427 | ||
Section 14.21 | Limitation on Liability of the Depositor and Others | 427 |
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EXHIBITS AND SCHEDULES | ||
EXHIBIT A-1 | Form of Class A-1 Certificate | |
EXHIBIT A-2 | Form of Class A-2 Certificate | |
EXHIBIT A-3 | Form of Class A-SB Certificate | |
EXHIBIT A-4 | Form of Class A-3 Certificate | |
EXHIBIT A-5 | Form of Class A-4 Certificate | |
EXHIBIT A-6 | Form of Class X-A Certificate | |
EXHIBIT A-7 | Form of Class A-S Certificate | |
EXHIBIT A-8 | Form of Class B Certificate | |
EXHIBIT A-9 | Form of Class PST Certificate | |
EXHIBIT A-10 | Form of Class C Certificate | |
EXHIBIT A-11 | Form of Class X-B Certificate | |
EXHIBIT A-12 | Form of Class X-FG Certificate | |
EXHIBIT A-13 | Form of Class X-H Certificate | |
EXHIBIT A-14 | Form of Class D Certificate | |
EXHIBIT A-15 | Form of Class E Certificate | |
EXHIBIT A-16 | Form of Class F Certificate | |
EXHIBIT A-17 | Form of Class G Certificate | |
EXHIBIT A-18 | Form of Class H Certificate | |
EXHIBIT A-19 | Form of Class V Certificate | |
EXHIBIT A-20 | Form of Class R Certificate | |
EXHIBIT B-1 | Form of Initial Certification (Section 2.2) | |
EXHIBIT B-2 | Form of Final Certification (Section 2.2) | |
EXHIBIT C | Form of Request for Release | |
EXHIBIT D-1 | Form of Transferor Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-2A | Form I of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-2B | Form II of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c)) | |
EXHIBIT D-3 | Form of Transfer Certificate to an Interest in a Rule 144A Global Certificate | |
EXHIBIT E-1 | Form of Transferee Affidavit and Agreement (Class R) (Section 3.3(e)) | |
EXHIBIT E-2 | Form of Transferor Affidavit and Agreement (Class R) (Section 3.3(e)) | |
EXHIBIT F | Form of Regulation S Certificate | |
EXHIBIT G | Form of Exchange Certification (“Exchange Certificate”) | |
EXHIBIT H | Form of Euroclear Bank or Clearstream Bank Certificate (Section 3.7(d)) | |
EXHIBIT I | Form of Investor Certification | |
EXHIBIT J | Form of NRSRO Certification (“NRSRO Certification”) | |
EXHIBIT K | Form of Distribution Date Statement (“Distribution Date Statement”) | |
EXHIBIT L | Form of Trust Advisor Annual Report | |
EXHIBIT M | Form of Financial Market Publishers Certification (Section 5.4(h)) and CREFC® Certification (Section 5.4(k)) | |
EXHIBIT N-1 | Reserved | |
EXHIBIT N-2 | Reserved | |
EXHIBIT O-1 | Form of Power of Attorney to Master Servicer (Section 8.3(c)) |
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EXHIBIT O-2 | Form of Power of Attorney to Special Servicer (Section 9.3(a)) | |
EXHIBIT P-1 | Form of Sarbanes-Oxley Certification (Section 13.6) | |
EXHIBIT P-2 | Reporting Servicer Form of Performance Certification (Section 13.6) | |
EXHIBIT Q | Form of Exchange Letter | |
EXHIBIT R | [Reserved] | |
EXHIBIT S-1 | Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT S-2 | Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT T | Form of Note Holder Certification | |
SCHEDULE I | BANA Loan Schedule | |
SCHEDULE II | MSMCH Loan Schedule | |
SCHEDULE III | CIBC Loan Schedule | |
SCHEDULE IV | SMF III Loan Schedule | |
SCHEDULE V | List of Mortgage Loans Secured by the Interest of the Related Mortgagor under a Ground Lease, Space Lease or Air Rights Lease (Section 8.3(i)) | |
SCHEDULE VI | List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a) | |
SCHEDULE VII | Certain Escrow Accounts for Which a Required Repair is Outstanding Under Section 5.1(g) | |
SCHEDULE VIII | Mortgage Loans as to Which a Lender Register is to be Maintained | |
SCHEDULE IX | Mortgage Loans Secured by Mortgaged Properties Covered by an Environmental Insurance Policy | |
SCHEDULE X | Servicing Criteria to be Addressed in Assessment of Compliance | |
SCHEDULE XI | Additional Form 10-D Disclosure | |
SCHEDULE XII | Additional Form 10-K Disclosure | |
SCHEDULE XIII | Form 8-K Disclosure Information | |
SCHEDULE XIV | Additional Disclosure Notification | |
SCHEDULE XV | Seller Sub-Servicers | |
SCHEDULE XVI | Letters of Credit | |
SCHEDULE XVII | Class A-SB Planned Principal Balance | |
SCHEDULE XVIII | Hospitality Properties Subject to Franchise, Management or Similar Agreement | |
SCHEDULE XIX | Designated Escrow/Reserve Mortgage Loans |
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THIS POOLING AND SERVICING AGREEMENT is dated as of June 1, 2015 (this “Agreement”) between MORGAN STANLEY CAPITAL I INC., a Delaware corporation, as depositor (the “Depositor”), Wells fargo bank, NATIONAL ASSOCIATION, as master servicer (in such capacity, the “Master Servicer”), LNR Partners, LLC, as general special servicer (the “General Special Servicer”), wells fargo bank, national association, as special servicer with respect to Excluded Mortgage Loans (in such capacity, the “Excluded Mortgage Loan Special Servicer”), pentalpha surveillance llc, as trust advisor (the “Trust Advisor”), WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “Trustee”), and Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), certificate registrar, authenticating agent and custodian (in such capacity, the “Custodian”).
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans from Morgan Stanley Mortgage Capital Holdings LLC, as seller (“MSMCH”), Bank of America, National Association, as seller (“BANA”), CIBC Inc., as seller (“CIBC”), and Starwood Mortgage Funding III LLC, as seller (“SMF III”), and will be the owner of the Mortgage Loans and the other property being conveyed by it to the Trustee for inclusion in the Trust which is hereby created. On the Closing Date, the Depositor will acquire: (i) the REMIC I Regular Interests and, to the extent they represent the REMIC I Residual Interest, the Class R Certificates as consideration for its transfer to the Trust of the Mortgage Loans (other than any Excess Interest payable thereon) and the other property constituting REMIC I; (ii) the REMIC II Regular Interests and, to the extent they represent the REMIC II Residual Interest, the Class R Certificates as consideration for its transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III Regular Certificates, the EC REMIC III Regular Interests and, to the extent they represent the REMIC III Residual Interest, the Class R Certificates as consideration for its transfer of the REMIC II Regular Interests to the Trust; (iv) the Exchangeable Certificates as consideration for its transfer of the EC REMIC III Regular Interests to the Trust; and (v) the Class V Certificates as consideration for its transfer to the Trust of the right to receive Excess Interest. The Depositor has duly authorized the execution and delivery of this Agreement to provide for the foregoing and the issuance of (A) the REMIC I Regular Interests and, to the extent they represent the REMIC I Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and, to the extent they represent the REMIC II Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC II, (C) the REMIC III Regular Certificates, the EC REMIC III Regular Interests and, to the extent they represent the REMIC III Residual Interest, the Class R Certificates, representing in the aggregate the entire beneficial ownership of REMIC III, (D) the Class A-S Certificates, representing in the aggregate the entire beneficial ownership of the Class A-S Specific Grantor Trust Assets, (E) the Class B Certificates, representing in the aggregate the entire beneficial ownership of the Class B Specific Grantor Trust Assets, (F) the Class C Certificates, representing in the aggregate the entire beneficial ownership of the Class C Specific Grantor Trust Assets, (G) the Class PST Certificates, representing in the aggregate the entire beneficial ownership of the Class PST Specific Grantor Trust Assets and (H) the Class V Certificates, representing in the aggregate the entire beneficial ownership of the Class V Specific Grantor Trust Assets. Excess Interest received on the
Mortgage Loans shall be held in the Grantor Trust for the benefit of the Holders of the Class V Certificates. All covenants and agreements made by the Depositor herein with respect to the Mortgage Loans and the other property constituting the Trust are for the benefit of the holders of the REMIC I Regular Interests, the holders of the REMIC II Regular Interests, the Holders of the REMIC III Regular Certificates, the holders of the EC REMIC III Regular Interests, the Holders of the Exchangeable Certificates and the Holders of the Class V and Class R Certificates. The parties hereto are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A Senior Certificates, the Exchangeable Certificates and the Class X-A Certificates (collectively, the “Registered Certificates”) were offered for sale pursuant to the Depositor’s prospectus dated October 1, 2013 (the “Prospectus”), as supplemented by the free writing prospectuses dated June 1, 2015, June 4, 2015, June 4, 2015 and June 5, 2015, respectively (collectively, the “Free Writing Prospectus”, and together with the Prospectus, the “Preliminary Prospectus”), and as further supplemented by the final prospectus supplement dated the Pricing Date (the “Prospectus Supplement”, and together with the Prospectus, the “Final Prospectus”). The Class X-B, Class X-FG, Class X-H, Class D, Class E, Class F, Class G, Class H, Class V and Class R Certificates will be offered for sale pursuant to a Preliminary Private Placement Memorandum dated June 2, 2015 (as supplemented by the preliminary private placement memorandum supplements, dated June 4, 2015, June 4, 2015 and June 5, 2015, respectively, collectively, the “Preliminary Private Placement Memorandum”) and a final Private Placement Memorandum dated the Pricing Date (the “Private Placement Memorandum”).
REMIC I
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the first (1st) paragraph of Section 12.1(a) hereof (including the Mortgage Loans (other than any Excess Interest payable with respect to such Mortgage Loans)) to be treated for federal income tax purposes as a REMIC (“REMIC I”). The REMIC I Regular Interests will be designated as the “regular interests” in REMIC I and the Class R Certificates will evidence the sole class of “residual interests” in REMIC I for purposes of the REMIC Provisions.
Each REMIC I Regular Interest will relate to, and constitute the “Corresponding REMIC I Regular Interest” with respect to, a separate specific Mortgage Loan (including an REO Mortgage Loan and any Qualifying Substitute Mortgage Loan that may replace such Mortgage Loan). Each REMIC I Regular Interest will have a Pass-Through Rate equal to the applicable REMIC I Net Mortgage Rate from time to time, an initial REMIC I Principal Amount equal to the Cut-Off Date Principal Balance of the Mortgage Loan to which such REMIC I Regular Interest relates, and a “latest possible maturity date” set to the Rated Final Distribution Date. The Class R Certificates will have no principal amount and no Pass-Through Rate, but (insofar as such Certificates represent the REMIC I Residual Interest) will entitle Holders thereof to receive the proceeds of any assets remaining in REMIC I after all the REMIC I Regular Interests have been paid in full.
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REMIC II
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the second (2nd) paragraph of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be treated for federal income tax purposes as a REMIC (“REMIC II”). The REMIC II Regular Interests will be designated as the “regular interests” in REMIC II and the Class R Certificates will evidence the sole class of “residual interests” in REMIC II for purposes of the REMIC Provisions.
The following table sets forth the designation, the initial REMIC II Principal Amount, the corresponding Class of Principal Balance Certificates (the “Corresponding Certificates”) and corresponding Class X REMIC III Regular Interest (the “Corresponding Class X REMIC III Regular Interest”) with respect to each REMIC II Regular Interest. Each REMIC II Regular Interest shall have a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time. The Class R Certificates will have no principal amount and no Pass-Through Rate, but (insofar as such Certificates represent the REMIC II Residual Interest) will entitle Holders thereof to receive the proceeds of any assets remaining in REMIC II after all the REMIC II Regular Interests have been paid in full.
Designations of REMIC II Regular Interests |
Initial REMIC II Principal Amount |
Corresponding Certificates |
Corresponding Class X REMIC III Regular Interest | |||||
A-1 | $ | 45,800,000 | Class A-1 | X-A-1 | ||||
A-2 | $ | 122,100,000 | Class A-2 | X-A-2 | ||||
A-SB | $ | 67,600,000 | Class A-SB | X-A-SB | ||||
A-3 | $ | 230,000,000 | Class A-3 | X-A-3 | ||||
A-4 | $ | 285,394,000 | Class A-4 | X-A-4 | ||||
A-S | $ | 75,089,000 | Class A-S | X-A-S | ||||
B | $ | 60,340,000 | Class B | N/A | ||||
C | $ | 46,931,000 | Class C | N/A | ||||
D | $ | 56,317,000 | Class D | N/A | ||||
E | $ | 24,136,000 | Class E | N/A | ||||
F | $ | 10,727,000 | Class F | X-F | ||||
G | $ | 16,091,000 | Class G | X-G | ||||
H | $ | 32,181,368 | Class H | X-H |
REMIC III
As provided herein, with respect to the Trust, the Certificate Administrator on behalf of the Trustee will make an election for the segregated pool of assets described in the third (3rd) paragraph of Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be treated for federal income tax purposes as a REMIC (“REMIC III”). The Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class D, Class E, Class F, Class G and Class H Certificates, the EC REMIC III Regular Interests and the Class X REMIC III Regular Interests will be
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designated as the “regular interests” in REMIC III, and the Class R Certificates will evidence the sole class of “residual interests” in REMIC III for purposes of the REMIC Provisions.
The following table sets forth the Class designation, initial Aggregate Certificate Balance (or initial Notional Amount) and corresponding REMIC II Regular Interest(s) (each, a “Corresponding REMIC II Regular Interest”) with respect to each Class of REMIC III Regular Certificates or Exchangeable Certificates. On each Distribution Date, the Pass-Through Rate for each Class of Certificates (other than the Class PST, Class V and Class R Certificates) will be determined as set forth herein under the definition of “Pass-Through Rate.” The Class R Certificates will have no Aggregate Certificate Balance or Pass-Through Rate, but (insofar as such Certificates represent the REMIC III Residual Interest) will entitle the Holders thereof to receive the proceeds of any remaining assets in REMIC III after the Aggregate Certificate Balance of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class PST, Class C, Class D, Class E, Class F, Class G and Class H Certificates have been reduced to zero and any Collateral Support Deficits previously allocated thereto (and any interest thereon) have been reimbursed.
Class Designation | Initial Aggregate Certificate Balance or Notional Amount |
Corresponding REMIC II
Regular Interest(s) | ||||
Class A-1 | $ | 45,800,000 | A-1 | |||
Class A-2 | $ | 122,100,000 | A-2 | |||
Class A-SB | $ | 67,600,000 | A-SB | |||
Class A-3 | $ | 230,000,000 | A-3 | |||
Class A-4 | $ | 285,394,000 | A-4 | |||
Class A-S(a) | $ | 75,089,000 | (b) | A-S(c) | ||
Class B(a) | $ | 60,340,000 | (b) | B(c) | ||
Class PST(a) | $ | 0 | (b) | A-S, B and C(c) | ||
Class C(a) | $ | 46,931,000 | (b) | C(c) | ||
Class D | $ | 56,317,000 | D | |||
Class E | $ | 24,136,000 | E | |||
Class F | $ | 10,727,000 | F | |||
Class G | $ | 16,091,000 | G | |||
Class H | $ | 32,181,368 | H | |||
Class X-A(d) | $ | 750,894,000 | (e) | A-1, A-2, A-SB, A-3 and A-4(f) | ||
Class X-B(g) | $ | 75,089,000 | (e) | A-S(h) | ||
Class X-FG(i) | $ | 26,818,000 | (e) | F and G(j) | ||
Class X-H(k) | $ | 32,181,368 | (e) | H(l) |
(a) | The Class A-S, Class B and Class C Certificates are not regular interests in a REMIC but represent ownership of the Class A-S Percentage Interest, the Class B Percentage Interest and the Class C Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest, Class B REMIC III Regular Interest and Class C REMIC III Regular Interest, respectively, each of which EC REMIC III Regular Interests is contained in the Grantor Trust. The Class PST Certificates are not regular interests in a REMIC but represent ownership of the Class PST Components. The initial Certificate Balances of the Class A-S REMIC III Regular Interest, Class B REMIC III Regular Interest and Class C REMIC III Regular Interest are $75,089,000, $60,340,000 and $46,931,000, respectively. |
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(b) | The Aggregate Certificate Balance of each of the Class A-S, Class B and Class C Certificates equals the Class A-S Percentage Interest, Class B Percentage Interest and Class C Percentage Interest, respectively, of the Certificate Balance of the Class A-S REMIC III Regular Interest, Class B REMIC III Regular Interest and Class C REMIC III Regular Interest, respectively. The Aggregate Certificate Balance of the Class PST Certificates equals the sum of the Class PST Component A-S Principal Amount, Class PST Component B Principal Amount and Class PST Component C Principal Amount. |
(c) | REMIC II Regular Interest A-S is the Corresponding REMIC II Regular Interest with respect to the Class A-S REMIC III Regular Interest; REMIC II Regular Interest B is the Corresponding REMIC II Regular Interest with respect to the Class B REMIC III Regular Interest; REMIC II Regular Interest C is the Corresponding REMIC II Regular Interest with respect to the Class C REMIC III Regular Interest. |
(d) | The Class X-A Certificates represent ownership of the Class X-A REMIC III Regular Interest(s). |
(e) | Notional Amount equals the aggregate REMIC II Principal Amount of the Corresponding REMIC II Regular Interests. |
(f) | REMIC II Regular Interest A-1 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-1; REMIC II Regular Interest A-2 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-2; REMIC II Regular Interest A-SB is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-SB; REMIC II Regular Interest A-3 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-3; and REMIC II Regular Interest A-4 is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-4. |
(g) | The Class X-B Certificates represent ownership of the Class X-B REMIC III Regular Interest. |
(h) | REMIC II Regular Interest A-S is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-A-S. |
(i) | The Class X-FG Certificates represent ownership of the Class X-FG REMIC III Regular Interests. |
(j) | REMIC II Regular Interest F is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-F; and REMIC II Regular Interest G is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-G. |
(k) | The Class X-H Certificates represent ownership of the Class X-H REMIC III Regular Interest. |
(l) | REMIC II Regular Interest H is the Corresponding REMIC II Regular Interest with respect to REMIC III Regular Interest X-H. |
GRANTOR TRUST
The parties intend that the portion of the Trust consisting of the segregated pool of assets consisting of the Class V Specific Grantor Trust Assets (if any), the Class A-S Specific Grantor Trust Assets, the Class B Specific Grantor Trust Assets, the Class C Specific Grantor Trust Assets and the Class PST Specific Grantor Trust Assets (such portion of the Trust, the “Grantor Trust”) be treated as a grantor trust under Subpart E of Part 1 of subchapter J of the Code, as an “investment trust” under Treasury Regulations Section 301.7701-4(c) and as a “domestic trust” under Treasury Regulations Section 301.7701-7. If any Class V Specific Grantor Trust Assets exist, then the Class V Certificates shall represent undivided beneficial interests in a portion of the Grantor Trust consisting of the related Class V Specific Grantor Trust Assets. The Class A-S Certificates shall represent undivided beneficial interests in a portion of
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the Grantor Trust consisting of the related Class A-S Specific Grantor Trust Assets. The Class B Certificates shall represent undivided beneficial interests in a portion of the Grantor Trust consisting of the related Class B Specific Grantor Trust Assets. The Class C Certificates shall represent undivided beneficial interests in a portion of the Grantor Trust consisting of the related Class C Specific Grantor Trust Assets. For federal income tax purposes the Certificate Administrator shall treat the Grantor Trust as a grantor trust and shall treat each Holder of a Class V Certificate or Exchangeable Certificate as the owner of the individual, underlying assets represented by any such Certificate. In addition, to the fullest extent possible, ownership of a Class V Certificate or Exchangeable Certificate shall be treated as direct ownership of the individual, underlying assets represented by such Certificate for federal income tax reporting purposes.
ARTICLE
I
DEFINITIONS;
CALCULATIONS AND CERTAIN OTHER MATTERS
Section 1.1 Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
“10-K Filing Deadline” has the meaning set forth in Section 13.5.
“17g-5 Indemnified Party” has the meaning set forth in Section 5.7(c).
“17g-5 Indemnifying Party” means each of the 17g-5 Information Provider, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Certificate Registrar, the Trustee, the Custodian and (other than with respect to the Sellers, the Underwriters and the Initial Purchasers) the Master Servicer.
“17g-5 Information Provider” means the Certificate Administrator.
“17g-5 Information Provider’s Website” means the internet website of the 17g-5 Information Provider, initially located at www.ctslink.com, under the “NRSRO” tab of the respective transaction, access to which is limited to Rating Agencies and other NRSROs who have provided an NRSRO Certification.
“30/360 Basis” has the meaning set forth in the definition of REMIC I Net Mortgage Rate.
“32 Old Slip Fee Intercreditor Agreement” means, the intercreditor, co-lender or comparable agreement between the initial holders of the 32 Old Slip Fee Mortgage Loan and the 32 Old Slip Fee Serviced Companion Loan.
“32 Old Slip Fee Loan Pair” means, collectively, the 32 Old Slip Fee Mortgage Loan and the 32 Old Slip Fee Serviced Companion Loan.
“32 Old Slip Fee Mortgage” means the Mortgage securing the 32 Old Slip Fee Mortgage Loan and the 32 Old Slip Fee Serviced Companion Loan.
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“32 Old Slip Fee Mortgage Loan” means the Mortgage Loan evidenced by the promissory notes designated as “Note A-3” and “Note A-4” and identified as “32 Old Slip Fee” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the 32 Old Slip Fee Serviced Companion Loan to the extent set forth in the 32 Old Slip Fee Intercreditor Agreement. The 32 Old Slip Fee Mortgage Loan is a “Mortgage Loan.”
“32 Old Slip Fee Serviced Companion Loan” means, collectively, the promissory notes designated as “Note A-1,” “Note A-2” and “Note A-5” that are not included in the Trust and are secured on a pari passu basis with the 32 Old Slip Fee Mortgage Loan to the extent set forth in the 32 Old Slip Fee Intercreditor Agreement. The 32 Old Slip Fee Serviced Companion Loan is not a “Mortgage Loan.”
“A Note” means, with respect to any A/B Whole Loan, the mortgage note (or notes) included in the Trust that is senior in right of payment to the related Serviced B Note or any other subordinated note(s) to the extent set forth in the related Intercreditor Agreement. There are no A Notes related to the Trust as of the Closing Date.
“A/B Whole Loan” means any mortgage loan serviced under this Agreement that is divided into a senior mortgage note that is included in the Trust and one or more subordinated mortgage note(s) not included in the Trust. References herein to an A/B Whole Loan shall be construed to refer to the aggregate indebtedness under the related A Note and the related subordinated note(s). There are no A/B Whole Loans related to the Trust as of the Closing Date.
“A/B Whole Loan Custodial Account” means each of the custodial sub-account(s) of the Collection Account (but which are not included in the Trust) created and maintained by the Master Servicer with respect to an A/B Whole Loan pursuant to Section 5.1(c) on behalf of the holder of a related Serviced B Note. Any such sub-account(s) shall be maintained as a sub-account of an Eligible Account.
“Acceptable Insurance Default” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any default arising when the related loan documents require that the related Mortgagor must maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with the Servicing Standard, but subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the related Mortgaged Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate.
“Accountant” means a person engaged in the practice of accounting who is Independent.
“Accrued Certificate Interest” means: (a) with respect to any Class of Certificates (other than the Exchangeable Certificates and the Class X, Class V and Class R Certificates) or EC REMIC III Regular Interest for any Distribution Date, interest accrued during
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the Interest Accrual Period relating to such Distribution Date on the Aggregate Certificate Balance of such Class or EC REMIC III Regular Interest, as applicable, immediately prior to such Distribution Date at the applicable Pass-Through Rate for such Class or EC REMIC III Regular Interest and Distribution Date; and (b) with respect to any Class of Class X Certificates for any Distribution Date, all Accrued Interest with respect to the related Class X REMIC III Regular Interests for such Distribution Date. Accrued Certificate Interest will be calculated on a 30/360 Basis.
“Accrued Interest” means: (a) with respect to any REMIC I Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the REMIC I Principal Amount of such REMIC I Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such REMIC I Regular Interest and Distribution Date; (b) with respect to any REMIC II Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the REMIC II Principal Amount of such REMIC II Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such REMIC II Regular Interest and Distribution Date; and (c) with respect to any Class X REMIC III Regular Interest for any Distribution Date, interest accrued during the Interest Accrual Period relating to such Distribution Date on the Notional Amount of such Class X REMIC III Regular Interest immediately prior to such Distribution Date at the applicable Pass-Through Rate for such Class X REMIC III Regular Interest and Distribution Date. Accrued Interest will be calculated on a 30/360 Basis.
“Acquisition Date” means the date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest therein, in the case of the Mortgaged Properties securing any A/B Whole Loan, Non-Serviced Mortgage Loan, Non-Serviced Companion Loan or Loan Pair).
“Actual Recoveries” means any actual recoveries of Trust Advisor Expenses from third parties (i.e., other than the related Mortgagor) or from the related Mortgagor to the extent such amounts paid by the related Mortgagor were specifically identified as a reimbursement of the Trust Advisor Expenses and paid in respect of a Collection Period when no other amounts were currently due and owing (or when the related Mortgagor contemporaneously paid all amounts due and owing) in respect of the related Mortgage Loan to which such Trust Advisor Expenses related.
“Actual/360 Basis” means the accrual of interest calculated on the basis of the actual number of days elapsed during any calendar month (or other applicable accrual period, including any Interest Accrual Period) in a year assumed to consist of 360 days.
“Additional Disclosure Notification” means the form of notification attached hereto as Schedule XIV to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information.
“Additional Form 10-D Disclosure” has the meaning set forth in Section 13.4.
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“Additional Form 10-K Disclosure” has the meaning set forth in Section 13.5.
“Additional Servicer” means each Affiliate of the Master Servicer, the Special Servicer, the Sellers, the Certificate Administrator, the Custodian, the Trustee, the Depositor or any of the Underwriters that Services any of the Mortgage Loans and each Person, other than the Special Servicer, who is not an Affiliate of the Master Servicer, the Sellers, the Certificate Administrator, the Custodian, the Trustee, the Depositor or any of the Underwriters, that Services 10% or more of the Mortgage Loans (based on their Unpaid Principal Balances).
“Additional Trust Expense” means any of the following items: (i) Special Servicing Fees, Workout Fees and Liquidation Fees (in each case to the extent not collected from the related Mortgagor); (ii) Advance Interest that cannot be paid in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, the Trust Advisor (subject to the last sentence of this definition), any applicable Non-Serviced Mortgage Loan Special Servicer, the Trustee, the Custodian, the Certificate Administrator (or any other Person) pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid, any federal, state, or local taxes imposed on the Trust or its assets and paid from amounts on deposit in the Collection Account or Distribution Account; and (v) subject to the last sentence of this definition, to the extent not otherwise covered by indemnification by one of the parties hereto or otherwise and not payable by the related Mortgagor under any Mortgage Loan, any other unanticipated cost, liability, or expense (or portion thereof) of the Trust (including costs of collecting such amounts or other Additional Trust Expenses) that the Trust has not recovered, and in the judgment of the Master Servicer (or Special Servicer) will not recover, from any other source; provided that, in the case of an A/B Whole Loan or Loan Pair, “Additional Trust Expense” shall not include any of the foregoing amounts to the extent that the payment of those expenses are allocated to a related Serviced B Note as a result of the subordination of such related Serviced B Note or to the related Serviced Companion Loan, in each case in accordance with the terms of the related Intercreditor Agreement. Notwithstanding anything to the contrary, “Additional Trust Expenses” shall not include (A) allocable overhead of the Master Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, any applicable Non-Serviced Mortgage Loan Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Certificate Registrar, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses, and similar costs and expenses related to allocable overhead (and each of such parties shall be solely responsible for any such costs incurred by it), or (B) with respect to any Class of Control Eligible Certificates, Trust Advisor Expenses (including Excess Trust Advisor Expenses).
“Administrative Cost Rate” means, with respect to each Mortgage Loan, the sum of the Master Servicing Fee Rate, the Trust Advisor Fee Rate, the Certificate Administrator Fee Rate, the CREFC® License Fee Rate and, in the case of any Non-Serviced Mortgage Loan, the related Pari Passu Loan Primary Servicing Fee Rate.
“Advance” means either a P&I Advance or a Servicing Advance.
“Advance Interest” means interest at the Advance Rate payable to the Master Servicer, the Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
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Advances) pursuant to Section 4.5 of this Agreement and any interest payable to any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Fiscal Agent with respect to Pari Passu Loan Nonrecoverable Advances pursuant to Section 4.4(c) hereof.
“Advance Rate” means a per annum rate equal to the Prime Rate as published in the “Money Rates” section of The Wall Street Journal from time to time. If The Wall Street Journal ceases to publish the “prime rate,” then the Trustee shall select an equivalent publication that publishes such “prime rate”; and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body then the Trustee shall select a comparable interest rate index. In either case, such selection shall be made by the Trustee in its reasonable discretion and the Trustee shall notify the Master Servicer and the Special Servicer in writing of its selection.
“Advance Report Date” means the second (2nd) Business Day prior to each Distribution Date.
“Adverse Grantor Trust Event” means any action that, under the Code, if taken or not taken, as the case may be, would result in the imposition of an entity level tax on the income of the Grantor Trust or any of its assets or transactions.
“Adverse REMIC Event” means any action that, under the REMIC Provisions, if taken or not taken, as the case may be, would either (i) endanger the status of any REMIC Pool as a REMIC or (ii) except as permitted by Section 9.14(e), result in the imposition of a tax upon the income of any REMIC Pool or any of its assets or transactions, including without limitation the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on contributions set forth in Section 860G(d) of the Code.
“Affected Reporting Party” has the meaning set forth in Section 13.12.
“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Aggregate Certificate Balance”, when used with respect to Certificates, means, at any time of determination, the aggregate of the Certificate Balances of any two or more Principal Balance Certificates or of all the Certificates of any particular Class or Classes of Principal Balance Certificates, or, when used with respect to an EC REMIC III Regular Interest, shall have the same meaning as “Certificate Balance”, or, when used with respect to a Class PST Component, shall mean the Class A-S-PST Percentage Interest of the Certificate Balance of the Class A-S REMIC III Regular Interest, the Class B-PST Percentage Interest of the Certificate Balance of the Class B REMIC III Regular Interest or the Class C-PST Percentage Interest of the Certificate Balance of the Class C REMIC III Regular Interest, as applicable.
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“Aggregate Stated Principal Balance” means, at the time of any determination and as the context may require, the aggregate of the Stated Principal Balances for all Mortgage Loans (including REO Mortgage Loans).
“Agreement” means this Pooling and Servicing Agreement and all amendments and supplements hereto.
“Allocable Modification Fee” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, as to which a Modification Fee is collected, the excess, if any, of (i) such Modification Fee, over (ii) 0.75% of the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair immediately following the related restructuring, modification, extension, waiver or amendment in connection with which such Modification Fee was collected.
“Anticipated Repayment Date” means, with respect to each ARD Mortgage Loan, the anticipated maturity date set forth in the related Mortgage Note.
“Applicable Control Party” means, with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan, Loan Pair or related REO Property, as the context may require, subject to the restrictions set forth in Section 10.1(c), the Controlling Class Representative (during any Subordinate Control Period and except with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder) or any related Loan-Specific Directing Holder (solely with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of a related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable. During any Collective Consultation Period and any Senior Consultation Period, there shall be no Applicable Control Party except: (i) to the extent provided for under the related Intercreditor Agreement, with respect to an A/B Whole Loan or a Loan Pair or a related REO Property as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder; and (ii) with respect to the Controlling Class Representative if it is otherwise specifically granted consent rights during any Collective Consultation Period with respect to any particular matter as set forth herein. Provisions in this Agreement that contemplate any other Person having to obtain the consent or approval of, consult with or otherwise interact with an Applicable Control Party in circumstances involving a Mortgage Loan, A/B Whole Loan, Loan Pair or related REO Property as to which there is no Applicable Control Party shall be of no force and effect.
“Applicable Laws” has the meaning set forth in Section 14.19.
“Appraisal” means an appraisal by an Independent licensed MAI appraiser having at least five (5) years experience in appraising property of the same type as, and in the same geographic area as, the Mortgaged Property being appraised, which appraisal complies with the Uniform Standards of Professional Appraisal Practices and states the “market value” of the subject property as defined in 12 C.F.R. § 225.62.
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“Appraisal Event” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, the occurrence of the earliest of:
(a) the date on which a modification of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, becomes effective following the occurrence of a Servicing Transfer Event that, among other things, materially affects the amount or timing of any payment of principal or interest on such Mortgage Loan, A/B Whole Loan or Loan Pair or materially affects any other Money Term (other than an extension of the date that a Balloon Payment is due for a period of less than six (6) months from the original due date of such Balloon Payment), or changes any other material economic term of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, or impairs the security of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be;
(b) that date on which such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, is sixty (60) days or more delinquent in respect of any Scheduled Payment (other than a Balloon Payment);
(c) solely in the case of a delinquent Balloon Payment, (i) the date occurring sixty (60) days beyond the date on which that Balloon Payment was due (except as described in clause (ii)) or (ii) if the related Mortgagor has delivered a refinancing commitment acceptable to the Special Servicer prior to the date sixty (60) days after maturity, the date occurring 120 days after the date on which that Balloon Payment was due (or for such shorter period beyond the date on which that Balloon Payment was due during which the refinancing is scheduled to occur);
(d) that date on which the related Mortgaged Property became an REO Property;
(e) the day on which Special Servicer receives notice that a receiver or similar official has been appointed (and continues in that capacity) in respect of the related Mortgaged Property;
(f) the date the related Mortgagor becomes subject to (i) a voluntary bankruptcy, insolvency or similar proceeding, or (ii) an involuntary bankruptcy, insolvency or similar proceeding that remains undismissed for sixty (60) days; or
(g) the date on which such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, remains outstanding five (5) years following any extension of its maturity date pursuant to this Agreement.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, an “Appraisal Event” shall occur upon receipt of notice from the related Non-Serviced Mortgage Loan Master Servicer of an “Appraisal Event” pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, upon which notice the parties hereto may conclusively rely.
“Appraisal Reduction” means, with respect to any Required Appraisal Loan (including any Required Appraisal Loan that is or is comprised of an REO Mortgage Loan, REO
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Serviced B Note or REO Serviced Companion Loan, as the case may be) with respect to which an Appraisal or internal valuation is performed pursuant to Section 6.9, an amount equal to the excess of (A) the sum of (i) the Stated Principal Balance of such Required Appraisal Loan, less the principal amount of any payment guaranty or surety bond with a rating of at least “BBB-” (or its equivalent) by a NRSRO and the undrawn principal amount of any letter of credit or debt service reserve, if applicable, that is then securing such Required Appraisal Loan, (ii) to the extent not previously advanced by the Master Servicer, the Trustee or, in respect of any Serviced Companion Loan, any related Other Master Servicer or Other Trustee, all accrued and unpaid interest on such Required Appraisal Loan at a per annum rate equal to the applicable Mortgage Rate, (iii) all unreimbursed Advances and interest on such Advances at the Advance Rate, and all Unliquidated Advances, with respect to such Required Appraisal Loan (together with any similar amounts, including unreimbursed advances, due and owing under any related Other Companion Loan Pooling and Servicing Agreement), and (iv) to the extent funds on deposit in any applicable Escrow Accounts are not sufficient therefor, and to the extent not previously advanced by the Master Servicer, the Special Servicer or the Trustee all currently due and unpaid real estate taxes and assessments, insurance premiums and, if applicable, ground rents and other amounts which were required to be deposited in any Escrow Account (but were not deposited) in respect of the related Mortgaged Property or REO Property, as the case may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of the related Mortgaged Property or REO Property, as the case may be, as determined by such Appraisal or internal valuation, as the case may be, plus the full amount of any escrows held by or on behalf of the Trustee as security for such Required Appraisal Loan (less the estimated amount of the obligations anticipated to be payable in the next twelve months to which such escrows relate); provided that, if any Required Appraisal Loan is secured by more than one (1) Mortgaged Property (other than by cross-collateralization with another Mortgage Loan), and one or more of the related Mortgaged Properties has been defeased, the Stated Principal Balance of such Required Appraisal Loan shall not include the portion of the principal balance of such Required Appraisal Loan that has been defeased, and any defeasance collateral will not be included for purposes of determining the value of the Mortgaged Property or REO Property that secures the related Required Appraisal Loan; and provided, further, that each Appraisal Reduction will be reduced to zero as of the date the related Required Appraisal Loan becomes a Rehabilitated Mortgage Loan and no Appraisal Reduction will exist as to any Required Appraisal Loan after it has been paid in full, liquidated, repurchased or otherwise disposed of; and provided, further, that any Appraisal Reduction in respect of any Non-Serviced Mortgage Loan shall be (x) calculated in accordance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement based upon the applicable allocation of the items set forth in clauses (A) and (B) above between the Non-Serviced Mortgage Loans and the related Non-Serviced Companion Loans and all other related pari passu loans and (y) applied to any Non-Serviced Mortgage Loan to the extent notice of such Appraisal Reduction has been delivered to the Master Servicer by the related Non-Serviced Mortgage Loan Master Servicer. Receipt by the Master Servicer of a distribution date statement from the related Non-Serviced Mortgage Loan Master Servicer shall constitute notice of such Appraisal Reduction if such Appraisal Reduction information is contained therein, upon which the Master Servicer may conclusively rely without any independent calculation. Notwithstanding the foregoing, (1) if an Appraisal is required to be obtained in accordance with Section 6.9 of this Agreement but is not obtained within 120 days following the events described in the applicable clause of the definition “Appraisal Event” (without regard to the time periods stated therein), then, until such Appraisal
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is obtained and solely for purposes of determining the amounts of P&I Advances, the Appraisal Reduction shall equal 25% of the Stated Principal Balance of the related Required Appraisal Loan; provided that, upon receipt of an Appraisal, the Appraisal Reduction for such Required Appraisal Loan shall be recalculated in accordance with this definition without regard to this sentence and (2) with respect to any Non-Serviced Mortgage Loan, if the related Non-Serviced Mortgage Loan Master Servicer has not delivered notice of an Appraisal Reduction within 120 days following its notification of an Appraisal Event, then, until such notice is received and solely for purposes of determining the amounts of P&I Advances, the Appraisal Reduction shall equal 25% of the Stated Principal Balance of such Non-Serviced Mortgage Loan; provided that, upon receipt of such notice, the Appraisal Reduction shall be the amount determined by such Non-Serviced Mortgage Loan Master Servicer.
“Appraised Value” means, (i) with respect to any Mortgaged Property (other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan), the appraised value thereof determined by an Appraisal of the Mortgaged Property securing such Mortgage Loan made by an Independent appraiser selected by the Master Servicer, the Special Servicer or, as and when provided in Section 6.9, the Requesting Holders, as applicable, or, in the case of an internal valuation performed by the Special Servicer pursuant to Section 6.9, the value of the Mortgaged Property determined by such internal valuation and (ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage Loan, the portion of the appraised value allocable thereto.
“Appraised-Out Class” has the meaning set forth in Section 6.9.
“ARD Loan” means any Mortgage Loan, Serviced B Note or Serviced Companion Loan that provides that if the unamortized principal balance thereof is not repaid by a date certain set forth in the related loan documents, such Mortgage Loan, Serviced B Note or Serviced Companion Loan, as the case may be, will accrue additional interest (payable under the related loan documents only after the original principal balance of the subject Mortgage Loan, Serviced B Note or Serviced Companion Loan, as the case may be, has been paid or otherwise discharged in full and, for the avoidance of doubt, excluding from such determination regarding the repayment or discharge of such original principal balance any Excess Interest capitalized as additional principal pursuant to the related Mortgage Loan documents) at the rate specified in the related Mortgage Note and the related Mortgagor is required to apply certain excess monthly cash flow generated by the related Mortgaged Property to the repayment of the outstanding principal balance on such Mortgage Loan. As of the Cut-off Date, the only ARD Loans related to the Trust are the 32 Old Slip Fee Mortgage Loan and the 32 Old Slip Fee Serviced Companion Loan.
“ARD Mortgage Loan” means a Mortgage Loan that is an ARD Loan. As of the Cut-off Date, the only ARD Mortgage Loan related to the Trust is the 32 Old Slip Fee Mortgage Loan.
“ARP Report” has the meaning set forth in Section 13.12.
“Asset Status Report” has the meaning set forth in Section 9.32.
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“Assignment of Leases” means, with respect to any Mortgage Loan, any assignment of leases, rents and profits or equivalent instrument, whether contained in the related Mortgage or executed separately, assigning to the holder or holders of such Mortgage all of the related Mortgagor’s interest in the leases, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of the related Mortgaged Property as security for repayment of such Mortgage Loan.
“Assignment of Mortgage” means an assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the transfer of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering the Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction, if permitted by law.
“Assumed Scheduled Payment” means: (i) with respect to any Balloon Mortgage Loan as to which advancing is required hereunder for its Maturity Date (provided that such Balloon Mortgage Loan has not been paid in full, and no Final Recovery Determination or other sale or liquidation has occurred in respect thereof, on or before the end of the Collection Period in which such Maturity Date occurs) and for any subsequent Due Date therefor as of which such Balloon Mortgage Loan remains outstanding and part of the Trust, if no Scheduled Payment (other than the related delinquent Balloon Payment) is due for such Due Date, the scheduled monthly payment of principal and/or interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment that would have been due in respect of such Balloon Mortgage Loan on such Due Date, if it had been required to continue to accrue interest in accordance with its terms, and to pay principal in accordance with the amortization schedule in effect immediately prior to, and without regard to the occurrence of, its most recent Maturity Date (as such may have been extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment of such Balloon Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to the terms hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date therefor as of which the related REO Property or an interest therein remains part of the Trust, the scheduled monthly payment of principal and interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in clause (i) of this definition, the Assumed Scheduled Payment) that was due in respect of the related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for any A Note shall be calculated solely by reference to the terms thereof (as modified in connection with any bankruptcy or similar proceeding involving the related Mortgagor or pursuant to a modification, waiver or amendment of such Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to the terms hereof) and without regard to the remittance provisions of the related Intercreditor Agreement.
“Assumption Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any and all assumption fees of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, for transactions effected under Section 8.7 and/or Section 9.5 (excluding assumption application fees), actually paid by the related Mortgagor and other applicable fees (excluding assumption application fees)
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actually paid by the related Mortgagor in accordance with the related loan documents, with respect to any assumption or substitution agreement entered into by the Master Servicer or the Special Servicer, as applicable, on behalf of the Trust (or, in the case of an A/B Whole Loan or a Loan Pair, on behalf of the Trust and the holder of any related Serviced B Note or Serviced Companion Loan, as applicable) pursuant to, or paid by the related Mortgagor with respect to, any transfer of an interest in such Mortgagor pursuant to Section 8.7 or Section 9.5, as applicable.
“Authenticating Agent” means any authenticating agent serving in such capacity pursuant to Section 7.10.
“Authorized Officer” means any Person that may execute an Officer’s Certificate on behalf of the Depositor.
“Available Advance Reimbursement Amount” has the meaning set forth in Section 4.6(a).
“Available Distribution Amount” means, with respect to any Distribution Date, an amount equal to the aggregate, without duplication, of the following amounts payable with respect to the Certificates: (a) all amounts on deposit in the Distribution Account (or any subaccount thereof) as of the commencement of business on such Distribution Date that represent payments and other collections on or in respect of the Mortgage Loans and any REO Properties that were received by the Master Servicer or the Special Servicer through the end of the related Collection Period (together with any amounts received in respect of payments or other collections relating to any Non-Serviced Mortgage Loan from the related Non-Serviced Mortgage Loan Master Servicer as part of the applicable monthly remittance) exclusive of any portion thereof that represents one or more of the following: (i) any such amounts that were deposited in the Distribution Account in error, (ii) amounts that are payable or reimbursable to any Person other than the Holders of the Principal Balance Certificates and the Class X and Class R Certificates (including, without limitation, amounts payable (A) to the Master Servicer in respect of unpaid Master Servicing Fees, the Special Servicer in respect of unpaid Special Servicer Compensation, the Trust Advisor in respect of unpaid Trust Advisor Fees or Trust Advisor Consulting Fees (to the extent that such Trust Advisor Consulting Fee is actually received from the related Mortgagor), the Certificate Administrator in respect of unpaid Certificate Administrator Fees, including any portion of the Certificate Administrator Fees payable to the Trustee in respect of unpaid Trustee Fees or to the Custodian in respect of unpaid Custodian Fees or CREFC® in respect of unpaid CREFC® License Fees and/or (B) in reimbursement of outstanding Advances (with interest thereon)), (iii) amounts that constitute Prepayment Premiums, (iv) except with respect to the final Distribution Date, if such Distribution Date occurs during January, other than during a leap year, or February of any year, the Interest Reserve Amounts of one (1) day’s interest with respect to Interest Reserve Loans deposited in the Interest Reserve Account; (v) in the case of each REO Property related to an A/B Whole Loan or Loan Pair, all amounts received with respect to such A/B Whole Loan or Loan Pair that are required to be paid to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the terms of the related Serviced B Note or Serviced Companion Loan, as applicable, and the related Intercreditor Agreement (which amounts will be deposited into the related Custodial Account pursuant to Section 5.1(c) and withdrawn from such account pursuant to Section 5.2(a)); and (vi) Scheduled Payments collected but due on a Due
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Date subsequent to the related Collection Period; and (b) if and to the extent not already among the amounts described in clause (a), (i) the aggregate amount of any P&I Advances made by the Master Servicer or the Trustee for such Distribution Date on the Mortgage Loans pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest payments made by the Master Servicer on the Mortgage Loans for such Distribution Date pursuant to the terms hereof, (iii) if such Distribution Date occurs in March of any year, commencing March 2016, or on the final Distribution Date, the aggregate of the Interest Reserve Amounts then held on deposit in the Interest Reserve Account in respect of each Interest Reserve Loan; and (iv) any Balloon Payments received during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer Remittance Date and remitted by the Master Servicer to the Distribution Account pursuant to Section 5.2(c).
“Aviare Place Apartments Intercreditor Agreement” means, the intercreditor, co-lender or comparable agreement between the initial holders of the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Serviced Companion Loan.
“Aviare Place Apartments Loan Pair” means, collectively, the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Serviced Companion Loan.
“Aviare Place Apartments Mortgage” means the Mortgage securing the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Serviced Companion Loan.
“Aviare Place Apartments Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-1” and identified as “Aviare Place Apartments” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the Aviare Place Apartments Serviced Companion Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. The Aviare Place Apartments Mortgage Loan is a “Mortgage Loan.”
“Aviare Place Apartments Serviced Companion Loan” means, the promissory note designated as “Note A-2” that is not included in the Trust and is secured on a pari passu basis with the Aviare Place Apartments Mortgage Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. The Aviare Place Apartments Serviced Companion Loan is not a “Mortgage Loan.”
“B Note” means (i) with respect to any A/B Whole Loan, any related subordinated note not included in the Trust, which is subordinated in right of payment to the related A Note to the extent set forth in the related Intercreditor Agreement, (ii) the Hilton Garden Inn W 54th Street B Note and (iii) the promissory notes (individually or collectively, as the context may require) comprising the US StorageMart Portfolio B Note. The only B Notes related to any Mortgage Loans included in the Trust on the Closing Date are (i) the Hilton Garden Inn W 54th Street B Note and (ii) the promissory notes comprising the US StorageMart Portfolio B Note (individually or collectively, as the context may require).
“Balloon Loan” means a Mortgage Loan, A/B Whole Loan or Loan Pair that provides for Scheduled Payments based on an amortization schedule that is significantly longer
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than its term to maturity and that is expected to have a remaining principal balance equal to or greater than 5% of its Cut-Off Date Principal Balance as of its stated maturity date, unless prepaid prior thereto.
“Balloon Mortgage Loan” means a Mortgage Loan that is a Balloon Loan.
“Balloon Payment” means, with respect to any Balloon Loan (and any related B Note, Serviced Companion Loan or Non-Serviced Companion Loan), the Scheduled Payment payable on the Maturity Date of such Balloon Loan.
“BANA” has the meaning set forth in the Preliminary Statement hereto.
“BANA Lender Successor Borrower Right” has the meaning set forth in Section 8.3(h) hereof.
“BANA Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on Schedule I hereto (or, with respect to any Joint Mortgage Loan, BANA’s pro rata share of such Joint Mortgage Loans based on BANA’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“Bankruptcy Loss” means a loss arising from a proceeding under the United States Bankruptcy Code or any other similar state law or other proceeding with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan, A/B Whole Loan or Loan Pair, including, without limitation, any Deficient Valuation Amount or losses, if any, resulting from any Debt Service Reduction Amount for the month in which the related Distribution Date occurs.
“Base Interest Fraction” means, with respect to any Principal Prepayment of any Mortgage Loan that provides for payment of a Prepayment Premium, and with respect to any Class of Principal Balance Certificates (other than the Exchangeable Certificates and the Control Eligible Certificates) or any EC REMIC III Regular Interest, a fraction (A) whose numerator is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on that Class of Certificates or EC REMIC III Regular Interest and (ii) the applicable Discount Rate and (B) whose denominator is the difference between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the applicable Discount Rate, provided that under no circumstances will the Base Interest Fraction be greater than one. If the Discount Rate referred to above is greater than or equal to the Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction will equal zero; provided that if the Discount Rate referred to above is greater than or equal to the Mortgage Rate on the related Mortgage Loan, but is less than the Pass-Through Rate on the subject Class of Principal Balance Certificates or EC REMIC III Regular Interest, then the Base Interest Fraction shall be equal to 1.0.
“Book-Entry Certificates” means any Certificates as to which ownership and transfer thereof shall be made through book entries as set forth in Section 3.7; provided, that after the occurrence of a condition whereupon book-entry registration and transfer are no longer authorized and Definitive Certificates are to be issued to the Certificate Owners, such certificates shall no longer be “Book-Entry Certificates.”
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“Business Day” means any day other than (i) a Saturday or a Sunday, (ii) a day on which the Federal Reserve or the New York Stock Exchange is closed, (iii) a legal holiday in New York, New York, Charlotte, North Carolina or any principal city (or cities) in which any of the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Master Servicer conducts servicing or trust operations or in which any such party’s corporate office or corporate trust office is located, or (iv) a day on which banking institutions or savings associations in New York, New York, Charlotte, North Carolina or any principal city (or cities) in which any of the Special Servicer, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator or the Master Servicer conducts servicing or trust operations or in which any such party’s corporate office or corporate trust office is located, are authorized or obligated by law or executive order to be closed.
“Calculation Rate” means a discount rate appropriate for the type of cash flows being discounted, namely: (A) for principal and interest payments on a Mortgage Loan, Serviced B Note or Serviced Companion Loan or from the sale of a Defaulted Loan, the higher of (1) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of the related Mortgagor as of such date of determination, and (2) the related Mortgage Rate based on its Unpaid Principal Balance; and (B) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.
“Cash Liquidation” means, as to any Defaulted Loan other than a Mortgage Loan with respect to which the related Mortgaged Property became REO Property, the sale of such Defaulted Loan for cash. The Master Servicer shall maintain records in accordance with the Servicing Standard (and, in the case of Specially Serviced Mortgage Loans, based solely on the written reports with respect to such Cash Liquidation delivered by the Special Servicer to the Master Servicer), of each Cash Liquidation.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.).
“Certificate Administrator” means Wells Fargo Bank, National Association and any successor or assign, as provided herein.
“Certificate Administrator Fee” means, with respect to each Mortgage Loan (including a Mortgage Loan if it relates to an REO Property or is a Defeasance Loan) for any related Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related Certificate Administrator Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan during such related Mortgage Loan Accrual Period; provided, that a portion of the Certificate Administrator Fee shall be applied to pay the Trustee Fee and the Custodian Fee.
“Certificate Administrator Fee Rate” means 0.0037% per annum, which rate includes the per annum rate applicable to calculation of the Trustee Fee and the Custodian Fee.
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“Certificate Administrator Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Certificate Administrator, the Depositor, the Initial Purchasers and the Underwriters, which agreement may be the same agreement as the Trustee Indemnification Agreement, if the Certificate Administrator and the Trustee are the same entity.
“Certificate Administrator’s Website” means the internet website of the Certificate Administrator, initially located at www.ctslink.com.
“Certificate Balance” means, with respect to any Principal Balance Certificate (other than the Exchangeable Certificates) or any EC REMIC III Regular Interest, as of any date or time of determination, the maximum specified dollar amount of principal to which the Holder of such Certificate or the holder of such EC REMIC III Regular Interest is then entitled hereunder, such amount being equal to the initial principal amount set forth on the face of such Certificate (in the case of a Certificate) or set forth in the Preliminary Statement (in the case of an EC REMIC III Regular Interest), minus (a)(i) the amount of all principal distributions previously made pursuant to Section 6.5(a), (ii) all Collateral Support Deficits allocated pursuant to Section 6.6, and (iii) any Excess Trust Advisor Expenses allocated pursuant to Section 6.11, in each case with respect to such Certificate or EC REMIC III Regular Interest in reduction of its Certificate Balance, plus (b) any prior increase in the Certificate Balance of such Certificate or EC REMIC III Regular Interest attributable to the amounts identified in clause (I)(C) of the definition of “Principal Distribution Amount” with respect to any Distribution Date, plus (c) any prior increase in the Certificate Balance of such Certificate or EC REMIC III Regular Interest pursuant to Section 6.11 in connection with the allocation of Actual Recoveries of Trust Advisor Expenses. On each Distribution Date, prior to any distributions being made on such Distribution Date, the Certificate Balances of the Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests will be increased by the aggregate of the amounts identified in clause (I)(C) of the definition of “Principal Distribution Amount” for such Distribution Date, such increase to be allocated to the respective Classes of the Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests in descending sequential order of payment priority (i.e., to the most senior such Class or EC REMIC III Regular Interest first), in each case up to, and in reduction of, the amount of Collateral Support Deficits previously allocated thereto and not otherwise reimbursed hereunder. Any such increase in the Certificate Balances of the Principal Balance Certificates (other than the Exchangeable Certificates) of any particular Class thereof shall, in turn, be allocable among such Principal Balance Certificates on a pro rata basis in accordance with their respective initial Certificate Balances. “Certificate Balance” with respect to any Exchangeable Certificate means, as of any date or time of determination, the maximum specified dollar amount of principal to which the Holder of such Certificate is then entitled hereunder, such amount being equal to (1) with respect to any Class A-S, Class B or Class C Certificate, the principal amount as of the Closing Date set forth on the face of such Certificate after giving effect to any exchanges pursuant to Section 3.3 prior to such date or time of determination, multiplied by a fraction expressed as a percentage, the numerator of which is the Certificate Balance of the EC REMIC III Regular Interest bearing the same alphabetic designation as of such date or time of determination, and the denominator of which is the original Certificate Balance of such EC REMIC III Regular Interest, and (2) with respect to any Class PST Certificate, the sum of (a) the Class PST Original A-S Portion multiplied by a fraction expressed as a percentage, the
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numerator of which is the Certificate Balance of the Class A-S REMIC III Regular Interest as of such date or time of determination, and the denominator of which is the original Certificate Balance of the Class A-S REMIC III Regular Interest, (b) the Class PST Original B Portion multiplied by a fraction expressed as a percentage, the numerator of which is the Certificate Balance of the Class B REMIC III Regular Interest as of such date or time of determination, and the denominator of which is the original Certificate Balance of the Class B REMIC III Regular Interest, and (c) the Class PST Original C Portion multiplied by a fraction expressed as a percentage, the numerator of which is the Certificate Balance of the Class C REMIC III Regular Interest as of such date or time of determination, and the denominator of which is the original Certificate Balance of the Class C REMIC III Regular Interest.
“Certificate Owner” means, with respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Book-Entry Certificate, as may be reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Certificate Register” has the meaning set forth in Section 3.2.
“Certificate Registrar” means the registrar appointed pursuant to Section 3.2, which initially shall be the Certificate Administrator.
“Certificateholders” has the meaning set forth in the definition of “Holder.”
“Certificates” means, collectively, the REMIC III Regular Certificates, the Exchangeable Certificates and the Class V and Class R Certificates.
“Certification Parties” has the meaning set forth in Section 13.6 and shall also include such parties in an Other Securitization.
“Certifying Certificateholder” means a Certificateholder or Certificate Owner that has provided the Certificate Administrator with an executed Investor Certification.
“Certifying Person” has the meaning set forth in Section 13.6.
“Certifying Servicer” has the meaning set forth in Section 13.9.
“CGBAM 2015-SMRT Trust and Servicing Agreement” means the Trust and Servicing Agreement, dated as of May 6, 2015, between Citigroup Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as servicer and special servicer, Deutsche Bank Trust Company Americas, as trustee and custodian, and Citibank, N.A., as certificate administrator.
“CIBC” has the meaning set forth in the Preliminary Statement hereto.
“CIBC Lender Successor Borrower Right” has the meaning set forth in Section 8.3(h) hereof.
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“CIBC Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement III and shown on Schedule III hereto (or, with respect to any Joint Mortgage Loan, CIBC’s pro rata share of such Joint Mortgage Loans based on CIBC’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“Class” means all Certificates bearing the same alphabetic or alphanumeric class designation.
“Class A Senior Certificates” means the Class A-1 Certificates, the Class A-2 Certificates, the Class A-SB Certificates, the Class A-3 Certificates and the Class A-4 Certificates.
“Class A-1 Certificates,” “Class A-2 Certificates,” “Class A-SB Certificates,” “Class A-3 Certificates,” “Class A-4 Certificates,” “Class A-S Certificates,” “Class X-A Certificates,” “Class X-B Certificates,” “Class X-FG Certificates,” “Class X-H Certificates,” “Class B Certificates,” “Class PST Certificates,” “Class C Certificates,” “Class D Certificates,” “Class E Certificates,” “Class F Certificates,” “Class G Certificates,” “Class H Certificates,” “Class V Certificates” and “Class R Certificates” mean, in each such case, the Certificates designated as “Class A-1,” “Class A-2,” “Class A-SB,” “Class A-3,” “Class A-4,” “Class A-S,” “Class X-A,” “Class X-B,” “Class X-FG,” “Class X-H,” “Class B,” “Class PST,” “Class C,” “Class D,” “Class E,” “Class F,” “Class G,” “Class H,” “Class V” and “Class R,” respectively, on the face thereof, in substantially the forms attached hereto as Exhibits A-1 to A-20.
“Class A-S Percentage Interest” means the quotient of the Aggregate Certificate Balance of the Class A-S Certificates divided by the Certificate Balance of the Class A-S REMIC III Regular Interest. As of the Closing Date, the Class A-S Percentage Interest shall be 100.0%.
“Class A-S REMIC III Regular Interest” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated as “A-S”, which regular interest bears interest at a per annum rate equal to the Pass-Through Rate with respect to the Class A-S Certificates. The Class A-S Certificates will represent beneficial ownership of the Class A-S Percentage Interest of the Class A-S REMIC III Regular Interest, and the Class PST Certificates will represent beneficial ownership of, among other things, the Class A-S-PST Percentage Interest of the Class A-S REMIC III Regular Interest. The Class A-S REMIC III Regular Interest will be held in the Grantor Trust.
“Class A-S Specific Grantor Trust Assets” means the portion of the Trust consisting of the Class A-S Percentage Interest of the Class A-S REMIC III Regular Interest.
“Class A-S-PST Percentage Interest” means 100.0% minus the Class A-S Percentage Interest. As of the Closing Date, the Class A-S-PST Percentage Interest shall be 0%.
“Class B Percentage Interest” means, the quotient of the Aggregate Certificate Balance of the Class B Certificates divided by the Certificate Balance of the Class B REMIC III Regular Interest. As of the Closing Date, the Class B Percentage Interest shall be 100.0%.
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“Class B REMIC III Regular Interest” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated as “B”, which regular interest bears interest at a per annum rate equal to the Pass-Through Rate with respect to the Class B Certificates. The Class B Certificates will represent beneficial ownership of the Class B Percentage Interest of the Class B REMIC III Regular Interest, and the Class PST Certificates will represent beneficial ownership of, among other things, the Class B-PST Percentage Interest of the Class B REMIC III Regular Interest. The Class B REMIC III Regular Interest will be held in the Grantor Trust.
“Class B Specific Grantor Trust Assets” means the portion of the Trust consisting of the Class B Percentage Interest of the Class B REMIC III Regular Interest.
“Class B-PST Percentage Interest” means 100.0% minus the Class B Percentage Interest. As of the Closing Date, the Class B-PST Percentage Interest shall be 0%.
“Class C Percentage Interest” means, the quotient of the Aggregate Certificate Balance of the Class C Certificates divided by the Certificate Balance of the Class C REMIC III Regular Interest. As of the Closing Date, the Class C Percentage Interest shall be 100.0%.
“Class C REMIC III Regular Interest” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated as “C”, which regular interest bears interest at a per annum rate equal to the Pass-Through Rate with respect to the Class C Certificates. The Class C Certificates will represent beneficial ownership of the Class C Percentage Interest of the Class C REMIC III Regular Interest, and the Class PST Certificates will represent beneficial ownership of, among other things, the Class C-PST Percentage Interest of the Class C REMIC III Regular Interest. The Class C REMIC III Regular Interest will be held in the Grantor Trust.
“Class C-PST Percentage Interest” means 100.0% minus the Class C Percentage Interest. As of the Closing Date, the Class C-PST Percentage Interest shall be 0%.
“Class C Specific Grantor Trust Assets” means the portion of the Trust consisting of the Class C Percentage Interest of the Class C REMIC III Regular Interest.
“Class PST Component” means any of the Class PST Component A-S, Class PST Component B or Class PST Component C.
“Class PST Component A-S” means the portion of the Class A-S REMIC III Regular Interest equal to the Class A-S-PST Percentage Interest of the Class A-S REMIC III Regular Interest.
“Class PST Component A-S Principal Amount” means the product of the Class A-S-PST Percentage Interest and the Certificate Balance of the Class A-S REMIC III Regular Interest.
“Class PST Component B” means the portion of the Class B REMIC III Regular Interest equal to the Class B-PST Percentage Interest of the Class B REMIC III Regular Interest.
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“Class PST Component B Principal Amount” means the product of the Class B-PST Percentage Interest and the Certificate Balance of the Class B REMIC III Regular Interest.
“Class PST Component C” means the portion of the Class C REMIC III Regular Interest equal to the Class C-PST Percentage Interest of the Class C REMIC III Regular Interest.
“Class PST Component C Principal Amount” means the product of the Class C-PST Percentage Interest and the Certificate Balance of the Class C REMIC III Regular Interest.
“Class PST Original A-S Portion” means, with respect to any Class PST Certificate as of any date or time of determination, the product of (a) the principal amount as of the Closing Date set forth on the face of such Certificate after giving effect to any exchanges pursuant to Section 3.3 prior to such date or time of determination and (b) a fraction expressed as a percentage, the numerator of which is the original Certificate Balance of the Class A-S REMIC III Regular Interest and the denominator of which is the aggregate original Certificate Balance of the EC REMIC III Regular Interests.
“Class PST Original B Portion” means, with respect to any Class PST Certificate as of any date or time of determination, the product of (a) the principal amount as of the Closing Date set forth on the face of such Certificate after giving effect to any exchanges pursuant to Section 3.3 prior to such date or time of determination and (b) a fraction expressed as a percentage, the numerator of which is the original Certificate Balance of the Class B REMIC III Regular Interest and the denominator of which is the aggregate original Certificate Balance of the EC REMIC III Regular Interests.
“Class PST Original C Portion” means, with respect to any Class PST Certificate as of any date or time of determination, the product of (a) the principal amount as of the Closing Date set forth on the face of such Certificate after giving effect to any exchanges pursuant to Section 3.3 prior to such date or time of determination and (b) a fraction expressed as a percentage, the numerator of which is the original Certificate Balance of the Class C REMIC III Regular Interest and the denominator of which is the aggregate original Certificate Balance of the EC REMIC III Regular Interests.
“Class PST Percentage Interest” means any of the Class A-S-PST Percentage Interest, the Class B-PST Percentage Interest or the Class C-PST Percentage Interest.
“Class PST Specific Grantor Trust Assets” means the portion of the Trust consisting of the Class PST Components.
“Class V Specific Grantor Trust Assets” means that portion of the Trust consisting of any Excess Interest (whether now or hereafter arising) and the Excess Interest Sub-account.
“Class X Certificate” means any Class X-A Certificate, Class X-B Certificate, Class X-FG Certificate or Class X-H Certificate.
“Class X-A REMIC III Regular Interest” means any of REMIC III Regular Interest X-A-1, REMIC III Regular Interest X-A-2, REMIC III Regular Interest X-A-SB,
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REMIC III Regular Interest X-A-3 and REMIC III Regular Interest X-A-4. The Class X-A REMIC III Regular Interests relate to, and are evidenced by, the Class X-A Certificates.
“Class X-B REMIC III Regular Interest” means REMIC III Regular Interest X-A-S. The Class X-B REMIC III Regular Interest relates to, and is evidenced by, the Class X-B Certificates.
“Class X-FG REMIC III Regular Interest” means any of REMIC III Regular Interest X-F and REMIC III Regular Interest X-G. The Class X-FG REMIC III Regular Interests relate to, and are evidenced by, the Class X-FG Certificates.
“Class X-H REMIC III Regular Interest” means REMIC III Regular Interest X-H. The Class X-H REMIC III Regular Interest relates to, and is evidenced by, the Class X-H Certificates.
“Class X REMIC III Regular Interest” means any Class X-A REMIC III Regular Interest, Class X-B REMIC III Regular Interest, Class X-FG REMIC III Regular Interest or Class X-H REMIC III Regular Interest.
“Class X Strip Rate” means, with respect to any REMIC II Regular Interest for any Distribution Date, the excess, if any, of the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over either (i) if the Corresponding Certificates are not Exchangeable Certificates, the Pass-Through Rate for the Class of Corresponding Certificates, or (ii) if the Corresponding Certificates are Exchangeable Certificates, the Pass-Through Rate on the EC REMIC III Regular Interest bearing the same letter designation as such Class of Exchangeable Certificates.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act, which initially shall be the Depository.
“Clearstream Bank” means Clearstream Banking, société anonyme.
“Closing Date” means June 18, 2015.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form and proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust.
“Collateral Support Deficit” means:
(a) with respect to any REMIC I Regular Interest, as of any Distribution Date, following the deemed distributions with respect to such REMIC I Regular Interest on such Distribution Date pursuant to Section 6.3(a), but prior to any reduction in the REMIC I Principal Amount of such REMIC I Regular Interest on such Distribution Date pursuant to Section 6.6(a), the amount, if any, by which (i) the then Stated Principal Balance of the Mortgage Loan (including an REO Mortgage Loan) as to which such REMIC I Regular Interest is the
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Corresponding REMIC I Regular Interest, is less than (ii) the then REMIC I Principal Amount of such REMIC I Regular Interest;
(b) with respect to the REMIC II Regular Interests, as of any Distribution Date, following any deemed allocations of Trust Advisor Expenses to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest A-SB, REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular Interest A-S, REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II Regular Interest D on such Distribution Date pursuant to Section 6.11 and the deemed distributions with respect to the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.4, but prior to any reduction in the REMIC II Principal Amounts of the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.6(b), the amount, if any, by which (i) the then Aggregate Stated Principal Balance of the Mortgage Loans (including any REO Mortgage Loan) (for purposes of this calculation only, not giving effect to any reductions of such Aggregate Stated Principal Balance for principal payments received on the Mortgage Loans (including any REO Mortgage Loan) that were used to reimburse the Master Servicer, the Special Servicer or the Trustee from general collections of principal on the Mortgage Loans (including any REO Mortgage Loan) for Workout-Delayed Reimbursement Amounts, to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances), is less than (ii) the then aggregate REMIC II Principal Amount of the REMIC II Regular Interests; and
(c) with respect to the Principal Balance Certificates, as of any Distribution Date, following any allocations of Trust Advisor Expenses to the Class A Senior Certificates and the Class A-S, Class B, Class PST, Class C and Class D Certificates on such Distribution Date pursuant to Section 6.11 and the distributions with respect to the Principal Balance Certificates on such Distribution Date pursuant to Section 6.5, but prior to any reduction in the respective Certificate Balances of the Principal Balance Certificates on such Distribution Date pursuant to Section 6.6(c), the amount, if any, by which (i) the then Aggregate Stated Principal Balance of the Mortgage Loans (including any REO Mortgage Loans) (for purposes of this calculation only, not giving effect to any reductions of the Aggregate Stated Principal Balance for principal payments received on the Mortgage Loans (including REO Mortgage Loans) that were used to reimburse the Master Servicer, the Special Servicer or the Trustee from general collections of principal on the Mortgage Loans (including REO Mortgage Loans) for Workout-Delayed Reimbursement Amounts, to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances), is less than (ii) the then Aggregate Certificate Balance of the Principal Balance Certificates.
“Collection Account” means one or more separate accounts established and maintained by the Master Servicer (or any Sub-Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a).
“Collection Period” means, with respect to any Distribution Date, the period beginning on the day after the Determination Date in the month preceding the month of such Distribution Date (or, in the case of the first (1st) Distribution Date, commencing immediately following the Cut-Off Date) and ending on the Determination Date in the month in which the Distribution Date occurs.
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“Collective Consultation Period” means any period when both (i) the Aggregate Certificate Balance of the Class E Certificates, as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9, is less than 25% of the initial Aggregate Certificate Balance of the Class E Certificates and (ii) the Aggregate Certificate Balance of the Class E Certificates, without regard to any Appraisal Reductions allocable to such Class in accordance with Section 6.9, is at least 25% of the initial Aggregate Certificate Balance of the Class E Certificates.
“Commission” means the U.S. Securities and Exchange Commission.
“Compensating Interest” means with respect to any Distribution Date, an amount equal to the lesser of (A) the excess, if any, of (i) Prepayment Interest Shortfalls incurred during the related Collection Period in respect of all Mortgage Loans (and not in respect of any B Note, any Serviced Companion Loan, any Non-Serviced Companion Loan, any Specially Serviced Mortgage Loan or any Mortgage Loan that was previously a Specially Serviced Mortgage Loan with respect to which the Special Servicer has waived or amended the prepayment restrictions) resulting from voluntary or involuntary Principal Prepayments made thereon over (ii) the aggregate of Prepayment Interest Excesses resulting from Principal Prepayments on such Mortgage Loans collected during the related Collection Period and (B) the aggregate of the portion of the aggregate Master Servicing Fee accrued at a rate per annum equal to 0.005% (0.5 basis points) for the related Collection Period calculated in respect of such Mortgage Loans (including any related REO Mortgage Loans), plus any investment income earned on the amount prepaid prior to such Distribution Date; provided that Compensating Interest shall only include (without regard to clause (B) above), the amount of any Prepayment Interest Shortfall otherwise described in clause (A) above incurred in connection with any Principal Prepayment received in respect of any such Mortgage Loan during the related Collection Period to the extent such Prepayment Interest Shortfall occurs as a result of the Master Servicer deviating, or allowing the related Mortgagor to deviate, from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (v) subsequent to a default or imminent default under the related loan documents if the Master Servicer reasonably believes that acceptance of such prepayment is consistent with the Servicing Standard, (w) if the related Mortgage Loan is a Specially Serviced Mortgage Loan, (x) in connection with the payment of Insurance Proceeds or Condemnation Proceeds unless the Master Servicer did not apply the proceeds thereof in accordance with the terms of the related Mortgage Loan documents, (y) pursuant to applicable law or a court order or (z) at the request of or with the consent of the Special Servicer). For the avoidance of doubt, no Repurchased Loan shall be included as a Mortgage Loan for purposes of computing the amount of Compensating Interest. The Master Servicer’s obligations to pay any Compensating Interest, and the rights of the Certificateholders to offset of the aggregate Prepayment Interest Shortfalls against those amounts, shall not be cumulative.
“Condemnation Proceeds” means any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to a Mortgaged Property by or to any governmental, quasi-governmental authority or private entity with condemnation powers other than amounts to be applied to the restoration, preservation or repair of such Mortgaged Property or released to the related Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable) its related
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Serviced B Note or Serviced Companion Loan. With respect to any Mortgaged Property securing any A/B Whole Loan or Loan Pair, only an allocable portion of such Condemnation Proceeds shall be distributable to the Certificateholders. With respect to the Mortgaged Property securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Condemnation Proceeds.
“Consent Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, any and all fees actually paid by a Mortgagor with respect to any consent or approval required pursuant to the terms of the related loan documents that does not involve a restructuring, modification, assumption, extension, waiver or amendment of the terms of such Mortgage Loan documents.
“Control Eligible Certificates” means any of the Class E, Class F, Class G and Class H Certificates.
“Controlling Class” means, as of any time of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has an Aggregate Certificate Balance (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) at least equal to 25% of the initial Aggregate Certificate Balance of such Class; provided that if no Class of Control Eligible Certificates has an Aggregate Certificate Balance (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) at least equal to 25% of the initial Aggregate Certificate Balance of such Class, then the Controlling Class shall be the most senior Class of Control Eligible Certificates. The Controlling Class as of the Closing Date will be the Class H Certificates.
“Controlling Class Certificateholder” means each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar from time to time.
“Controlling Class Representative” means the Controlling Class Certificateholder (or other representative) selected or designated, as applicable, in accordance with Section 10.1.
“Controlling Person” means, with respect to any Person, any other Person who “controls” such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
“Corporate Trust Office” means (i) with respect to the Trustee, the principal corporate trust office of the Trustee, presently located at 1100 North Market Street, Wilmington, Delaware 19890, Attention: MSBAM 2015-C23, (ii) with respect to the Certificate Administrator, the office of the Certificate Administrator located, for certificate transfer purposes, at Wells Fargo Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, and for all other purposes at 9062 Old Annapolis Road, Columbia, Maryland 21045, Client Manager – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, or (iii) with respect to the Custodian, the office of the Custodian located at 1055 10th Avenue SE, Minneapolis, Minnesota 55414, Attention: Global Securities and Trust Services, Morgan Stanley
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Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23; or at such other address as the Trustee, Certificate Administrator or Custodian, as applicable, may designate from time to time by notice to the Certificateholders and each of the other Parties to this Agreement.
“Corresponding Certificates” means the Class of Principal Balance Certificates designated as such in the Preliminary Statement with respect to any REMIC II Regular Interest.
“Corresponding Class X REMIC III Regular Interest” means the Class X REMIC III Regular Interest designated as such in the Preliminary Statement with respect to any REMIC II Regular Interest.
“Corresponding REMIC I Regular Interest” means the REMIC I Regular Interest that relates to any particular Mortgage Loan (including an REO Mortgage Loan or Qualifying Substitute Mortgage Loan that replaces such Mortgage Loan), which REMIC I Regular Interest has the characteristics described in the Preliminary Statement.
“Corresponding REMIC II Regular Interest” means the REMIC II Regular Interest or one of the REMIC II Regular Interests, as applicable, designated as such in the Preliminary Statement with respect to any Class of Principal Balance Certificates, any EC REMIC III Regular Interest, any Class of Class X Certificates or any Class X REMIC III Regular Interest.
“CREFC®” means the CRE Finance Council®, formerly known as Commercial Mortgage Securities Association, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC®” shall be deemed to refer to such other association or organization as may exist whose principal membership consists of servicers, trustees, certificateholders, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and whose principal purpose is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC®” shall be deemed to refer to such other association or organization as shall be selected by the Master Servicer and reasonably acceptable to the Trustee, the Certificate Administrator, the Special Servicer and, during any Subordinate Control Period, the Controlling Class Representative.
“CREFC® Advance Recovery Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
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“CREFC® Bond Level File” means the data file (prepared by the Certificate Administrator) substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Collateral Summary File” means the data file (prepared by the Certificate Administrator) substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Comparative Financial Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Comparative Financial Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Delinquent Loan Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Financial File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Historical Loan Modification and Corrected Mortgage Loan Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification and Corrected Mortgage Loan Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Investor Reporting Package (IRP)” means:
(a) The following seven (7) electronic files (and any other files as may become adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting
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Package (IRP) from time to time): (i) CREFC® Loan Setup File, (ii) CREFC® Loan Periodic Update File, (iii) CREFC® Property File, (iv) CREFC® Bond Level File, (v) CREFC® Financial File, (vi) CREFC® Collateral Summary File and (vii) CREFC® Special Servicer Loan File;
(b) The following eleven supplemental reports (and any other reports as may become adopted and promulgated by CREFC® as part of the CREFC® Investor Reporting Package (IRP) from time to time): (i) CREFC® Delinquent Loan Status Report, (ii) CREFC® Historical Loan Modification and Corrected Mortgage Loan Report, (iii) CREFC® REO Status Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® Comparative Financial Status Report, (vi) CREFC® Servicer Watch List, (vii) CREFC® Loan Level Reserve/LOC Report, (viii) CREFC® NOI Adjustment Worksheet, (ix) CREFC® Advance Recovery Report, (x) CREFC® Total Loan Report and (xi) CREFC® Reconciliation of Funds Report; and
(c) such other reports as CREFC® may designate from time to time.
“CREFC® License Fee” means, with respect to each Mortgage Loan (including a Mortgage Loan that relates to an REO Property or is a Defeasance Loan) for any related Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related CREFC® License Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan during such related Mortgage Loan Accrual Period. Any payments of the CREFC® License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC® to the Master Servicer in writing):
Account Name: Commercial Real Estate Finance Council (CREFC)
Bank Name: JPMorgan Chase Bank, National Association
Bank Address: 80 Broadway, New York, NY 10005
Routing Number: 021000021
Account Number: 213597397
“CREFC® License Fee Rate” means 0.0005% per annum.
“CREFC® Loan Level Reserve/LOC Report” means the monthly report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Loan Periodic Update File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Periodic Update File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
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“CREFC® Loan Setup File” means the data file (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® NOI Adjustment Worksheet” means a report prepared by the Master Servicer with respect to all the Non-Specially Serviced Mortgage Loans, and by the Special Servicer with respect to Specially Serviced Mortgage Loans and, if they relate to any REO Property or REO Mortgage Loans, which report shall be substantially in the form of, and contain the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Operating Statement Analysis Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Property File” means a data file substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Reconciliation of Funds Report” means a monthly report (prepared by the Certificate Administrator) in the “Reconciliation of Funds” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® REO Status Report” means a report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Reports” means the reports and files comprising the CREFC® Investor Reporting Package (IRP), as the forms thereof are modified, expanded or otherwise changed from time to time by the CREFC®.
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“CREFC® Servicer Watch List” means, as of each Determination Date, a report (prepared by the Master Servicer), including and identifying each Non-Specially Serviced Mortgage Loan satisfying the “CREFC® Portfolio Review Guidelines” approved from time to time by the CREFC® in the “CREFC® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.
“CREFC® Special Servicer Loan File” means the report (prepared by the Special Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Total Loan Report” means the monthly report (prepared by the Master Servicer) substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally.
“CREFC® Website” means the CREFC®’s Website located at www.crefc.org or such other primary website as the CREFC® may establish for dissemination of its report forms.
“Crossed Mortgage Loan” has the meaning set forth in Section 2.3(a).
“Custodial Account” means (i) with respect to any Serviced B Note, the related A/B Whole Loan Custodial Account and (ii) with respect to any Serviced Companion Loan, the related Serviced Companion Loan Custodial Account.
“Custodian” means Wells Fargo Bank, National Association and any successor or assign, as provided herein.
“Custodian Fee” means the portion of the Certificate Administrator Fee payable to the Custodian in an amount agreed to between the Custodian and the Certificate Administrator.
“Custodian Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Custodian, the Depositor, the Initial Purchasers and the Underwriters.
“Customer” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Cut-Off Date” means the close of business on June 1, 2015. The Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the first (1st) day of each month
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shall be the close of business on June 1, 2015, and for purposes of determining amounts allocable to the related Seller, Scheduled Payments due in June 2015 with respect to Mortgage Loans not having Due Dates on the first (1st) of each month have been deemed due and received on June 1, 2015, not the actual day or days on which such Scheduled Payments were due.
“Cut-Off Date Principal Balance” means, with respect to any Mortgage Loan, Serviced B Note, A/B Whole Loan, Serviced Companion Loan or Loan Pair, the unpaid principal balance thereof as of its Due Date in June 2015, after application of all payments of principal due on or before such date, whether or not received.
“DBRS” means DBRS, Inc. or its successors in interest. If neither such rating agency nor any successor remains in existence, “DBRS” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Debt Service Coverage Ratio” means, with respect to any Mortgage Loan, as of any date of determination and for any period, the amount calculated for such date of determination in accordance with the formulas set forth in the CREFC® Operating Statement Analysis Report, whether or not the Mortgage Loan has an interest-only period that has not expired as of the Cut-Off Date.
“Debt Service Reduction Amount” means, with respect to a Due Date and the related Determination Date, the amount of the reduction of the Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with respect to a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note as a result of any proceeding under bankruptcy law or any similar proceeding (other than a Deficient Valuation Amount); provided, that in the case of an amount that is deferred, but not forgiven, such reduction shall include only the net present value (calculated at the related Mortgage Rate) of the reduction.
“Default Interest” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, all interest accrued in respect of such Mortgage Loan, A/B Whole Loan or Loan Pair as provided in the related loan documents as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate and, in the case of an ARD Loan after its Anticipated Repayment Date, the per annum rate at which Excess Interest (or the equivalent) accrues, but excluding any such amounts allocable to a Non-Serviced Mortgage Loan and related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement.
“Defaulted Loan” means a Mortgage Loan (other than any Non-Serviced Mortgage Loan) (i) if it is delinquent at least thirty (30) days in respect of its Scheduled Payments or delinquent in respect of its Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any grace period permitted by the related Mortgage Loan documents and without regard to any acceleration of payments under the related Mortgage Loan documents or (ii) as to which the Master Servicer or Special Servicer has, by written notice
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to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note.
“Defeasance Collateral” means, with respect to any Defeasance Loan, the Government Securities required to be pledged in lieu of prepayment pursuant to the terms thereof.
“Defeasance Loan” means any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note which requires or permits the related Mortgagor (or permits the holder of such Mortgage Loan, Serviced Companion Loan or Serviced B Note to require the related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
“Defective Mortgage Loan” has the meaning set forth in Section 2.3(a).
“Deficient Exchange Act Deliverable” means, with respect to the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Sub-Servicer retained by it (other than a Seller Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XIII of this Agreement that does not conform to the express provisions of the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.
“Deficient Valuation” means, with respect to any Mortgage Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Whole Loan or any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged Property (or, with respect to a Non-Serviced Mortgage Loan, the pro rata portion of the valuation allocable to such Non-Serviced Mortgage Loan) relating to such Mortgage Loan, A/B Whole Loan or Loan Pair in an amount less than the then outstanding indebtedness under such Mortgage Loan, A/B Whole Loan or Loan Pair, which valuation results from a proceeding initiated under the United States Bankruptcy Code, as amended from time to time, and that reduces the amount the Mortgagor is required to pay under such Mortgage Loan, A/B Whole Loan or Loan Pair.
“Deficient Valuation Amount” means (i) with respect to each Mortgage Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Whole Loan or any Loan Pair, the amount by which the total amount due with respect to such Mortgage Loan, A/B Whole Loan or Loan Pair (excluding interest not yet accrued), including the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair plus any accrued and unpaid interest thereon and any other amounts recoverable from the Mortgagor with respect thereto pursuant to the terms thereof, is reduced in connection with a Deficient Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage Loan, the portion of any Deficient Valuation Amount for the related A/B Whole Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or Serviced Pari Passu Mortgage Loan, as applicable, under the related Intercreditor Agreement.
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“Definitive Certificates” means Certificates of any Class issued in definitive, fully registered, certificated form without interest coupons.
“Deleted Mortgage Loan” means a Mortgage Loan which is repurchased from the Trust pursuant to the terms hereof or as to which one or more Qualifying Substitute Mortgage Loans are substituted.
“Demand” means any request or demand to repurchase or replace a Mortgage Loan for a breach of representation or warranty or document deficiency.
“Depository” means The Depository Trust Company or its successor in interest.
“Depository Agreement” means the Letter of Representations dated the Closing Date and by and among the Depositor, the Certificate Administrator and the Depository.
“Determination Date” means the 11th calendar day of each month or, if such day is not a Business Day, the next succeeding Business Day, commencing in July 2015.
“Directly Operate” means, with respect to any REO Property, the furnishing or rendering of services to the tenants thereof that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for sale to customers in the ordinary course of a trade or business or any use of such REO Property in a trade or business conducted by the Trust, or the performance of any construction work on the REO Property (other than the completion of a building or improvement, where more than 10% of the construction of such building or improvement was completed before default became imminent), other than through an Independent Contractor; provided that the Special Servicer, on behalf of the Trust, shall not be considered to Directly Operate an REO Property solely because the Special Servicer, on behalf of the Trust, establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
“Disclosable Special Servicer Fees” means, with respect to any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Borrower, any Manager, any guarantor or indemnitor in respect of a Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property and any purchaser of any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (or Loan Pair or A/B Whole Loan, if applicable), the management or disposition of any REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any Special Servicer Compensation to which the Special Servicer is entitled pursuant to Section 9.11 of this Agreement; provided, that to the extent Wells Fargo Bank,
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National Association is acting as Excluded Mortgage Loan Special Servicer, any compensation and other remuneration that Wells Fargo Bank, National Association is permitted to receive or retain pursuant to the terms of this Agreement in connection with its duties in its capacity as Master Servicer or Certificate Administrator under this Agreement shall not be Disclosable Special Servicer Fees.
“Discount Rate” means, for the purposes of the distribution of Prepayment Premiums, (i) if a discount rate was used in the calculation of the applicable Prepayment Premium pursuant to the terms of the related Mortgage Loan, that discount rate, converted (if necessary) to a monthly equivalent yield, and (ii) if a discount rate was not used in the calculation of the applicable Prepayment Premium pursuant to the terms of the related Mortgage Loan, the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi-annually. “Treasury Rate” is the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15–Selected Interest Rates under the heading “U.S. government securities/Treasury constant maturities” for the week ending prior to the date of the relevant Principal Prepayment, of U.S. Treasury constant maturities with a maturity date, one longer and one shorter, most nearly approximating the maturity date (or Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer published, the Certificate Administrator will select a comparable publication to determine the Treasury Rate.
“Dispute” means, with respect to any Demand, any disagreement (whether oral or in writing) between the applicable Request Recipient and the Person making such Demand whether to pursue or act in accordance with, as applicable, such Demand.
“Disqualified Organization” means any of (i) the United States, any State or any political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization or any agency or instrumentality of either of the foregoing, (iii) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code, and (v) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel that the holding of an ownership interest in a Class R Certificate by such Person may cause (A) any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that the Certificates are outstanding, or (B) any of REMIC I, REMIC II or REMIC III or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.
“Distributable Certificate Interest” means, with respect to any Class of REMIC III Regular Certificates or any EC REMIC III Regular Interest for any Distribution Date, the sum
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of: (A) Accrued Certificate Interest in respect of such Class or EC REMIC III Regular Interest for such Distribution Date, reduced (to not less than zero) by (1) any Net Aggregate Prepayment Interest Shortfall allocated on such Distribution Date to such Class or EC REMIC III Regular Interest pursuant to Section 6.7, (2) with respect to each of the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest and the Class D Certificates, any Trust Advisor Expenses allocated on such Distribution Date to such Class or EC REMIC III Regular Interest in reduction of the Distributable Certificate Interest thereon pursuant to Section 6.11, and (3) with respect to each of the Class C REMIC III Regular Interest and the Class D Certificates, any amounts reimbursable in accordance with Section 6.11(c), out of amounts otherwise distributable as interest in respect of such Class or EC REMIC III Regular Interest, to any more senior Class of Certificates or EC REMIC III Regular Interest on such Distribution Date in respect of Trust Advisor Expenses allocated on prior Distribution Dates to such more senior Class of Certificates or EC REMIC III Regular Interest pursuant to Section 6.11, plus (B) if such Distribution Date is subsequent to the initial Distribution Date, any Unpaid Interest in respect of such Class or EC REMIC III Regular Interest for such Distribution Date, plus (C) in the case of a Class of Principal Balance Certificates (other than the Exchangeable Certificates) or an EC REMIC III Regular Interest, if the Aggregate Certificate Balance of such Class of Certificates or the Certificate Balance of such EC REMIC III Regular Interest (and correspondingly, the Certificate Balances of any related Exchangeable Certificates), as applicable, is increased on such Distribution Date in accordance with clause (b) of the definition of “Certificate Balance”, the total amount of interest at the applicable Pass-Through Rate that would have accrued and been distributable with respect to the amount by which the related Aggregate Certificate Balance of such Class of Certificates or the related Certificate Balance of such EC REMIC III Regular Interest (and correspondingly, the Certificate Balances of any related Exchangeable Certificates) was so increased, if such Aggregate Certificate Balance of such Class of Certificates or such Certificate Balance of such EC REMIC III Regular Interest (and correspondingly, the Certificate Balances of any related Exchangeable Certificates) had not been reduced by that amount in connection with the allocation of Collateral Support Deficits in the first place, and assuming that any reinstatements of the Aggregate Certificate Balance of such Class of Certificates, or Certificate Balance of such EC REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of any related Exchangeable Certificates), are in reverse order of the original reductions therein, plus (D) in the case of each of the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest and the Class D Certificates, the amount of any Actual Recoveries of Trust Advisor Expenses allocated in accordance with Section 6.11(c) to such Class of Certificates or EC REMIC III Regular Interest to increase the Distributable Certificate Interest thereof for such Distribution Date, plus (E) in the case of the Class B REMIC III Regular Interest and the Class C REMIC III Regular Interest, any amounts reimbursed in accordance with Section 6.11(c) to such Class of Certificates or EC REMIC III Regular Interest by any more junior Class of Certificates or EC REMIC III Regular Interest on such Distribution Date in respect of Trust Advisor Expenses allocated on prior Distribution Dates to the subject Class of Certificates or EC REMIC III Regular Interest pursuant to Section 6.11. Any increase in the Distributable Certificate Interest with respect to any Class of Principal Balance Certificates (other than the Exchangeable Certificates) or EC REMIC III Regular Interest for any Distribution Date pursuant to clause (C) of the prior sentence shall result in a corresponding reduction of interest payable on unreimbursed allocations of Collateral Support Deficits in
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respect of such Class of Principal Balance Certificates (other than the Exchangeable Certificates) or EC REMIC III Regular Interest.
“Distributable Interest” means, with respect to any REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest for any Distribution Date, the sum of (A) Accrued Interest in respect of such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, for such Distribution Date, reduced (to not less than zero) by (1) any Net Aggregate Prepayment Interest Shortfall allocated on such Distribution Date to such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, pursuant to Section 6.7, and (2) in the case of each of REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II Regular Interest D, the aggregate amount in respect of the Class of Principal Balance Certificates (other than the Exchangeable Certificates) or EC REMIC III Regular Interest, as applicable, with the same alphabetic designation for such Distribution Date described in clause (A)(2) and clause (A)(3) of the definition of “Distributable Certificate Interest”, plus (B) if such Distribution Date is subsequent to the initial Distribution Date, any Unpaid Interest in respect of such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, for such Distribution Date, plus (C) in the case of a REMIC II Regular Interest, if the REMIC II Principal Amount of such REMIC II Regular Interest is increased on such Distribution Date in accordance with the definition of “REMIC II Principal Amount” in conjunction with an increase in the Aggregate Certificate Balance of the Class of Corresponding Certificates (or in the case of REMIC II Regular Interest A-S, REMIC II Regular Interest B or REMIC II Regular Interest C, an increase in the Certificate Balance of the EC REMIC III Regular Interest with the same alphabetic designation), the total amount of interest at the applicable Pass-Through Rate that would have accrued and been distributable with respect to the amount by which the related REMIC II Principal Amount was so increased, if such REMIC II Principal Amount had not been reduced by that amount in connection with the allocation of Collateral Support Deficits in the first place and assuming that the reinstatement of REMIC II Principal Amount is in reverse order of the original reductions therein, plus (D) in the case of each of REMIC II Regular Interest B, REMIC II Regular Interest C and REMIC II Regular Interest D, the aggregate amount in respect thereof (or in respect of the Class of Corresponding Certificates or, in the case of each of REMIC II Regular Interest B and REMIC I Regular Interest C, in respect of the EC REMIC III Regular Interest with the same alphabetic designation) for such Distribution Date described in clause (D) and clause (E) of the definition of “Distributable Certificate Interest”. Any increase in the Distributable Interest with respect to any REMIC II Regular Interest for any Distribution Date pursuant to clause (C) of the prior sentence shall result in a corresponding reduction of interest payable on unreimbursed allocations of Collateral Support Deficits in respect of such REMIC II Regular Interest.
“Distribution Account” means, collectively, the Distribution Account maintained by the Certificate Administrator on behalf of the Trustee, in accordance with the provisions of Section 5.3 and the Excess Interest Sub-Account.
“Distribution Date” means, with respect to any Determination Date, the fourth (4th) Business Day after the related Determination Date, commencing in July 2015. The first Distribution Date shall be July 17, 2015.
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“Distribution Date Statement” means, with respect to any Distribution Date, a report substantially in the form of Exhibit K attached hereto, setting forth, among other things, the following information:
(a) the amount of the distribution on such Distribution Date to the Holders of each Class of Principal Balance Certificates in reduction of the Aggregate Certificate Balance of such Class of Certificates (with respect to the Class PST Certificates, also separately identifying the portion of such amount allocated to each Class PST Component);
(b) the amount of the distribution on such Distribution Date to the Holders of each Class of REMIC III Regular Certificates and Exchangeable Certificates allocable to the interest distributable on such Class of Certificates (with respect to the Class PST Certificates, also separately identifying the portion of such amount allocated to each Class PST Component);
(c) the aggregate amount of P&I Advances made in respect of the Mortgage Loans (including REO Mortgage Loans) for such Distribution Date;
(d) the aggregate amount of compensation paid to the Certificate Administrator, Trustee, Custodian and the Trust Advisor, and servicing compensation paid to the Master Servicer and the Special Servicer, in respect of the related Distribution Date;
(e) the aggregate Stated Principal Balance of the Mortgage Loans (including REO Mortgage Loans) outstanding immediately before and immediately after such Distribution Date;
(f) the number, aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans (excluding REO Mortgage Loans) as of the end of the related Collection Period;
(g) (i) the number and aggregate principal balance of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent ninety (90) days or more and (D) current but specially serviced or in foreclosure but not an REO Property and (ii) the information described in Item 1100(b)(5) of Regulation AB to the extent material;
(h) the value of any REO Property included in the Trust Fund as of the end of the related Collection Period, on a loan-by-loan basis, based on the most recent appraisal or valuation;
(i) the Available Distribution Amount for such Distribution Date;
(j) the amount of the distribution on such Distribution Date to the Holders of any Class of REMIC III Regular Certificates or Exchangeable Certificates allocable to Prepayment Premiums (with respect to the Class PST Certificates, also separately identifying the portion of such amount allocated to each Class PST Component);
(k) the total Distributable Certificate Interest for each Class of Certificates (other than the Exchangeable Certificates) and each EC REMIC III Regular Interest (and separately identifying the portions of such amount attributable to each of the corresponding Class
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of Exchangeable Certificates and the corresponding Class PST Component that has the same letter designation as such EC REMIC III Regular Interest) for such Distribution Date, whether or not paid;
(l) the Pass-Through Rate in effect for each Class of REMIC III Regular Certificates, EC REMIC III Regular Interest and Exchangeable Certificates (other than the Class PST Certificates) for such Distribution Date;
(m) the Principal Distribution Amount for such Distribution Date, separately setting forth the portion thereof that represents scheduled principal and the portion thereof representing prepayments and other unscheduled collections in respect of principal;
(n) the Aggregate Certificate Balance or Notional Amount, as the case may be, of each Class of REMIC III Regular Certificates, each Class of Exchangeable Certificates (and, in the case of the Class PST Certificates, the portion of such amount attributable to each Class PST Component) and each EC REMIC III Regular Interest immediately before and immediately after such Distribution Date, separately identifying any reduction in these amounts as a result of the allocation of Collateral Support Deficit (and, in the case of the Class PST Certificates, the portion of such amount allocable to each Class PST Component) and Excess Trust Advisor Expenses (and, in the case of the Class PST Certificates, the portion of such amount allocable to each Class PST Component);
(o) the amount of any Appraisal Reductions in effect as of such Distribution Date on a loan-by-loan basis and the aggregate amount of Appraisal Reductions as of such Distribution Date;
(p) the number and aggregate principal balance of any Mortgage Loans extended or modified during the related Collection Period on a loan-by-loan basis;
(q) the amount of any remaining unpaid Distributable Certificate Interest for each Class of Certificates (other than the Class V and Class R Certificates) and each EC REMIC III Regular Interest (and, in the case of the Class PST Certificates, the portion of such amount allocable to each Class PST Component); and, in the case of the Class B, Class PST, Class C and Class D Certificates, any unreimbursed interest shortfalls for such Class of Certificates resulting from the allocation of Trust Advisor Expenses (and, in the case of the Class PST Certificates, the portion of such amount allocable to each Class PST Component), as of the close of business on such Distribution Date;
(r) a loan-by-loan listing of each Mortgage Loan which was the subject of a Principal Prepayment during the related Collection Period and the amount of such Principal Prepayment occurring;
(s) the amount of the distribution on such Distribution Date to the Holders of each Class of Principal Balance Certificates in reimbursement of Collateral Support Deficits (and, in the case of the Class PST Certificates, the portion of such amount allocable to each Class PST Component) and Trust Advisor Expenses (with respect to the Class PST Certificates, separately identifying such amount allocated to each of the Class PST Components) previously allocated thereto;
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(t) the aggregate Unpaid Principal Balance of the Mortgage Loans (including REO Mortgage Loans) outstanding as of the close of business on the related Determination Date;
(u) with respect to any Mortgage Loan as to which a Final Recovery Determination was made during the related Collection Period (other than through a payment in full), (A) the loan number thereof, (B) the aggregate of all Liquidation Proceeds which are included in the Available Distribution Amount and other amounts received in connection with the Final Recovery Determination (separately identifying the portion thereof allocable to distributions on the Certificates), and (C) the amount of any Realized Loss attributable to the Final Recovery Determination;
(v) with respect to any REO Property as to which a Final Recovery Determination was made during the related Collection Period, (A) the loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Certificates), and (C) the amount of any Realized Loss attributable to the related REO Mortgage Loan in connection with that determination;
(w) the aggregate amount of interest on P&I Advances in respect of the Mortgage Loans paid to the Master Servicer and/or the Trustee since the prior Distribution Date;
(x) the aggregate amount of interest on Servicing Advances in respect of the Mortgage Loans paid to the Master Servicer, the Special Servicer and/or the Trustee since the prior Distribution Date;
(y) a loan-by-loan listing of any Mortgage Loan which was defeased during the related Collection Period;
(z) a loan-by-loan listing of any Mortgage Loan that was the subject of material modification, extension or waiver during the related Collection Period;
(aa) a loan-by-loan listing of any Mortgage Loan that was the subject of a Material Breach of a representation or warranty given with respect thereto by the applicable Seller, as provided by the Master Servicer, the Special Servicer or the Depositor;
(bb) the respective amounts of the distributions on such Distribution Date to the Holders of the Class V and Class R Certificates;
(cc) the Distribution Date, Record Date, Interest Accrual Period and Determination Date for the related Distribution Date;
(dd) an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period;
(ee) exchanges of Exchangeable Certificates that took place since the last Distribution Date and the designations of the applicable Classes that were exchanged or, if applicable, that no such exchanges have occurred; and
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(ff) the amount of any CREFC® License Fee payable on such Distribution Date.
In the case of the information contemplated by clauses (a), (b), (d), (j), (k), (q) and (s) of this definition, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per $1,000 of original Certificate Balance or Notional Amount, as the case may be.
If and for so long as the Trust is subject to the reporting requirements of the Exchange Act, no Distribution Date Statement that is part of an Exchange Act Filing shall include references to the Rating Agencies or any ratings ascribed by any Rating Agency to any Class of Certificates; provided, that the form of Distribution Date Statement posted on the Certificate Administrator’s Website may include such information.
“Due Date” means, with respect to a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note, the date on which a Scheduled Payment is (or in the case of a Balloon Loan past its maturity date or an REO Loan, would otherwise have been) due.
“Due Diligence Service Provider” has the meaning set forth in Section 5.7(l).
“EC REMIC III Regular Interest” means any of the Class A-S REMIC III Regular Interest, the Class B REMIC III Regular Interest or the Class C REMIC III Regular Interest.
“EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“EDGAR-Compatible Format” means any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.
“Eligible Account” means an account (or accounts) that is any of the following: (i) maintained with a depository institution or trust company (A) whose commercial paper, short-term unsecured debt obligations or other short-term deposits are rated at least “P-1” by Moody’s, at least “F1” by Fitch, and at least “R-1 (middle)” by DBRS or, if not rated by DBRS, an equivalent or higher rating such as those listed above by at least two NRSROs (which may include S&P, Fitch and/or Moody’s), in the case of accounts in which funds are held for 30 days or less or, in the case of accounts in which funds are held for more than 30 days, the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, at least “A” by Fitch, and at least “A” by DBRS or, if not rated by DBRS, an equivalent or higher rating such as those listed above by at least two NRSROs (which may include S&P, Fitch and/or Moody’s), (ii) an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long term unsecured debt rating shall be at least “A2” from Moody’s, at least “A” from Fitch, and at least “A” from DBRS or, if not rated by DBRS, an equivalent or higher rating such as those listed above by at least two NRSROs (which may include S&P, Fitch and/or Moody’s), if the deposits are to be held in the account for more than thirty (30) days, or Wells Fargo Bank, National Association’s commercial paper, short-term deposit or short-term unsecured debt rating shall be at least “P-1” from Moody’s, at least “F1” from Fitch, and at least “R-1(middle)” in the case of DBRS, or if not rated by DBRS, an
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equivalent or higher rating by at least two NRSROs (which may include S&P, Fitch and/or Moody’s), if the deposits are to be held in the account for thirty (30) days or less, (iii) a segregated trust account maintained with the trust department of a federal or state chartered depository institution or trust company (which, subject to the remainder of this clause (iii), may include the Certificate Administrator, the Custodian or the Trustee) acting in its fiduciary capacity, and which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b) and the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, (iv) a transaction account maintained with a depository institution or trust company in which such account is fully insured by the FDIC’s Transaction Account Guarantee Program, (v) an account other than one listed in clauses (i) – (iv) above that is maintained with any insured depository institution that is the subject of a Rating Agency Confirmation from each and every Rating Agency or (vi) an account that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) and (ii) above that is the subject of a Rating Agency Confirmation from each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such account.
“Eligible Investments” means any one or more of the following financial assets or other property:
(i) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof, provided that each such obligation is backed by the full faith and credit of the United States;
(ii) demand or time deposits in, unsecured certificates of deposit of, money market deposit accounts of, or bankers’ acceptances issued by, any depository institution or trust company (including the Trustee, the Custodian, the Master Servicer, the Certificate Administrator or any Affiliate of the Trustee, the Custodian, the Master Servicer or the Certificate Administrator, acting in its commercial capacity) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities, so long as the commercial paper or other short-term debt obligations of such depository institution or trust company are rated in the highest short-term debt rating category of Moody’s, Fitch and DBRS (or, if not rated by DBRS, an equivalent (or higher) rating such as that listed above by at least two NRSROs (which may include Fitch, Moody’s and/or S&P)), or in the case of any such Rating Agency such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and, if the investment described in this clause has a term in excess of three months, the long-term debt obligations of such depository institution or trust company have been assigned a rating by each Rating Agency at least equal to “AAA” (or the equivalent) by each of the Rating Agencies (provided, that if such entity is not rated by Fitch or DBRS, as applicable, then (A) an equivalent (or higher) rating such as that listed above by at least two NRSROs (which may include Fitch, Moody’s and/or S&P) has been assigned to the long-term debt obligations of such depository institution or trust company or (B) Fitch or DBRS, as applicable, has issued a Rating Agency Confirmation with respect to such investment as an Eligible Investment);
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(iii) repurchase agreements or obligations with respect to any security set forth in clause (i) above where such security has a remaining maturity of one (1) year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) set forth in clause (ii) above and where such repurchase obligation will mature prior to the Business Day preceding the next date upon which, as set forth in this Agreement, such amounts are required to be withdrawn from the Collection Account and which meets the minimum rating requirement for such entity set forth above;
(iv) commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) rated as follows: (A) if rated by DBRS, the short term obligations of the issuer of such commercial paper are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs) and, if such commercial paper has a term in excess of six (6) months, the long-term obligations of the issuer of such commercial paper are rated at least “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs); (B) if rated by Moody’s, such commercial paper is rated (i) “A2” or “P-1” if maturing in one (1) month or less, (ii) “A2” or “P-1” if maturing in three (3) months or less but more than one (1) month, (iii) “Aa3” and “P-1” if maturing in six (6) months or less but more than three (3) months, or (iv) “Aaa” and “P-1” if maturing in over six (6) months (provided, that in the case of clauses (ii), (iii) and (iv), investment of funds in any Escrow Account or Reserve Account must only be rated “P-1” by Moody’s) (or, if not rated by Moody’s, as confirmed in a Rating Agency Confirmation by Moody’s); and (C) if rated by Fitch, such commercial paper is rated “F1” or better, unless the obligation is for a term of more than thirty (30) days, in which case such commercial paper either (i) is rated “F1+” or (ii) is rated “F1” and carries a long term rating of “AA-” or better (or, if not rated by Fitch, as confirmed in a Rating Agency Confirmation from Fitch); provided that the investments described in this clause must (x) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (y) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index and (z) such investments must not be subject to liquidation prior to their maturity;
(v) guaranteed reinvestment agreements maturing within 365 days or less issued by any bank, insurance company or other corporation the short-term unsecured debt obligations of which are rated in the highest short-term debt rating category of each of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating from at least two other NRSROs (which may include Fitch, Moody’s and/or S&P), or as confirmed in a Rating Agency Confirmation by DBRS), Moody’s (or such lower rating for which Rating Agency Confirmation is obtained from Moody’s) and Fitch (or such lower rating for which Rating Agency Confirmation is obtained from Fitch) and the long-term unsecured debt obligations of which are rated “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating from at least two NRSROs (which may include Fitch, Moody’s and/or S&P), or as confirmed in a Rating Agency Confirmation by DBRS), in the highest long-term category by Moody’s (or such lower rating for which Moody’s has provided a Rating Agency Confirmation) and in the highest long-term category by Fitch (or such lower rating for which Fitch has provided a Rating Agency Confirmation);
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(vi) Wells Fargo Advantage Heritage Money Market Fund or any other money market funds (including those managed or advised by the Certificate Administrator or its affiliates) that (A) maintain a constant asset value and that are rated by (1) each of Moody’s and Fitch in their highest money market fund ratings category, or as otherwise confirmed in a Rating Agency Confirmation by Moody’s and Fitch, (2) DBRS in its highest money market fund ratings category (or, if not rated by DBRS, an equivalent (or higher) rating from at least two NRSROs (which may include Fitch, Moody’s and/or S&P), or as confirmed in a Rating Agency Confirmation by DBRS or (B)(1) have substantially all of its assets invested continuously in the types of investments referred to in clause (i) above, (2) has net assets of not less than $5,000,000,000, and (3) has the highest rating obtainable for money market funds from Moody’s, Fitch and DBRS (or, if not rated by DBRS, an equivalent (or higher) rating from at least two NRSROs (which may include Fitch, Moody’s and/or S&P);
(vii) an obligation, security or investment that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (ii) - (vi) above, and is the subject of a Rating Agency Confirmation from each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such obligation, security or investment; and
(viii) any other obligation, security or investment other than one listed in clauses (i) – (vi) above, that is the subject of a Rating Agency Confirmation from each and every Rating Agency;
provided (A) such investment is held for a temporary period pursuant to Section 1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by the obligor in U.S. dollars, and (C) that no such instrument shall be an Eligible Investment (1) if such instrument evidences either (a) a right to receive only interest payments or only principal payments with respect to the obligations underlying such instrument or (b) a right to receive both principal and interest payments derived from obligations underlying such instrument and the principal and interest payments with respect to such instrument provide a yield to maturity of greater than 120% of the yield to maturity at par of such underlying obligations, or (2) if it may be redeemed at a price below the purchase price or (3) if it is not treated as a “permitted investment” that is a “cash flow investment” under Section 860G(a)(5) of the Code; and provided, further, that any such instrument shall have a maturity date no later than the date such instrument is required to be used to satisfy the obligations under this Agreement, and, in any event, shall not have a maturity in excess of one (1) year; any such instrument must have a predetermined fixed dollar of principal due at maturity that cannot vary or change; interest on any variable rate instrument shall be tied to a single interest rate index plus a single fixed spread (if any) and move proportionally with that index; and provided, further, that no amount beneficially owned by any REMIC Pool (including any amounts collected by the Master Servicer but not yet deposited in the Collection Account) may be invested in investments treated as equity interests for Federal income tax purposes. No Eligible Investments shall be purchased at a price in excess of par. For the purpose of this definition, units of investment funds (including money market funds) shall be deemed to mature daily.
“Eligible Trust Advisor” means an entity that (i) (A) is (or as to which each of the personnel responsible for supervising the obligations of the Trust Advisor is) (I) regularly
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engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five (5) years of experience in collateral analysis and loss projections and (II) has (or as to which each of the personnel responsible for supervising the obligations of the Trust Advisor has) at least five (5) years of experience in commercial real estate asset management and in the workout and management of distressed commercial real estate assets or (B) is the special servicer or trust advisor/operating advisor on a commercial mortgage-backed securities transaction rated by DBRS, Fitch, KBRA, Moody’s, Morningstar or S&P (including, in the case of Pentalpha Surveillance LLC, this transaction) but has not been special servicer on a transaction for which DBRS, Fitch, KBRA, Moody’s, Morningstar or S&P has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing concerns with the special servicer as the sole or material factor in such rating action, (ii) is not the Depositor, a Seller, the Master Servicer, the Special Servicer or any Affiliate of any of the foregoing, (iii) can and will make the representations and warranties set forth in Section 10.6, (iv) is not the Controlling Class Representative, a Loan-Specific Directing Holder or an Affiliate of the Controlling Class Representative or a Loan-Specific Directing Holder and (v) has not been paid by the Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations under this Agreement or (y) for the appointment or recommendation for replacement of a successor special servicer to become the Special Servicer.
“Environmental Insurance Policy” means, with respect to any Mortgage Loan or the related Mortgaged Property or REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect of such Mortgage Loan, Mortgaged Property or REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.
“Environmental Laws” means any and all federal, state and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions, now or hereafter in effect, relating to health or the environment or to emissions, discharges or releases of chemical substances, including, without limitation, any and all pollutants, contaminants, petroleum or petroleum products, asbestos or asbestos-containing materials, polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial, toxic or hazardous substances or wastes, into the environment, including, without limitation, ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, labeling, registration, treatment, storage, disposal, transport or handling of any of the foregoing substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Escrow Account” means an account established by or on behalf of the Master Servicer pursuant to, and in accordance with the requirements of, Section 8.3(e).
“Escrow Amount” means any amount payable with respect to a Mortgage Loan, A/B Whole Loan or Loan Pair for taxes, assessments, water rates, Standard Hazard Insurance Policy premiums, ground lease payments, reserves for capital improvements, deferred
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maintenance, repairs, tenant improvements, leasing commissions, rental achievements, environmental matters and other reserves or comparable items.
“Euroclear Bank” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“Excess Interest” means, with respect to any ARD Mortgage Loan that is not prepaid in full on or before its Anticipated Repayment Date, the excess, if any of (i) interest accrued at the rate of interest applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any interest on such interest as may be provided for under the related Mortgage Loan documents) over (ii) interest accrued at the rate of interest applicable to such Mortgage Loan before such Anticipated Repayment Date, to the extent such excess interest is payable under the related Mortgage Loan documents only after the outstanding principal balance of the related ARD Mortgage Loan has been paid in full. Excess Interest on an ARD Mortgage Loan is an asset of the Trust, but shall not be an asset of any REMIC Pool formed hereunder.
“Excess Interest Sub-account” means an administrative account that is (or, to the extent it is established as a separate account, is deemed to be) a sub-account of the Distribution Account; provided, that any separate account constituting the Excess Interest Sub-account shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Class V, Excess Interest Sub-account” and shall conform to the requirements applicable to the Distribution Account set forth in Section 5.3(a). The Excess Interest Sub-account shall not be an asset of any REMIC Pool.
“Excess Liquidation Proceeds” means, with respect to any Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO Property, over (ii) the amount that would have been received if a Principal Prepayment in full had been made with respect to such Mortgage Loan (or, in the case of an REO Property related to an A/B Whole Loan, a Principal Prepayment in full had been made with respect to both the related A Note and Serviced B Note, or, in the case of an REO Property related to a Loan Pair, a Principal Prepayment in full had been made with respect to both the Serviced Pari Passu Mortgage Loan and the Serviced Companion Loan) on the date such proceeds were received plus accrued and unpaid interest with respect to such Mortgage Loan and any and all expenses (including Additional Trust Expenses and Unliquidated Advances) with respect thereto. In the case of an A/B Whole Loan or Loan Pair, Excess Liquidation Proceeds means only the portion of such proceeds that are allocated to the Trust pursuant to the related Intercreditor Agreement.
“Excess Liquidation Proceeds Reserve Account” means the Excess Liquidation Proceeds Reserve Account maintained by the Certificate Administrator in accordance with the provisions of Section 5.3, which shall be a subaccount of an Eligible Account.
“Excess Modification Fees” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, the sum of (a) any and all Unallocable Modification Fees with respect to any modification, waiver, extension or amendment of any of the terms of such Mortgage Loan (or A/B Whole Loan or Loan Pair, as
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applicable) (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), (b) the excess, if any, of (i) any and all Allocable Modification Fees with respect to any modification, waiver, extension or amendment of any of the terms of such Mortgage Loan (or A/B Whole Loan or Loan Pair, as applicable) (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), over (ii) all unpaid or unreimbursed Additional Trust Expenses outstanding or previously incurred with respect to such Mortgage Loan (or A/B Whole Loan or Loan Pair, as applicable) that are reimbursed from such Allocable Modification Fees (which Additional Trust Expenses shall be reimbursed from such Allocable Modification Fees (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Allocable Modification Fees payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement)), and (c) expenses previously paid or reimbursed from Allocable Modification Fees as described in the preceding clause (b), which expenses have been recovered from the related Mortgagor or otherwise.
“Excess Penalty Charges” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, the sum of (a) the excess, if any, of (i) any and all Penalty Charges collected in respect of such Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Penalty Charges payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), over (ii) all unpaid or unreimbursed Additional Trust Expenses outstanding or previously incurred, with respect to the related Mortgage Loan, A/B Whole Loan or Loan Pair, as the case may be, that are reimbursed from such Penalty Charges (which Additional Trust Expenses shall be reimbursed from such Penalty Charges (exclusive, in the case of an A/B Whole Loan or a Loan Pair, of any portion of such Penalty Charges payable to the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement)), and (b) expenses previously paid or reimbursed from Penalty Charges as described in the preceding clause (a), which expenses have been recovered from the related Mortgagor or otherwise.
“Excess Servicing Fee” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), that portion of the Master Servicing Fee that accrues in the same manner as the Master Servicing Fee at a per annum rate equal to the Excess Servicing Fee Rate.
“Excess Servicing Fee Rate” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), a rate per annum equal to the Master Servicing Fee Rate minus 0.005% (0.5 basis points); provided, that such rate shall be subject to reduction at any time following any resignation of the Master Servicer pursuant to Section 8.22 of this Agreement (if no successor is appointed in accordance with such Section) or any termination of the Master Servicer pursuant to Section 8.28 of this Agreement, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 8.22(b) of this Agreement.
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“Excess Servicing Fee Right” means with respect to each Mortgage Loan and Serviced Companion Loan (and any successor REO Loan with respect thereto), the right to receive the related Excess Servicing Fee. In the absence of any transfer of any Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.
“Excess Trust Advisor Expenses” means, with respect to each Distribution Date, an amount equal to the positive amount, if any, of the Trust Advisor Expenses for such Distribution Date, less the amount of any such Trust Advisor Expenses allocated to reduce the aggregate Distributable Certificate Interest of the Class B REMIC III Regular Interest (and correspondingly, the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest), Class C REMIC III Regular Interest (and correspondingly, the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) and the Class D Certificates for such Distribution Date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Exchange Act Filing” means each report on Form 10-D, Form 10-K or Form 8-K that has been filed by the Certificate Administrator with respect to the Trust through the EDGAR system.
“Exchange Certification” means an Exchange Certification substantially in the form set forth in Exhibit G hereto executed by a holder of an interest in a Regulation S Global Certificate or a Rule 144A Global Certificate, as applicable.
“Exchange Date” has the meaning set forth in Section 3.10(a) of this Agreement.
“Exchange Proportion” means Exchangeable Certificates consisting of Class A-S, Class B and Class C Certificates with original Aggregate Certificate Balances (regardless of current Aggregate Certificate Balance) that represent approximately 41.176%, 33.088% and 25.735%, respectively, of the original Aggregate Certificate Balances of all Class A-S, Class B and Class C Certificates involved in the exchange.
“Exchangeable Certificate” means any of the Class A-S, Class B, Class PST or Class C Certificates.
“Excluded Mortgage Loans” means any Mortgage Loan with respect to which LNR Partners, LLC is an Affiliate of a Mortgagor under such Mortgage Loan or a Manager of a Mortgaged Property securing such Mortgage Loan. As of the Closing Date, the Excluded Mortgage Loans are the Mortgage Loans identified on the Mortgage Loan Schedule as “Aviare Place Apartments,” “Residence Inn - North Dartmouth, MA” and “Hawthorne House Apartments.” For the avoidance of doubt, any Mortgage Loan with respect to which LNR Partners, LLC is not an Affiliate of a Mortgagor under such Mortgage Loan or a Manager of a Mortgaged Property securing such Mortgage Loan (including, without limitation, as a result of a release of the related Mortgagor in connection with any payoff, foreclosure or deed in lieu of foreclosure or as a result of such Mortgage Loan becoming an REO Mortgage Loan) shall not be
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an Excluded Mortgage Loan and shall be specially serviced by LNR Partners, LLC, or its successor in interest, or any successor General Special Servicer appointed as herein provided, and there shall be a Controlling Class Representative (including, to the extent applicable, LNR Securities Holdings, LLC) with respect to such Mortgage Loan.
“Excluded Mortgage Loan Special Servicer” means Wells Fargo Bank, National Association, or its successor in interest, or any successor Excluded Mortgage Loan Special Servicer appointed as herein provided. For the avoidance of doubt, with respect to each Excluded Mortgage Loan, the Excluded Mortgage Loan Special Servicer shall be entitled to all Special Servicer compensation earned during such time as such Excluded Mortgage Loan is an Excluded Mortgage Loan; LNR Partners, LLC shall be entitled to all other Special Servicer compensation.
“Exemption” means each of the individual prohibited transaction exemptions relating to pass-through certificates and the operation of asset pool investment trusts granted by the United States Department of Labor to the Underwriters and Initial Purchasers, as amended.
“Expense Loss” means a loss realized upon payment by the Trust of an Additional Trust Expense.
“Extension” has the meaning set forth in Section 9.15(a).
“Fannie Mae” means the Federal National Mortgage Association, or any successor thereto.
“FDIC” means the Federal Deposit Insurance Corporation or any successor thereto.
“Final Asset Status Report” means, with respect to any Specially Serviced Mortgage Loan, each related Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the Controlling Class Representative or any related Loan-Specific Directing Holder, in each case, which does not include any communication between the Special Servicer and the Controlling Class Representative or any related Loan-Specific Directing Holder, as applicable, with respect to such Specially Serviced Mortgage Loan; provided that no Asset Status Report shall be considered to be a Final Asset Status Report unless (i) the Applicable Control Party has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to this Agreement in respect of such actions, or has been deemed to have approved or consented to such actions, or (ii) the Asset Status Report is otherwise implemented by the Special Servicer in accordance with this Agreement.
“Final Certification” has the meaning set forth in Section 2.2.
“Final Judicial Determination” has the meaning set forth in Section 2.3(a).
“Final Prospectus” has the meaning set forth in the Preliminary Statement hereto.
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“Final Recovery Determination” means a determination with respect to any Mortgage Loan, Serviced B Note, Serviced Companion Loan or REO Property by the Special Servicer in consultation with the Applicable Control Party, and the Master Servicer (including a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note that relates to an REO Property), in each case, in its good faith discretion, consistent with the Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or recoveries that the Special Servicer expects to be finally recoverable on such Mortgage Loan, Serviced B Note, Serviced Companion Loan or REO Property, without regard to any obligation of the Master Servicer, the Special Servicer or the Trustee, as the case may be, to make payments from its own funds pursuant to Article IV hereof, have been recovered.
“Final Scheduled Distribution Date” means, for each Class of rated Certificates, the Distribution Date on which such Class would be paid in full if payments were made on the Mortgage Loans in accordance with their terms, except that ARD Mortgage Loans are assumed to be repaid on their Anticipated Repayment Dates.
“Financial Market Publishers” means BlackRock Financial Management, Inc., Trepp, LLC, Bloomberg L.P., Thomson Reuters, CMBS.com, Inc., Intex Solutions, Inc. and Markit Group Limited, or any successor entities thereof.
“Fitch” means Fitch Ratings, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Form 8-K Disclosure Information” has the meaning set forth in Section 13.7.
“Franchise Mortgage Loan” has the meaning set forth in Section 2.1(d).
“Free Writing Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Freddie Mac” means the Federal Home Loan Mortgage Corporation, or any successor thereto.
“General Special Servicer” means LNR Partners, LLC, or its successor in interest, or any successor General Special Servicer appointed as herein provided.
“Global Certificate” means any Registered Global Certificate, Rule 144A Global Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent Global Certificate.
“Government Securities” has the meaning set forth in Section 2(a)(16) of the Investment Company Act of 1940, as amended.
“Grantor Trust” has the meaning set forth in the Preliminary Statement hereto.
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“Hazardous Materials” means any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including, without limitation, those so identified pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental laws now or hereafter existing, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.
“Hilton Garden Inn W 54th Street B Note” means the promissory note designated as “Note B,” that is generally subordinate in right of payment to the Hilton Garden Inn W 54th Street Mortgage Loan and the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan to the extent provided in the Hilton Garden Inn W 54th Street Intercreditor Agreement. The Hilton Garden Inn W 54th Street B Note is not a “Mortgage Loan” and is not included in the Trust.
“Hilton Garden Inn W 54th Street Directing Holder” means the “Controlling Note Holder” or any analogous concept under the Hilton Garden Inn W 54th Street Intercreditor Agreement.
“Hilton Garden Inn W 54th Street Intercreditor Agreement” means the intercreditor, co-lender or comparable agreements between the initial holders of the promissory notes comprising the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination.
“Hilton Garden Inn W 54th Street Mortgage” means the Mortgage securing the Hilton Garden Inn W 54th Street Mortgage Loan, the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan and the Hilton Garden Inn W 54th Street B Note.
“Hilton Garden Inn W 54th Street Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-3” and identified as “Hilton Garden Inn W 54th Street” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement and that is, together with the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan, generally senior in right of payment to the Hilton Garden Inn W 54th Street B Note to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement. The Hilton Garden Inn W 54th Street Mortgage Loan is a “Mortgage Loan.”
“Hilton Garden Inn W 54th Street Non-Serviced Companion Loan” means, collectively, the promissory notes designated as “Note A-1” and “Note A-2” that are not included in the Trust and that are pari passu in right of payment with the Hilton Garden Inn W 54th Street Mortgage Loan to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement and that are, together with the Hilton Garden Inn W 54th Street Mortgage Loan, generally senior in right of payment to the Hilton Garden Inn W 54th Street B Note to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement. The Hilton Garden Inn W 54th Street Non-Serviced Companion Loan is not a “Mortgage Loan.”
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“Hilton Garden Inn W 54th Street Non-Serviced Loan Combination” means, collectively, the Hilton Garden Inn W 54th Street Mortgage Loan, the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan and the Hilton Garden Inn W 54th Street B Note.
“Holder” means the Person in whose name a Certificate is registered on the Certificate Register (and, solely for the purposes of distributing reports, statements or other information pursuant to this Agreement, any Certificate Owner or potential transferee of a Certificate to the extent the Person distributing such information has been provided with an Investor Certification; provided, that this Agreement, the Final Prospectus, the Distribution Date Statements and the Exchange Act Reports shall be made available to the general public). Solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, a manager of a Mortgaged Property, a Mortgagor or any of their respective Affiliates will be deemed not to be outstanding and the Voting Rights to which they are entitled will not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained. Notwithstanding any of the foregoing to the contrary, any Certificate owned by LNR Securities Holdings, LLC or an Affiliate thereof will be deemed to remain outstanding despite any ownership interest of its Affiliate in a Mortgagor under any Excluded Mortgage Loan, but shall be deemed not to be outstanding for purposes of any action or consent with respect to any Excluded Mortgage Loans. Notwithstanding the foregoing, for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates will be outstanding if such amendment does not relate to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates. Also, notwithstanding the foregoing, subject to any restrictions set forth in Section 10.1(c), the restrictions above will not apply to the exercise of the rights of the Master Servicer, the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer, if any, as a member of the Controlling Class.
“Independent” means, when used with respect to (i) any Accountants, a Person who is “independent” within the meaning of Rule 2-01(B) of the Commission’s Regulation S-X and (ii) any other Person, a Person who (A) is in fact independent of another specified Person and any Affiliate of such other Person, (B) does not have any material direct or indirect financial interest in such other Person or any Affiliate of such other Person, (C) is not connected with such other Person or any Affiliate of such other Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions and (D) is not a member of the immediate family of a Person described in clause (B) or (C) above.
“Independent Contractor” means, either (i) with respect to any Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated by the Master Servicer (other than the Master Servicer, but which may be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced Mortgage Loan, any Person designated by the Special Servicer that would be an “independent contractor” with respect to a REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment trust (except
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that the ownership test set forth in such Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of the Aggregate Certificate Balance or Notional Amount, as the case may be, of any Class of the Certificates (other than the Class V and the Class R Certificates), a Percentage Interest of 35% or more in the Class V Certificates, a Percentage Interest of 35% or more in the Class R Certificates or such other interest in any Class of the Certificates or of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool does not receive or derive any income from such Person and provided that the relationship between such Person and such REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which shall be at the expense of the Person delivering such opinion to the Trustee, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code), or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.
“Initial Certification” has the meaning set forth in Section 2.2.
“Initial Deposit” means the amount of all collections made on the Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
“Initial Purchaser” means each of Morgan Stanley & Co. LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, and, in each case, its respective successor in interest.
“Inquiries” has the meaning set forth in Section 5.4(c).
“Inspection Report” means, with respect to a Mortgaged Property, a report substantially in the form of, and containing the information called for in, the downloadable form of the “Property Inspection Form” available on the CREFC® Website.
“Institutional Accredited Investor” means an institutional accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D of the Securities Act or any entity in which all of the equity owners are institutional accredited investors qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D of the Securities Act.
“Insurance Policies” means, collectively, any Standard Hazard Insurance Policy, flood insurance policy, title insurance policy, terrorism insurance policy or Environmental Insurance Policy relating to the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter during the term of this Agreement.
“Insurance Proceeds” means amounts paid by the insurer under any Insurance Policy in connection with a Mortgage Loan, Serviced B Note or Serviced Companion Loan, other than amounts required to be paid over to the Mortgagor pursuant to law and the related Mortgage Loan documents in accordance with the Servicing Standard. With respect to any
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Mortgaged Property securing any A/B Whole Loan or Loan Pair, only an allocable portion of such Insurance Proceeds shall be distributable to the Certificateholders. With respect to the Mortgaged Property securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Insurance Proceeds.
“Intercreditor Agreement” means: (a) with respect to an A/B Whole Loan, the related intercreditor, co-lender or similar agreement in effect from time to time by and between the holder of the related A Note(s) and the holder of any related Serviced B Note relating to the relative rights of such holders; (b) with respect to a Loan Pair, the related intercreditor, co-lender or similar agreement in effect from time to time by and between the holders of the related Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan relating to the relative rights of such holders; (c) with respect to any Non-Serviced Loan Combination, the related intercreditor agreement, co-lender agreement or similar agreement in effect from time to time between the holders of the related Non-Serviced Companion Loan and Non-Serviced Mortgage Loan (and, in the case of the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination and the US StorageMart Portfolio Non-Serviced Loan Combination, each related B Note); and (d) solely with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and the provisions of Section 8.30 hereof.
“Interest Accrual Period” means, with respect to any REMIC I Regular Interest, REMIC II Regular Interest, Class X REMIC III Regular Interest, Class of REMIC III Regular Certificates, REMIC III Regular Interest or Class of Exchangeable Certificates, the period beginning on the first (1st) day of the month preceding the month in which such Distribution Date occurs and ending on the last day of the month immediately preceding the month in which such Distribution Date occurs.
“Interest Reserve Account” means any Interest Reserve Account maintained by the Certificate Administrator pursuant to Section 5.3(a), which shall be a subaccount of an Eligible Account.
“Interest Reserve Amount” has the meaning set forth in Section 5.3(b).
“Interest Reserve Loans” means the Mortgage Loans that bear interest other than on a 30/360 Basis.
“Interested Person” means, as of any date of determination, the Master Servicer, the Special Servicer, the Depositor, the holder of any related Junior Indebtedness (with respect to any particular Mortgage Loan), a Holder or Certificate Owner of 50% or more of the Controlling Class, the Controlling Class Representative, the Trust Advisor, any Seller, any Mortgagor, any Manager, any Independent Contractor engaged by the Master Servicer or the Special Servicer pursuant to this Agreement, or any Person actually known to a Responsible Officer of the Trustee or the Certificate Administrator to be an Affiliate of any of them.
“Investor Certification” means a certificate substantially in the form of Exhibit I to this Agreement or in the form of an electronic certification contained on the Certificate
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Administrator’s Website representing that the person executing the certificate (1) is a Certificateholder, a Certificate Owner, a prospective purchaser that, in the case of a Registered Certificate, has received a copy of the Final Prospectus, or a holder of a Serviced B Note or Serviced Companion Loan and (2) is not a Mortgagor, a Manager, an Affiliate of a Mortgagor or Manager or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing. The Certificate Administrator may require that Investor Certifications are resubmitted from time to time in accordance with its policies and procedures.
“Investor Q&A Forum” has the meaning set forth in Section 5.4(c).
“Investor Registry” has the meaning set forth in Section 5.4(d).
“IRS” means the Internal Revenue Service.
“Joint Mortgage Loan” means a Mortgage Loan originated by more than one Seller. There are no Joint Mortgage Loans related to the Trust.
“Junior Indebtedness” means any indebtedness of any Mortgagor that is secured by a lien that is junior in right of payment to the lien of the Mortgage securing the related Mortgage Note.
“KBRA” means Kroll Bond Rating Agency, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “KBRA” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Late Collections” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, all amounts received during any Collection Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments or collections of Scheduled Payments due but delinquent for a previous Collection Period and not previously recovered; provided that “Late Collections” shall not include any Actual Recoveries of Trust Advisor Expenses.
“Late Fee” means a fee paid or payable, as the context may require, to the related lender by a Mortgagor as provided in the related Mortgage Loan, A/B Whole Loan or Loan Pair in connection with a late payment made by such Mortgagor, but excluding any such amounts allocable to a Non-Serviced Mortgage Loan and related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement, and, with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, including only the portion of such amounts that is received by the Trust in accordance with Section 8.30 hereof.
“Lender Register” has the meaning set forth in Section 8.26.
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“Liquidation Expenses” means reasonable and direct expenses incurred by the Special Servicer on behalf of the Trust in connection with the liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in respect thereof including, without limitation, reasonable legal fees and expenses in connection with a closing, brokerage commissions and conveyance taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of income from the related REO Property, to the extent available, (ii) paid out of related proceeds from liquidation or (iii) advanced by the Master Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e) hereof, as a Servicing Advance.
“Liquidation Fee” means a fee payable with respect to the final disposition or liquidation of any Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is a Specially Serviced Mortgage Loan (including, for this purpose, any related Serviced Companion Loan or Serviced B Note) or REO Property (other than any REO Property related to a Non-Serviced Mortgage Loan) equal to the lesser of (1) $1,000,000 and (2) the product of (x) 1.0% and (y) the Liquidation Proceeds received in connection with a final disposition of, and any Condemnation Proceeds and Insurance Proceeds received by the Trust (net of any expenses incurred by the Special Servicer on behalf of the Trust in connection with the collection of such Condemnation Proceeds and Insurance Proceeds) with respect to, such Specially Serviced Mortgage Loan or REO Property or portion thereof; provided, that the Liquidation Fee with respect to any Specially Serviced Mortgage Loan or REO Property shall be reduced by the amount of any Excess Modification Fees actually received by the Special Servicer as additional servicing compensation (i) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior eighteen (18) months in connection with each modification, restructure, extension, waiver or amendment that constituted a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Specially Serviced Mortgage Loan and (ii) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior nine (9) months in connection with each modification, restructure, extension, waiver or amendment that constitutes a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Non-Specially Serviced Mortgage Loan, but, in each case, only to the extent those Excess Modification Fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee will be payable based upon, or out of, Liquidation Proceeds received in connection with (i) the repurchase of, or substitution for, any Mortgage Loan by the related Seller or its Seller Guarantor under the related Mortgage Loan Purchase Agreement for a Material Breach or Material Document Defect, if such repurchase or substitution occurs on or before 180 days after the discovery or receipt of notice by the related Seller or such Seller Guarantor of the Material Document Defect or Material Breach, as applicable, that gave rise to the particular repurchase or substitution obligation, (ii) the purchase of any Specially Serviced Mortgage Loan that is, or is part of, an A/B Whole Loan or Loan Pair by the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, within ninety (90) days following the date that such holder’s option to purchase the related Mortgage Loan first becomes exercisable, (iii) the purchase of any Specially Serviced Mortgage Loan by the holder of any related mezzanine loan, pursuant to the related mezzanine loan intercreditor agreement, within ninety (90) days following the date that such holder’s option to purchase such Specially Serviced
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Mortgage Loan first becomes exercisable, (iv) the purchase of all of the Mortgage Loans and REO Properties in connection with an optional termination of the Trust, (v) the purchase of any Specially Serviced Mortgage Loan by the Special Servicer or any Affiliate thereof (other than the Controlling Class Representative), or (vi) the purchase of any Specially Serviced Mortgage Loan or related REO Property, by the Controlling Class Representative or any affiliate thereof (other than the Special Servicer), if such purchase occurs within ninety (90) days after the date on which the Special Servicer delivers to the Controlling Class Representative for its approval the initial Asset Status Report with respect to such Specially Serviced Mortgage Loan. For the avoidance of doubt, the Special Servicer may not receive a Workout Fee and a Liquidation Fee with respect to the same proceeds collected on a Mortgage Loan, Serviced Companion Loan, Serviced B Note or REO Loan. Notwithstanding the foregoing, if a Mortgage Loan, Serviced B Note or Serviced Companion Loan becomes a Specially Serviced Mortgage Loan only because of an event described in clause (i) of the definition of “Servicing Transfer Event” as a result of a payment default on the related maturity date and the related Liquidation Proceeds are received within three (3) months following the related maturity date as a result of the related Mortgage Loan, Serviced B Note or Serviced Companion Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Liquidation Fee out of the proceeds received in connection with such liquidation if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Mortgagor and retain (x) a liquidation fee, (y) such other fees as are provided for in the related Mortgage Loan documents and (z) other appropriate fees in connection with such liquidation.
“Liquidation Proceeds” means proceeds from the sale or liquidation of a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note or related REO Property, net of Liquidation Expenses. With respect to any Mortgaged Property securing an A/B Whole Loan or Loan Pair, only an allocable portion of such Liquidation Proceeds shall be distributable to the Certificateholders. With respect to the mortgaged property or properties securing any Non-Serviced Loan Combination, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan will be included in Liquidation Proceeds.
“Liquidation Realized Loss” means, with respect to each Mortgage Loan or any REO Property, as the case may be, as to which a Cash Liquidation, or other liquidation or REO Disposition has occurred, an amount equal to the excess, if any, of: (A) the sum, without duplication, of (1) the Unpaid Principal Balance of the Mortgage Loan (or any related REO Mortgage Loan), as the case may be, as of the date of the Cash Liquidation, or other liquidation or REO Disposition, plus (2) unpaid interest and interest accrued thereon at the applicable Mortgage Rate through the Due Date (or, in the case of a Balloon Loan past its Maturity Date or an REO Property, the date that would otherwise be the Due Date) in the Collection Period in which the Cash Liquidation or other liquidation or REO Disposition occurred, plus (3) any expenses (including Additional Trust Expenses, unpaid Servicing Advances and unpaid Advance Interest, but excluding Trust Advisor Expenses) incurred in connection with such Mortgage Loan or REO Property that have been paid or are payable or reimbursable to any Person, other than amounts included in the definition of Liquidation Expenses and amounts previously treated as Expense Losses attributable to principal (and interest thereon), plus (4) any Unliquidated Advances incurred with respect to such Mortgage Loan or REO Property; over (B) the sum of (1) REO Income applied as recoveries of principal or interest on the related Mortgage Loan or REO Property, and (2) Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, Late
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Collections and all other amounts recovered from the related Mortgagor and received during the Collection Period in which such Cash Liquidation, or other liquidation or REO Disposition occurred and which are not required under any Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents) or Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any holder of a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan.
“Loan Pair” means a Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan, collectively. The Loan Pairs related to the Trust as of the Closing Date are the TKG 3 Retail Portfolio Loan Pair, the 32 Old Slip Fee Loan Pair and the Aviare Place Apartments Loan Pair. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan, collectively, shall cease to be a Loan Pair and shall be a Non-Serviced Loan Combination.
“Loan-Specific Directing Holder” means, with respect to any A/B Whole Loan or Loan Pair, any holder of a related Serviced B Note or Serviced Companion Loan, or any designee thereof or participant in a securitization thereof, that constitutes the “Controlling Holder”, “Controlling Note Holder”, the “Directing Holder”, “Directing Lender” or any analogous concept under the related Intercreditor Agreement. The only Loan-Specific Directing Holder related to the Trust as of the Closing Date shall be, with respect to the TKG 3 Retail Portfolio Loan Pair, the TKG 3 Retail Portfolio Directing Holder. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, there shall be no Loan-Specific Directing Holder related to the Trust.
“Loan-Specific Special Servicer” has the meaning set forth in Section 9.30(f).
“Loan-to-Value Ratio” means, as of any date with respect to a Mortgage Loan, the fraction, expressed as a percentage, the numerator of which is the Unpaid Principal Balance of such Mortgage Loan at the date of determination and the denominator of which is the value of the Mortgaged Property as shown on the most recent Appraisal or valuation of the Mortgaged Property which is available as of such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the allocable portion thereof.
“Lock-Box Account” has the meaning set forth in Section 8.3(g).
“Lock-Box Agreement” means, with respect to any Mortgage Loan, any lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a depositary institution and the Master Servicer (or a sub-servicer on its behalf) pursuant to which a Lock-Box Account is created.
“Losses” has the meaning set forth in Section 12.4.
“MAI” means Member of the Appraisal Institute.
“Major Decision” means any of the following:
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(a) any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair that comes into and continues in default;
(b) any modification, consent to a modification or waiver of a Monetary Term (other than Penalty Charges, but including the timing of payments and acceptance of discounted payoffs) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair or any extension of the Maturity Date thereof;
(c) following a default or an event of default with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, any exercise of remedies, including any acceleration thereof or initiation of judicial, bankruptcy or similar proceedings under the related Mortgage Loan documents;
(d) any sale of a Defaulted Loan or REO Property for less than the applicable Purchase Price;
(e) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at a Mortgaged Property or at an REO Property;
(f) any release of collateral or any acceptance of substitute or additional collateral for a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, or any consent to either of the foregoing, unless required or permitted pursuant to the specific terms of the related Mortgage Loan documents and for which there is no material lender discretion;
(g) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair or, if lender consent is required, any consent to such waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor, other than any such transfer or incurrence of debt as may be effected without the consent of the lender under the related Mortgage Loan documents;
(h) with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, any incurrence of additional debt by a Mortgagor or of any mezzanine financing by any beneficial owner of a Mortgagor (to the extent that the lender has consent rights pursuant to the related Mortgage Loan documents (for purposes of the determination whether a lender has such consent rights pursuant to the related Mortgage Loan documents, any Mortgage Loan document provision that requires that an intercreditor agreement be reasonably or otherwise acceptable to the lender will constitute such consent rights));
(i) any material modification, waiver or amendment of an intercreditor agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender or subordinate debt holder related to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, or an action to enforce rights with respect thereto or decision not to enforce such rights;
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(j) any franchise changes (with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair for which the lender is required to consent or approve under the related Mortgage Loan documents), or, with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair with an Unpaid Principal Balance greater than $2,500,000, any material property management company changes, including approval of the termination of a manager and appointment of a new property manager;
(k) with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair, releases of any escrow accounts, reserve accounts or letters of credit held as performance escrows or reserves other than those required pursuant to the specific terms of the related Mortgage Loan documents and for which there is no material lender discretion;
(l) any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in a Mortgagor, guarantor or other obligor, or releasing a Mortgagor, guarantor or other obligor from liability under a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Loan Pair other than pursuant to the specific terms thereof and for which there is no lender discretion;
(m) any determination of an Acceptable Insurance Default;
(n) the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of a Mortgagor; and
(o) the exercise of the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement to the “Note A Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term as may be set forth in any such Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, and/or the “Servicer” referred to therein, if and to the extent such rights or powers affect the priority, payments, consent rights, or security interest with respect to the “Note A Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term.
“Majority Controlling Class Certificateholders” means the Holder(s) of Certificates representing more than 50% of the Aggregate Certificate Balance of the Controlling Class.
“Manager” means, with respect to any Mortgage Loan, any property manager for the related Mortgaged Property.
“Master Servicer” means Wells Fargo Bank, National Association and its permitted successors or assigns.
“Master Servicer Consent Matters” has the meaning set forth in Section 8.3(a).
“Master Servicer Indemnified Parties” has the meaning set forth in Section 8.25(a).
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“Master Servicer Losses” has the meaning set forth in Section 8.25(a).
“Master Servicer Remittance Date” means, for each Distribution Date, the Business Day immediately preceding such Distribution Date.
“Master Servicer Remittance Report” means the CREFC® Loan Periodic Update File.
“Master Servicing Fee” means, with respect to each Mortgage Loan and, if applicable, A/B Whole Loan or Loan Pair (including a Mortgage Loan, A/B Whole Loan or Loan Pair that relates to an REO Property or is a Defeasance Loan), for any related Mortgage Loan Accrual Period, the amount of interest accrued during such related Mortgage Loan Accrual Period at the related Master Servicing Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan or, if applicable, such A/B Whole Loan or Loan Pair, as the case may be, during such related Mortgage Loan Accrual Period, subject to reduction in respect of Compensating Interest, as set forth in Section 5.2(a)(I)(iv). The Master Servicing Fee shall include all amounts required to be paid to any sub-servicer appointed by the Master Servicer.
“Master Servicing Fee Rate” means, with respect to each Mortgage Loan and any related Serviced Companion Loan or Serviced B Note, including any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or is a Defeasance Loan, a rate equal to (i) with respect to each Mortgage Loan (other than the TKG 3 Retail Portfolio Mortgage Loan (after the TKG 3 Retail Portfolio Companion Loan Securitization Date), the Hilton Garden Inn W 54th Street Mortgage Loan and the US StorageMart Portfolio Mortgage Loan), 0.0050% per annum plus the primary servicing fee rate set forth next to such Mortgage Loan on the Mortgage Loan Schedule, (ii) with respect to the TKG 3 Retail Portfolio Companion Loan (prior to the TKG 3 Retail Portfolio Companion Loan Securitization Date), the 32 Old Slip Fee Serviced Companion Loan and the Aviare Place Apartments Serviced Companion Loan, 0.0050% per annum, and (iii) with respect to the TKG 3 Retail Portfolio Mortgage Loan (after the TKG 3 Retail Portfolio Companion Loan Securitization Date), the Hilton Garden Inn W 54th Street Mortgage Loan and the US StorageMart Portfolio Mortgage Loan, 0.0050% per annum.
“Material Breach” has the meaning set forth in Section 2.3(a).
“Material Document Defect” has the meaning set forth in Section 2.3(a).
“Maturity Date” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note as of any date of determination, the date on which the last payment of principal is due and payable thereunder, after taking into account all Principal Prepayments received and any Deficient Valuation, Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced Companion Loan or Serviced B Note occurring prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Serviced Companion Loan or Serviced B Note or (ii) any grace period permitted by such Mortgage Loan, Serviced B Note or Serviced Companion Loan.
“Modification Fee” means a fee, if any, collected from a Mortgagor by the Master Servicer in connection with a written restructuring, modification, waiver, extension or
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amendment of any Mortgage Loan (or A/B Whole Loan or Loan Pair, if applicable, but not any Non-Serviced Mortgage Loan) other than a Specially Serviced Mortgage Loan or collected in connection with a written restructuring, modification, waiver, extension or amendment by the Special Servicer of a Specially Serviced Mortgage Loan, but does not include Assumption Fees, assumption application fees, Consent Fees or defeasance fees. For each written restructuring, modification, extension, waiver or amendment that restructures, modifies, extends, amends or waives any term of the Mortgage Loan, A/B Whole Loan or Loan Pair in connection with working out of a Specially Serviced Mortgage Loan, the Modification Fees collected from the related Mortgagor will be subject to a cap of the lesser of (i) 1.0% of the outstanding principal balance of such Mortgage Loan, A/B Whole Loan or Loan Pair on the closing date of the related modification, restructure, extension, waiver or amendment (prior to giving effect to such modification, restructure, extension, waiver or amendment); provided, that no aggregate cap will exist in connection with the amount of Modification Fees which may be collected from the related Mortgagor with respect to any Specially Serviced Mortgage Loan or REO Loan and (ii) $1,000,000; provided, that no aggregate cap exists in connection with the amount of Modification Fees which may be collected from the related Mortgagor with respect to any Specially Serviced Mortgage Loan or REO Loan.
“Modification Loss” means, with respect to each Mortgage Loan, (i) a decrease in the outstanding principal balance thereof as a result of a modification thereof in accordance with the terms hereof, (ii) any fees and expenses connected with such modification, to the extent (x) reimbursable to the Trustee, the Custodian, the Special Servicer or the Master Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a modification of such Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount of interest that would have accrued at a rate equal to the original Mortgage Rate, over interest that actually accrued on such Mortgage Loan during the preceding Collection Period.
“Money Term” means with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, the Maturity Date, Mortgage Rate, principal balance, amortization term or payment frequency thereof or any provision thereof requiring the payment of a Prepayment Premium in connection with a principal prepayment (and shall not include Late Fees or Default Interest provisions).
“Moody’s” means Moody’s Investors Service, Inc. or its successor in interest. If neither such rating agency nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Morningstar” means Morningstar Credit Ratings, LLC or its successor in interest. If neither such rating agency nor any successor remains in existence, “Morningstar” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
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“Mortgage” means the mortgage, deed of trust or other instrument securing a Mortgage Note.
“Mortgage File” means the mortgage documents listed below:
(i) the original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed) or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost after recordation, the Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with evidence of recording thereon, or if such original modification, consolidation or extension agreements have been delivered to the appropriate recording office for recordation and either have not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or have been lost after recordation, true copies of such modifications, consolidations or extensions certified by the applicable Seller together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (B) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of Wilmington Trust, National Association, as Trustee for Morgan Stanley Bank of America Merrill
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Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23” (or, in the case of an A/B Whole Loan or a Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan));
(v) originals of all intervening assignments of Mortgage, if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by the applicable Seller, or in the case of an original blanket intervening assignment of Mortgage retained by the applicable Seller, a copy thereof certified by the applicable Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by the applicable Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (A) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by the applicable Seller to be a true and complete copy of the original assignment submitted for recording, and (B) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of Wilmington Trust, National Association, as Trustee for Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23” (or, in the case of an A/B Whole Loan or a Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
(vii) the original or a copy of each guaranty, if any, constituting additional security for the repayment of such Mortgage Loan;
(viii) the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy or if such Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date or a preliminary title report
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binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), Space Lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing any related Serviced Companion Loan, Non-Serviced Companion Loan and B Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement (it being understood that each Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee)) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of the Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer shall assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity agreement, if any, related to any Mortgage Loan;
(xiv) third-party management agreements, if any, with respect to any Mortgaged Property;
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(xv) copies of any Environmental Insurance Policy;
(xvi) copies of any affidavit and indemnification agreement;
(xvii) if the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to the applicable Seller in connection with such Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the applicable Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
(xviii) with respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, (A) the preceding document delivery requirements shall be met by the delivery by the Depositor of copies of the documents specified above (other than the Mortgage Notes (and all intervening endorsements) respectively evidencing such Non-Serviced Mortgage Loan with respect to which the originals shall be required), including a copy of the Non-Serviced Mortgage Loan Mortgage, and (B) the requirement to deliver any of the preceding documents in the name of the Trustee shall be met by the delivery of such documents in the name of the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan.
Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File by either of the applicable Sellers shall satisfy the delivery requirements for both of the applicable Sellers.
“Mortgage Loan” means a Mortgage Note secured by a Mortgage, and all amendments and modifications thereof, identified on the Mortgage Loan Schedule, as amended from time to time, provided that the term “Mortgage Loan” shall include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not include any Non-Serviced Companion Loan and shall not include, in the case of the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination and the US StorageMart Portfolio Non-Serviced Loan Combination, any related B Note) and with respect to (i) any A/B Whole Loan, shall include the A Note (but shall not include the related Serviced B Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage Loan (but shall not include the related Serviced Companion Loan). For the avoidance of doubt, no BANA Lender Successor Borrower Right, CIBC Lender Successor Borrower Right, SMF III Lender Successor Borrower Right or MSMCH Seller Defeasance Rights and Obligations is part of a “Mortgage Loan”.
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“Mortgage Loan Accrual Period” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note (including any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property), the period that commences on any related Due Date (or, in the case of any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or as to which the Maturity Date has passed, the date that would otherwise have been a related Due Date) and that continues to, but not including the next succeeding related Due Date (or, in the case of any Mortgage Loan, Serviced Companion Loan or Serviced B Note that relates to an REO Property or as to which the Maturity Date has passed, the date next succeeding that would otherwise have been a related Due Date).
“Mortgage Loan Purchase Agreement” means Mortgage Loan Purchase Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase Agreement III or Mortgage Loan Purchase Agreement IV, as the case may be.
“Mortgage Loan Purchase Agreement I” means that certain Mortgage Loan Purchase Agreement between BANA and the Depositor dated the Pricing Date with respect to the BANA Loans.
“Mortgage Loan Purchase Agreement II” means that certain Mortgage Loan Purchase Agreement between MSMCH and the Depositor dated the Pricing Date with respect to the MSMCH Loans.
“Mortgage Loan Purchase Agreement III” means that certain Mortgage Loan Purchase Agreement between CIBC and the Depositor dated the Pricing Date with respect to the CIBC Loans.
“Mortgage Loan Purchase Agreement IV” means that certain Mortgage Loan Purchase Agreement between SMF III, Starwood Mortgage Capital LLC and the Depositor dated the Pricing Date with respect to the SMF III Loans.
“Mortgage Loan Schedule” or “Loan Schedule” means collectively the schedule attached hereto as Schedule I, which identifies each BANA Loan, the schedule attached hereto as Schedule II, which identifies each MSMCH Loan, the schedule attached hereto as Schedule III, which identifies each CIBC Loan, and the schedule attached hereto as Schedule IV, which identifies each SMF III Loan, as such schedules may be amended from time to time pursuant to Section 2.3.
“Mortgage Note” means the note or other evidence of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage Rate” means, for a given Mortgage Loan, Serviced Companion Loan or Serviced B Note, the per annum rate at which interest accrues on such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as the case may be, without regard to any increase in such rate after the related Anticipated Repayment Date in the case of an ARD Loan, and without regard to any increase in such rate as a result of a default under such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as the case may be.
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“Mortgaged Property” means the real property, together with improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan and, in the case of an A/B Whole Loan, the related Serviced B Note and, in the case of a Loan Pair, the related Serviced Companion Loan and the related Serviced B Note (if any) and, in the case of a Non-Serviced Loan Combination, the related Non-Serviced Companion Loan (and, with respect to the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination and the US StorageMart Non-Serviced Loan Combination, each related B Note).
“Mortgagee” means, with respect to any Mortgage as of any date of determination, the mortgagee named therein as of such date.
“Mortgagor” means the obligor on a Mortgage Note.
“MSBAM 2015-C22 Pooling and Servicing Agreement” means the Pooling and Servicing Agreement, dated as of April 1, 2015, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as special servicer, Park Bridge Lender Services LLC, as trust advisor, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian.
“MSMCH” has the meaning set forth in the Preliminary Statement hereto.
“MSMCH Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on Schedule II hereto (or, with respect to any Joint Mortgage Loan, MSMCH’s pro rata share of such Joint Mortgage Loans based on MSMCH’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“MSMCH Seller Defeasance Rights and Obligations” has the meaning set forth in Section 8.3(h) hereof.
“Net Aggregate Prepayment Interest Shortfall” means, for any Distribution Date, the excess, if any, of the aggregate of all Prepayment Interest Shortfalls, if any, incurred during the related Collection Period with respect to all Mortgage Loans that are not Specially Serviced Mortgage Loans, over the sum of (A) the Compensating Interest to be paid by the Master Servicer on such Distribution Date with respect thereto and (B) the aggregate of all Prepayment Interest Excesses collected thereon during the related Collection Period.
“Net Mortgage Rate” means, with respect to any Mortgage Loan (including a successor REO Mortgage Loan), as of any date of determination, a per annum rate equal to the Mortgage Rate of such Mortgage Loan, minus the related Administrative Cost Rate.
“New Lease” means any lease of any REO Property entered into on behalf of the Trust, including any lease renewed or extended on behalf of the Trust if the Trust has the right to renegotiate the terms of such lease.
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“Non-Directing Holder” means, with respect to any A/B Whole Loan or Loan Pair, the “Non-Directing Holder”, “Non-Controlling Note Holder” or any analogous concept under the related Intercreditor Agreement. The only Non-Directing Holders related to the Trust as of the Closing Date are the “Non-Controlling Note Holder” under each of the 32 Old Slip Fee Intercreditor Agreement and the Aviare Place Apartments Intercreditor Agreement.
“Nondisqualification Opinion” means a written Opinion of Counsel to the effect that a contemplated action (i) will neither cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding nor cause a “prohibited transaction,” “prohibited contribution” or any other tax (other than a tax on “net income from foreclosure property” permitted to be incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and (ii) will not cause the Grantor Trust to fail to qualify as a grantor trust.
“Non-Investment Grade Certificates” means each Class of Certificates that, at the time of transfer, is not rated in one of the four (4) highest generic rating categories by at least one NRSRO approved as a “Rating Agency” under the Exemption.
“Non-Public Information” means any information in respect of the Trust, the Certificates, the Mortgage Loans or the Trust, in each case prepared and/or made available by any party to this Agreement, other than the Final Prospectus, the Distribution Date Statements, this Agreement and the Exchange Act Reports.
“Nonrecoverable Advance” means any of the following: (i) any Pari Passu Loan Nonrecoverable Advance (including interest accrued thereon at the Advance Rate) and (ii) the portion of any Advance (including interest accrued thereon at the Advance Rate) or Unliquidated Advance (not including interest thereon) previously made (and, in the case of an Unliquidated Advance, not previously reimbursed to the Trust) or proposed to be made by the Master Servicer, the Special Servicer or the Trustee, that, in its respective sole discretion, exercised in good faith and, with respect to the Master Servicer and the Special Servicer, taking into account the Servicing Standard, will not be or, in the case of a current delinquency, would not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds (or from any other collections) with respect to the related Mortgage Loan or Serviced Companion Loan (and taking into consideration any Crossed Mortgage Loans) (in the case of Servicing Advances) or Serviced B Note (in the case of Servicing Advances) or REO Property (in the case of P&I Advances and Servicing Advances), as evidenced by an Officer’s Certificate delivered pursuant to Section 4.4.
“Non-Registered Certificate” means unless and until registered under the Securities Act, any Class X-B, Class X-FG, Class X-H, Class D, Class E, Class F, Class G, Class H, Class V or Class R Certificate.
“Non-Serviced Companion Loan” means a loan not included in the Trust that is generally payable on a pari passu basis with the related Non-Serviced Mortgage Loan. The Non-Serviced Companion Loans related to the Trust as of the Closing Date are the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan and the US StorageMart Portfolio Non-Serviced Companion Loan. On and after the TKG 3 Retail Portfolio Companion Loan
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Securitization Date, the TKG 3 Retail Portfolio Companion Loan shall be a Non-Serviced Companion Loan.
“Non-Serviced Loan Combination” means a Non-Serviced Mortgage Loan and the related Non-Serviced Companion Loan (and, in the case of the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination and the US StorageMart Portfolio Non-Serviced Loan Combination, each related B Note), collectively. The Non-Serviced Loan Combinations related to the Trust as of the Closing Date are the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination and the US StorageMart Portfolio Non-Serviced Loan Combination. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan, collectively, shall be a Non-Serviced Loan Combination.
“Non-Serviced Mortgage Loan” means a Mortgage Loan included in the Trust but serviced under another agreement. The Non-Serviced Mortgage Loans included in the Trust as of the Closing Date are the Hilton Garden Inn W 54th Street Mortgage Loan and the US StorageMart Portfolio Mortgage Loan. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan shall be a Non-Serviced Mortgage Loan.
“Non-Serviced Mortgage Loan Certificate Administrator” means, with respect to any Non-Serviced Loan Combination, the applicable “certificate administrator” or “paying agent” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Custodian” means, with respect to any Non-Serviced Loan Combination, the applicable “custodian” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Fiscal Agent” means, with respect to any Non-Serviced Loan Combination, the applicable “fiscal agent,” if any, under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Intercreditor Agreement” means the applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
“Non-Serviced Mortgage Loan Master Servicer” means, with respect to any Non-Serviced Loan Combination, the applicable “master servicer” or “servicer” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Mortgage” means the mortgage securing a Non-Serviced Mortgage Loan and the related Non-Serviced Companion Loan (and, in the case of the Hilton Garden Inn W 54th Street Non-Serviced Combination and the US StorageMart Portfolio Non-Serviced Loan Combination, each related B Note).
“Non-Serviced Mortgage Loan Pooling and Servicing Agreement” means a pooling and servicing agreement or trust and servicing agreement, as applicable, under which a Non-Serviced Mortgage Loan is serviced. The only Non-Serviced Mortgage Loan Pooling and Servicing Agreements related to the Trust as of the Closing Date are (i) the MSBAM 2015-C22
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Pooling and Servicing Agreement, pursuant to which the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination is serviced, and (ii) the CGBAM 2015-SMRT Trust and Servicing Agreement, pursuant to which the US StorageMart Portfolio Non-Serviced Loan Combination is serviced. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the pooling and servicing agreement entered into in connection with the securitization of the TKG 3 Retail Portfolio Companion Loan shall be a Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Special Servicer” means, with respect to any Non-Serviced Loan Combination, the applicable “special servicer” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Serviced Mortgage Loan Trustee” means, with respect to any Non-Serviced Loan Combination, the applicable “trustee” under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
“Non-Specially Serviced Mortgage Loan” means, as of any date of determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note that is not a Specially Serviced Mortgage Loan.
“Notional Amount” means, as of any date of determination: (i) with respect to any Class X REMIC III Regular Interest, the REMIC II Principal Amount of the Corresponding REMIC II Regular Interest as of such date of determination; (ii) with respect to any Class of Class X Certificates, the aggregate of the Notional Amounts of the related Class X REMIC III Regular Interests as of such date of determination; and (iii) with respect to any Class X Certificate, the product of the Percentage Interest evidenced by such Certificate, multiplied by the Notional Amount of the applicable Class of Class X Certificates as of such date of determination.
“NRSRO” means any nationally recognized statistical ratings organization under the Exchange Act, including the Rating Agencies; provided that, when referred to in connection with the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website, “NRSRO” shall mean a nationally recognized statistical rating organization that has delivered an NRSRO Certification.
“NRSRO Certification” means a certification (which may be submitted electronically by means of a “click-through” confirmation via the 17g-5 Information Provider’s Website) substantially in the form of Exhibit J executed by a NRSRO in favor of the 17g-5 Information Provider.
“Officer’s Certificate” means (i) in the case of the Depositor, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, or any Senior Vice President, Vice President or Assistant Vice President, and by one or more of the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Depositor, (ii) in the case of the Master Servicer and the Special Servicer, any of the officers referred to above or an employee thereof designated as a Servicing Officer or Special Servicing Officer pursuant to this Agreement, (iii) in the case of the Trustee, a certificate signed by a Responsible Officer, (iv) in
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the case of a Seller, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, any Managing Director or Director, the President, or any Executive Vice President, any Senior Vice President, Vice President, Second Vice President or Assistant Vice President, (v) in the case of the Certificate Administrator or the Custodian, a certificate signed by a Responsible Officer, each with specific responsibilities for the matters contemplated by this Agreement; and (vi) in the case of any other Additional Servicer, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, or any Senior Vice President, Vice President or Assistant Vice President or an employee thereof designated as a Servicing Officer.
“Opinion of Counsel” means a written opinion of counsel addressed to the Trustee and the Certificate Administrator, reasonably acceptable in form and substance to the Trustee and the Certificate Administrator, and who is not in-house counsel to the party required to deliver such opinion but who, in the good faith judgment of the Trustee and the Certificate Administrator, is Independent outside counsel knowledgeable of the issues occurring in the practice of securitization with respect to any such opinion of counsel concerning the taxation, or status as a REMIC for tax purposes, of any REMIC Pool or status as a “grantor trust” under the Code of the Grantor Trust.
“Other Advance Report Date” means with respect to a Non-Serviced Companion Loan (and, in the case of the US StorageMart Portfolio Non-Serviced Loan Combination, the US StorageMart Portfolio B Note) or a Serviced Companion Loan, as applicable, which has been deposited into a commercial mortgage securitization trust, the date under the related Other Companion Loan Pooling and Servicing Agreement that the related Other Master Servicer is required (pursuant to the terms thereof) to make a determination as to whether it will make a P&I Advance as required under such Other Companion Loan Pooling and Servicing Agreement.
“Other Certificate Administrator” means the applicable other “certificate administrator” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Companion Loan Pooling and Servicing Agreement” means a pooling and servicing agreement or trust and servicing agreement, as applicable, relating to a Non-Serviced Companion Loan or a Serviced Companion Loan that creates a commercial mortgage securitization trust, as applicable. The Other Companion Loan Pooling and Servicing Agreements related to the Trust as of the Closing Date are the MSBAM 2015-C22 Pooling and Servicing Agreement and the CGBAM 2015-SMRT Trust and Servicing Agreement. Any pooling and servicing agreement entered into in connection with the securitization of any portion of the 32 Old Slip Fee Serviced Companion Loan, the Aviare Place Apartments Serviced Companion Loan or the TKG 3 Retail Portfolio Companion Loan shall be an Other Companion Loan Pooling and Servicing Agreement.
“Other Controlling Class Representative” means the applicable other “controlling class representative” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
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“Other Custodian” means the applicable other “custodian” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Depositor” means the applicable other “depositor” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Indemnified Parties” has the meaning set forth in Section 1.6(j).
“Other Master Servicer” means the applicable other “master servicer” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other NRSRO” means a NRSRO that is not a Rating Agency.
“Other Securitization” means any commercial mortgage securitization trust that holds a Serviced Companion Loan or Non-Serviced Companion Loan or any successor REO Loan with respect thereto.
“Other Special Servicer” means the applicable other “special servicer” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Transaction Party” means any party to an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Trust Advisor” means the applicable other “trust advisor” or “operating advisor”, if any, under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Other Trustee” means the applicable other “trustee” under an Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced Companion Loan or a Serviced Companion Loan, as applicable.
“Ownership Interest” means, as to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.
“P&I Advance” means (other than with respect to a Serviced Companion Loan or a Serviced B Note) for any Distribution Date, subject to Section 4.1(d) of this Agreement: (i) with respect to any Mortgage Loan or Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled Payment (other than a Balloon Payment) due during the related Collection Period was not received by the Master Servicer as of the related Determination Date, the portion of such Scheduled Payment not received; (ii) with respect to any Mortgage Loan that is a Balloon Loan (excluding any REO Property as to which the related Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was due during or prior to the related
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Collection Period but was delinquent, in whole or in part, as of the related Determination Date, an amount equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon Loan for the related Collection Period, over any Late Collections or other amounts received in respect of such Balloon Payment during such Collection Period that are included in the Available Distribution Amount for such Distribution Date; and (iii) with respect to each REO Mortgage Loan, an amount equal to the excess, if any, of the Assumed Scheduled Payment thereof during the related Collection Period, over any remittances of REO Income to the Master Servicer by the Special Servicer that are included in the Available Distribution Amount for such Distribution Date; provided that the interest portion of any Scheduled Payment or Assumed Scheduled Payment shall be advanced at a per annum rate equal to the sum of the Net Mortgage Rate relating to such Mortgage Loan or such REO Mortgage Loan, the Certificate Administrator Fee Rate, the Trust Advisor Fee Rate and the CREFC® License Fee Rate, such that the Scheduled Payment or Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the Master Servicing Fee; provided, further, that the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which has been modified shall be calculated based on its terms as modified; provided, further, that the interest component of any P&I Advance with respect to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an amount equal to the product of (i) the amount of interest required to be advanced without giving effect to this proviso and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan immediately prior to the subject Distribution Date less any Appraisal Reduction applicable to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan or a Serviced Pari Passu Mortgage Loan, the portion of such Appraisal Reduction allocable (based upon their respective Unpaid Principal Balances) to such Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan under the related Intercreditor Agreement or related Non-Serviced Mortgage Loan Pooling and Servicing Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, Section 8.30 hereof), or in the case of an A/B Whole Loan, the portion of such Appraisal Reduction allocable to the A Note pursuant to the definition of “Appraisal Reduction”), and the denominator of which is the Stated Principal Balance of such Mortgage Loan immediately prior to the subject Distribution Date. All P&I Advances for any Mortgage Loans that have been modified shall be calculated on the basis of their terms as modified.
“P&I Advance Amount” means, with respect to any Mortgage Loan or any REO Mortgage Loan, the amount of the P&I Advance with respect thereto computed for any Distribution Date.
“Pari Passu Loan Nonrecoverable Advance” means any “Nonrecoverable Servicing Advance” (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan pursuant to and in accordance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement; provided that if the applicable Non-Serviced Mortgage Loan Master Servicer shall have made a “Servicing Advance” (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the nature of an expenditure benefiting the related Mortgaged Property generally, the portion thereof attributable to any Non-Serviced Mortgage Loan (after taking into account the amount attributable to any related B Note in accordance with the terms of the related Intercreditor Agreement) shall be determined based on the outstanding balances of such Non-Serviced Mortgage Loan and all the related pari passu loans secured by
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such Non-Serviced Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
“Pari Passu Loan Primary Servicing Fee Rate” means the “Master Servicing Fee Rate” (or analogous term) (as defined in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) and any other servicing fee rate (other than those payable to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any Non-Serviced Mortgage Loan. For the avoidance of doubt, (i) the Pari Passu Loan Primary Servicing Fee Rate for the Hilton Garden Inn W 54th Street Mortgage Loan shall be 0.0050% per annum, (ii) the Pari Passu Loan Primary Servicing Fee for the US StorageMart Portfolio Mortgage Loan shall be 0.0025% per annum and (iii) the Pari Passu Loan Primary Servicing Fee Rate for the TKG 3 Retail Portfolio Mortgage Loan (on and after the TKG 3 Retail Portfolio Companion Loan Securitization Date) shall be a rate set forth in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement entered into in connection with the securitization of the TKG 3 Retail Portfolio Companion Loan, not to exceed 0.0050% per annum.
“Participant” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Pass-Through Rate” or “Pass-Through Rates” means: (a) with respect to any REMIC I Regular Interest for any Distribution Date, the related REMIC I Net Mortgage Rate for such Distribution Date; (b) with respect to any REMIC II Regular Interest for any Distribution Date, the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date; (c) with respect to any Class X REMIC III Regular Interest for any Distribution Date, the Class X Strip Rate with respect to the Corresponding REMIC II Regular Interest for such Distribution Date; (d) with respect to any Class of Class X Certificates for any Distribution Date, (i) the weighted average of the Pass-Through Rates with respect to the related Class X REMIC III Regular Interests for such Distribution Date, weighted on the basis of the respective Notional Amounts of such Class X REMIC III Regular Interests immediately prior to such Distribution Date or (ii) if there is only one related Class X REMIC III Regular Interest, the Pass-Through Rate with respect to the related Class X REMIC III Regular Interest for such Distribution Date, as applicable; (e) with respect to the Class A-1 Certificates for any Distribution Date, 1.685% per annum; (f) with respect to the Class A-2 Certificates for any Distribution Date, 2.982% per annum; (g) with respect to the Class A-SB Certificates for any Distribution Date, 3.398% per annum; (h) with respect to the Class A-3 Certificates, 3.451% per annum; (i) with respect to the Class A-4 Certificates for any Distribution Date, 3.719% per annum; (j) with respect to the Class A-S Certificates, the Class A-S REMIC III Regular Interest and the Class PST Component A-S for any Distribution Date, the lesser of the Weighted Average REMIC I Net Mortgage Rate and 4.004% per annum; (k) with respect to the Class B Certificates, the Class B REMIC III Regular Interest and the Class PST Component B for any Distribution Date, the Weighted Average REMIC I Net Mortgage Rate; (l) with respect to the Class C Certificates, the Class C REMIC III Regular Interest, the Class PST Component C, the Class D Certificates and the Class E Certificates for any Distribution Date, the Weighted Average REMIC I Net Mortgage Rate; and (m) with respect to each Class of the Class F, Class G and Class H Certificates for any Distribution Date, 3.000% per annum.
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“PCAOB” means the Public Company Accounting Oversight Board.
“Penalty Charges” means, with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair (including any related REO Property), any amounts actually collected thereon that represent Default Interest and/or Late Fees but excluding any amounts allocable to a Non-Serviced Mortgage Loan and its related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement.
“Percentage Interest” means: (a) with respect to each Certificate other than a Class V or Class R Certificate, the fraction of the relevant Class evidenced by such Certificate, expressed as a percentage (carried to four (4) decimal places and rounded, if necessary), the numerator of which is the Certificate Balance or Notional Amount, as applicable, represented by such Certificate as of the Closing Date as stated on the face of such Certificate (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) and the denominator of which is the Aggregate Certificate Balance or Notional Amount, as applicable, of all of the Certificates of the relevant Class as of the Closing Date as stated on the face of such Certificate (subject, in the case of an Exchangeable Certificate, to any increase or decrease in such Aggregate Certificate Balance of the relevant Class as a result of exchanges); provided, that if at any time the Aggregate Certificate Balance or Notional Amount of such Class equals zero, the “Percentage Interest” with respect to each Certificate of such Class shall equal zero; and (b) with respect to each Class V and Class R Certificate, the percentage interest in distributions (if any) to be made with respect to the relevant Class, as stated on the face of such Certificate.
“Performing Party” has the meaning set forth in Section 13.12.
“Permitted Special Servicer/Affiliate Fees” means any commercially reasonable treasury management fees, banking fees, customary title agent fees and insurance commissions or fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed hereunder by such party with respect to any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property.
“Permitted Transferee” means any Transferee other than: (a) a Disqualified Organization; (b) any other Person identified in an Opinion of Counsel delivered to the Certificate Administrator and the Trustee to the effect that the transfer of an ownership interest in any Class R Certificate to such Person may cause any REMIC Pool to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a non-United States Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a non-United States Tax Person or (e) a United States Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other United States Tax Person.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
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“Phase I Environmental Report” means a report by an Independent Person who regularly conducts environmental site assessments in accordance with then current standards imposed by institutional commercial mortgage lenders and who has a reasonable amount of experience conducting such assessments.
“Plan” has the meaning set forth in Section 3.3(d).
“Plan Asset Regulations” means the Department of Labor regulations set forth in 29 C.F.R. § 2510.3-101.
“Planned Principal Balance” means for any Distribution Date, the balance shown for such Distribution Date on Schedule XVII.
“Preliminary Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Prepayment Interest Excess” means, with respect to any Mortgage Loan as to which a full or partial Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation thereof) is made during that portion of any Collection Period after the related Due Date through and including the last day of the Collection Period, the amount of interest that accrues on the amount of such Principal Prepayment from such Due Date to the date such payment was made, plus (if made) any payment by the Mortgagor of interest that would have accrued to the next succeeding Due Date (net of the Master Servicing Fee, the Special Servicing Fee, the Trust Advisor Fee, the Certificate Administrator Fee, the CREFC® License Fee and any servicing fee, certificate administrator fee, trust advisor fee or trustee fee payable in connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan)), to the extent collected.
“Prepayment Interest Shortfall” means, with respect to any Mortgage Loan as to which a full or partial Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation thereof) is made during that portion of any Collection Period prior to the related Due Date in such Collection Period, an amount equal to the excess of (A) the aggregate amount of interest which would have accrued on the Stated Principal Balance of such Mortgage Loan if the Scheduled Payment had been paid on the related Due Date and such Principal Prepayment or Balloon Payment had not been made (net of the Master Servicing Fee, the Special Servicing Fee, the Trust Advisor Fee, the Certificate Administrator Fee, the CREFC® License Fee and any servicing fee, certificate administrator fee, trust advisor fee or trustee fee payable in connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan)) over (B) the aggregate interest that did so accrue through the date such payment was made (net of such fees).
“Prepayment Premium” means, with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note for any Distribution Date, the prepayment premiums, yield maintenance charges or percentage premiums, if any, received during the related Collection Period in connection with Principal Prepayments on such Mortgage Loan, Serviced Companion Loan or Serviced B Note.
“Pricing Date” means June 5, 2015.
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“Primary Collateral” means the portion of the Mortgaged Property securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is encumbered by a first mortgage lien.
“Principal Balance Certificates” means, collectively, the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class A-S, Class B, Class PST, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
“Principal Distribution Amount” means on any Distribution Date, the amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other than the principal portion of Balloon Payments) and any Assumed Scheduled Payments, in each case, to the extent received or advanced, as the case may be, in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) for their respective Due Dates occurring during the related Collection Period; plus
(ii) (x) all payments (including Principal Prepayments and the principal portion of Balloon Payments but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) and any other collections (including Liquidation Proceeds (other than the portion thereof, if any, constituting Excess Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received (including, in the case of any Non-Serviced Mortgage Loan, by the related Non-Serviced Mortgage Loan Master Servicer or Non-Serviced Mortgage Loan Special Servicer) on or in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) during the related Collection Period that were identified and applied by the Master Servicer or the Special Servicer as recoveries of principal thereof in accordance with this Agreement (exclusive of any portion thereof included as part of the Principal Distribution Amount for the immediately preceding Distribution Date pursuant to clause (I)(A)(ii)(y) of this definition) and (y) the principal portion of any Balloon Payments received on or in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any Serviced Companion Loan or Serviced B Note or any successor REO Serviced Companion Loan or REO Serviced B Note) during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer Remittance Date and remitted by the Master Servicer to the Distribution Account pursuant to Section 5.2(c) that were
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identified and applied by the Master Servicer or the Special Servicer as recoveries of principal thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in respect of the Mortgage Loans and any REO Mortgage Loans during the related Collection Period that, in each case, represents a delinquent amount as to which an Advance had been made, which Advance (or interest thereon) was previously reimbursed during the Collection Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement Amount for which a deduction was made under clause (II)(A) below with respect to a prior Distribution Date;
(C) the aggregate amount of any collections received on or in respect of the Mortgage Loans and any REO Mortgage Loans during the related Collection Period that, in each case, represents a recovery of an amount previously determined (in a Collection Period for a prior Distribution Date) to have been a Nonrecoverable Advance (or interest thereon) and for which a deduction was made under clause (II)(B) below with respect to a prior Distribution Date; and
(D) any Actual Recoveries of amounts previously paid as Excess Trust Advisor Expenses to the extent such amounts had been allocated as a reduction of the Principal Distribution Amount on any prior Distribution Dates; over
(II) the sum of:
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee from amounts in the Collection Account allocable to principal received or advanced with respect to the Mortgage Loans and any REO Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II);
(B) the aggregate amount of Nonrecoverable Advances (and Advance Interest thereon) previously made in respect of any Mortgage Loan or REO Mortgage Loan that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee during the related Collection Period from amounts in the Collection Account allocable to principal received or advanced with respect to the Mortgage Loans and any REO Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II); and
(C) the amount of any Excess Trust Advisor Expenses allocated to reduce the Aggregate Certificate Balance of the Principal Balance Certificates (other than the Exchangeable Certificates and the Control Eligible Certificates) or the Certificate Balance(s) of the related EC REMIC III Regular Interest(s), as applicable, for such Distribution Date pursuant to Section 6.11.
“Principal Prepayment” means any voluntary or involuntary payment or collection of principal on a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note which is received or recovered in advance of its scheduled Due Date and applied to reduce the Unpaid Principal Balance of the Mortgage Loan, Serviced Companion Loan or Serviced B Note in advance of its scheduled Due Date, including, without limitation, all proceeds, to the extent allocable to principal, received from the payment of cash in connection with a substitution
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shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to be a Principal Prepayment.
“Private Placement Memorandum” has the meaning set forth in the Preliminary Statement hereto.
“Privileged Information” means any (i) correspondence or other communications between the Controlling Class Representative or a Loan-Specific Directing Holder, on the one hand, and the Special Servicer, the Master Servicer, the Certificate Administrator, the Custodian or the Trustee, on the other hand, related to any Specially Serviced Mortgage Loan or the exercise of the consent or consultation rights of the Controlling Class Representative or a Loan-Specific Directing Holder under this Agreement, (ii) correspondence or other communications between the Controlling Class Representative and a Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer or other party related to the exercise of any consultation rights with respect to a Non-Serviced Mortgage Loan, (iii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, and (iv) legally privileged information; provided that the summary of any Final Asset Status Report prepared pursuant to Section 10.5(a) is deemed not to be Privileged Information (although no such summary shall be made available to any Mortgagor, Manager, Affiliate of a Mortgagor or Manager or agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing that relates to the Mortgage Loan as to which the applicable Final Asset Status Report relates).
“Privileged Person” means the Depositor, the Underwriters, the Initial Purchasers, any Seller, the Master Servicer, the Special Servicer, the Rating Agencies, the Controlling Class Representative (during any Collective Consultation Period and any Subordinate Control Period), any Loan-Specific Directing Holder (if and for so long as it is the Loan-Specific Directing Holder with respect to the related A/B Whole Loan or Loan Pair, as the case may be), the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor, a designee of the Depositor and any Person who provides the Certificate Administrator with an Investor Certification or NRSRO Certification, as applicable, which Investor Certification or NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided that in no event shall a Mortgagor, a Manager, an Affiliate of a Mortgagor or Manager or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing be considered a Privileged Person. The holder of any Serviced Companion Loan, B Note or Non-Serviced Companion Loan (in each case, including any trustee, master servicer, special servicer, controlling class representative, certificate administrator or custodian with respect to any securitization thereof) shall also be a Privileged Person to the extent any such party provides the Certificate Administrator a certification substantially in the form of Exhibit T hereto. Notwithstanding any of the foregoing to the contrary, if the Special Servicer is an Affiliate of a Mortgagor, it shall nevertheless be a Privileged Person and have access to the Master Servicer’s and/or Certificate Administrator’s website; provided, that for so long as LNR Partners, LLC is acting as Special Servicer, LNR Partners, LLC agrees that it (and its Affiliates) shall not access, and is not permitted to access, Asset Status Reports, the CREFC® Special Servicer Loan File or
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any other reports, in each case, specific to the Excluded Mortgage Loans; provided, further, that the foregoing shall not be construed as an obligation of the Master Servicer or the Certificate Administrator to restrict LNR Partners, LLC’s access to any information on the Master Servicer’s or the Certificate Administrator’s website and in no case shall the Master Servicer or the Certificate Administrator be held liable if LNR Partners, LLC accesses Asset Status Reports or any other information relating to Excluded Mortgage Loans. For the sake of clarity and the avoidance of doubt, LNR Partners, LLC shall not be prohibited from accessing reports that in the aggregate also includes information regarding the Excluded Mortgage Loans.
“Prohibited Party” means (i) a Person that is a proposed Servicing Function Participant that the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee, the Custodian, the Trust Advisor or any primary servicer, as applicable, seeks to retain as a Servicing Function Participant and that the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee, the Custodian, the Trust Advisor or any primary servicer, as applicable, has actual knowledge (obtained by written notice or through actual experience) has failed to comply (after any applicable cure period) with its Exchange Act or Regulation AB compliance obligations with respect to the Trust on any prior date or any other securitization transaction or (ii) any Person identified in writing (delivered prior to the date of retention) by the Depositor to the Master Servicer, the Certificate Administrator, the Special Servicer, the Trustee, the Custodian, the Trust Advisor or any primary servicer, as applicable, as a Person that the Depositor has knowledge has failed on any prior date to comply (after any applicable cure period) with its Exchange Act or Regulation AB obligations with respect to the Trust or any other securitization transaction.
“Prospectus” has the meaning set forth in the Preliminary Statement hereto.
“Prospectus Supplement” has the meaning set forth in the Preliminary Statement hereto.
“PTCE” has the meaning set forth in Section 3.3(d).
“Purchase Price” means, with respect to the purchase by the Seller (or its related Seller Guarantor) or liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.17 under the circumstances set forth therein, a price equal to the sum (without duplication) of (A) 100% of the Unpaid Principal Balance of such Mortgage Loan or REO Mortgage Loan, plus (B) accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not including, the Due Date in the Collection Period in which such purchase or liquidation occurs, plus (C) the amount of any expenses related to such Mortgage Loan and any related Serviced Companion Loan, Serviced B Note or REO Property (including any Servicing Advances and any Advance Interest (which have not been paid by the Mortgagor on the related Mortgage Loan and any related Serviced Companion Loan or Serviced B Note) related to such Mortgage Loan and any related Serviced Companion Loan or Serviced B Note, the amount of any Servicing Advances (and Advance Interest thereon) that were reimbursed from collections on the other Mortgage Loans pursuant to Section 5.2(a)(II)(iii) and not subsequently recovered from the related Mortgagor, and all Special Servicing Fees and Liquidation Fees paid or payable with respect to the Mortgage Loan and any related Serviced
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Companion Loan or Serviced B Note) that are reimbursable or payable to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan Special Servicer, any Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Certificate Administrator, plus (D) if such Mortgage Loan or REO Mortgage Loan is being repurchased or substituted for by a Seller (or its related Seller Guarantor) pursuant to the related Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Trustee or the Custodian in respect of the Material Breach or Material Document Defect giving rise to the repurchase or substitution obligation (and that are not otherwise included in clause (C) above) and any Liquidation Fee payable in connection with any such repurchase. With respect to a Joint Mortgage Loan, the Purchase Price for each of the applicable Sellers shall be its respective percentage interest as of the Closing Date of the total Purchase Price for such Joint Mortgage Loan.
“Purchase Proceeds” means any cash amounts received by the Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO Mortgage Loan by a Seller (or its related Seller Guarantor) pursuant to Section 2.3, (ii) the purchase of the Mortgage Loans and REO Properties by the Holders of the Controlling Class, the Special Servicer, the Master Servicer, the Holders of the Class R Certificates or any other applicable Person pursuant to Section 11.1(b), (iii) the purchase of an A Note by a holder of the related Serviced B Note in accordance with the terms of the related Intercreditor Agreement or (iv) the purchase of a Mortgage Loan by a holder of a mezzanine loan under the related mezzanine intercreditor agreement.
“Qualified Bidder” means as used in Section 8.29(c), a Person qualified to act as successor Master Servicer hereunder pursuant to Section 8.22(b).
“Qualified Institutional Buyer” means a qualified institutional buyer qualifying pursuant to Rule 144A.
“Qualified Insurer” means, (i) with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, an insurance company duly qualified as such under the laws of the state in which the related Mortgaged Property is located, duly authorized and licensed in such state to transact the applicable insurance business and to write the insurance but rated (a) no lower than “A(low)” by DBRS (or, if not so rated by DBRS, then either (x) an equivalent (or higher) rating (such as that listed below for Moody’s) by at least two NRSROs (which may include S&P, Fitch and/or Moody’s) or (y) DBRS has issued a Rating Agency Confirmation with respect to such insurance company), (b) no lower than “A3” by Moody’s (or, if not so rated by Moody’s, then either (x) an equivalent or higher rating by at least two NRSROs (which may include S&P and/or Fitch) or one NRSRO (which may include S&P and/or Fitch) and A.M. Best or (y) Moody’s has issued a Rating Agency Confirmation with respect to such insurance company) and (c) no lower than “A” by Fitch (or, if not so rated by Fitch, (x) an equivalent (or higher) rating by at least (1) two NRSROs (which may include S&P, DBRS and/or Moody’s) or (2) one NRSRO (which may include S&P, DBRS and/or Moody’s) and A.M. Best, or (y) Fitch has issued a Rating Agency Confirmation with respect to such insurance company) and (ii) with respect to the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
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insurance company that has a claim paying ability with any one of the following ratings: (1) “A-” or better by Fitch, (2) “A3” or better by Moody’s, (3) “A-” or better by S&P, (4) “A (low)” or better by DBRS or (5) “A:X” or better by A.M. Best, or (iii) in either case, an insurance company not satisfying clause (i) or (ii) but with respect to which a Rating Agency Confirmation is obtained from each Rating Agency. “Qualified Insurer” shall also mean any entity that satisfies all of the criteria, other than the ratings criteria, set forth in one of the foregoing clauses and whose obligations under the related insurance policy are guaranteed or backed by an entity that satisfies the ratings criteria set forth in such clause (construed as if such entity were an insurance company referred to therein).
“Qualifying Substitute Mortgage Loan” means, in the case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date of substitution, (i) has an outstanding principal balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of the Stated Principal Balance of the Deleted Mortgage Loan; provided, that, to the extent that the principal balance of such Mortgage Loan is less than the Stated Principal Balance of the Deleted Mortgage Loan, then such differential in principal amount, together with interest thereon at the Mortgage Rate on the related Mortgage Loan from the date as to which interest was last paid through the last day of the month in which such substitution occurs, shall be paid by the party effecting such substitution to the Master Servicer for deposit into the Collection Account, and shall be treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity not greater than, and not more than two (2) years less than, that of the Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to the outstanding principal balance on the date of substitution divided by its current Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current Debt Service Coverage Ratio equal to or greater than the current Debt Service Coverage Ratio of the Deleted Mortgage Loan; (v) will comply with all of the representations and warranties relating to Mortgage Loans set forth in the applicable Mortgage Loan Purchase Agreement, as of the date of substitution; (vi) has a Phase I Environmental Report relating to the related Mortgaged Property in its Mortgage Files and such Phase I Environmental Report does not, in the good faith reasonable judgment of the Special Servicer, consistent with the Servicing Standard, raise material issues that have not been adequately addressed; (vii) has an engineering report relating to the related Mortgaged Property in its Mortgage Files and such engineering report does not, in the good faith reasonable judgment of the Special Servicer, consistent with the Servicing Standard raise material issues that have not been adequately addressed; and (viii) as to which the Trustee and the Certificate Administrator have received an Opinion of Counsel, at the related Seller’s expense, that such Mortgage Loan is a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan may have a Maturity Date after the date three (3) years prior to the Rated Final Distribution Date, and provided, further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless a Rating Agency Communication has been provided to each Rating Agency, and provided, further, that, during any Subordinate Control Period, no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the Controlling Class Representative shall have approved of such substitution (provided, that such approval of the Controlling Class Representative may not be unreasonably withheld). If either one mortgage loan is substituted for more than one Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
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more Deleted Mortgage Loans, then (A) the principal balances referred to in clause (i) above shall be determined on the basis of aggregate principal balances and (B) the rates referred to in clause (ii) above and the remaining term to stated maturity referred to in clause (iii) above shall be determined on a weighted average basis (provided, that the Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less than the highest Pass-Through Rate of any outstanding Class of Certificates that is not based on, or subject to a cap equal to, the Weighted Average REMIC I Net Mortgage Rate). Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such substitution shall certify that such Mortgage Loan meets all of the requirements of this definition and shall send such certification to the Certificate Administrator, which shall deliver a copy of such certification to the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Controlling Class Representative promptly, and in any event within five (5) Business Days following the Certificate Administrator’s receipt of such certification.
“Rated Final Distribution Date” means with respect to each rated Class of Certificates, each REMIC I Regular Interest and each REMIC II Regular Interest, the Distribution Date in July 2050.
“Rating Agencies” means Moody’s, Fitch and DBRS; provided, that with respect to any matter affecting a Non-Serviced Mortgage Loan or any Serviced Companion Loan, “Rating Agency” shall also refer to any NRSRO engaged to rate the Serviced Companion Loan Securities or securities related to such Non-Serviced Mortgage Loan.
“Rating Agency Communication” means any written communication intended for a Rating Agency, which shall be delivered at least ten (10) Business Days prior to completing such action, in electronic document format suitable for website posting to the 17g-5 Information Provider (which will be required to post such request on the 17g-5 Information Provider’s Website in accordance with Section 5.7).
“Rating Agency Confirmation” means, with respect to any matter, written confirmation (which may be in any format that is consistent with the policies, procedures or guidelines of the applicable Rating Agency at the time such Rating Agency Confirmation is sought, including, without limitation, by way of electronic communication, press release or any other written communication and need not be directed or addressed to any party to this Agreement) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade or withdrawal of the then-current rating assigned to any Class of Certificates or, if applicable, any class of Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan, in each case, if then rated by the Rating Agency; provided, that a written waiver or other acknowledgment from any Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation (or such other waiver as set forth in Section 1.7) is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter. At any time during which no Certificates, Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan are rated by a Rating Agency, no Rating Agency Confirmation shall be required from that Rating Agency.
“Rating Agency Inquiry” shall have the meaning set forth in Section 5.7(g).
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“Realized Interest Loss” means, with respect to each Mortgage Loan (including an REO Mortgage Loan), (i) in the case of a Liquidation Realized Loss, the portion of any Liquidation Realized Loss that exceeds the Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss attributable to accrued interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an Expense Loss resulting in any period from the payment of the Special Servicing Fee and any Expense Losses treated as Realized Interest Losses pursuant to clause (iv) of the definition of “Realized Principal Loss” or (iv) in the case of a Modification Loss, a Modification Loss set forth in clause (iii) of the definition thereof.
“Realized Loss” means a Liquidation Realized Loss, a Modification Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan (including an REO Mortgage Loan).
“Realized Principal Loss” means, with respect to each Mortgage Loan (including an REO Mortgage Loan), (i) in the case of a Liquidation Realized Loss, the amount of such Liquidation Realized Loss, to the extent that it does not exceed the Unpaid Principal Balance (plus the amount of any Unliquidated Advance with respect to such Mortgage Loan) of the Mortgage Loan, (ii) in the case of a Modification Loss, the amount of such Modification Loss set forth in clause (i) of the definition thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Bankruptcy Loss attributable to the reduction in the principal balance of the related Mortgage Loan, (iv) in the case of an Expense Loss, the amount of such Expense Loss (other than Expense Losses resulting from the payment of Special Servicing Fees) to the extent that such Expense Loss does not exceed amounts collected in respect of the Mortgage Loans that were identified as allocable to principal in the Collection Period in which such Expense Losses were incurred, and any such excess shall be treated as a Realized Interest Loss, (v) any Nonrecoverable Advance reimbursed from collections of principal on the Mortgage Loans (including REO Mortgage Loans), and (vi) any Unliquidated Advance that is determined by the Master Servicer to be a Nonrecoverable Advance.
“Record Date” means, for each Distribution Date, the close of business on the last Business Day of the month immediately preceding the month in which such Distribution Date occurs.
“Recoveries” means, as of any Distribution Date, any amounts recovered with respect to a Mortgage Loan, a Serviced Companion Loan, a Serviced B Note or REO Property following the period in which a Final Recovery Determination occurs plus other amounts defined as “Recoveries” herein.
“Registered Certificates” has the meaning set forth in the Preliminary Statement hereto.
“Registered Global Certificate” means, with respect to any Registered Certificate, a single, permanent global Certificate, in definitive, fully registered form without interest coupons.
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“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a written certification substantially in the form set forth in Exhibit F hereto certifying that a beneficial owner of an interest in a Regulation S Temporary Global Certificate is not a U.S. Person (as defined in Regulation S).
“Regulation S Global Certificates” means the Regulation S Permanent Global Certificates together with the Regulation S Temporary Global Certificates.
“Regulation S Permanent Global Certificate” means any single permanent global Certificate, in definitive, fully registered form without interest coupons received in exchange for a Regulation S Temporary Global Certificate.
“Regulation S Temporary Global Certificate” means, with respect to any Class of Certificates offered and sold outside of the United States in reliance on Regulation S, a single temporary global Certificate, in definitive, fully registered form without interest coupons.
“Rehabilitated Mortgage Loan” means any Specially Serviced Mortgage Loan with respect to which (i) three (3) consecutive Scheduled Payments have been made (in the case of any such Mortgage Loan, Serviced Companion Loan or Serviced B Note that was modified, based on the modified terms), or a complete defeasance shall have occurred, (ii) no other Servicing Transfer Event has occurred and is continuing (or, with respect to determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other Appraisal Event has occurred and is continuing) and (iii) the Trust has been reimbursed for all costs incurred as a result of the occurrence of a Servicing Transfer Event (or such amounts constitute a Workout-Delayed Reimbursement Amount or such amounts have been forgiven). An A Note shall not constitute a Rehabilitated Mortgage Loan unless each related Serviced B Note would constitute a Rehabilitated Mortgage Loan. A Serviced B Note shall not constitute a Rehabilitated Mortgage Loan unless its related Mortgage Loan also would constitute a Rehabilitated Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Companion Loan would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage Loan.
“Release Date” means the date forty (40) days after the later of (i) the commencement of the offering of the Certificates and (ii) the Closing Date.
“Relevant Servicing Criteria” means the Servicing Criteria applicable to each Reporting Servicer (as set forth, with respect to the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Custodian or the Certificate Administrator, on Schedule X attached hereto). For clarification purposes, multiple Reporting Servicers can have responsibility
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for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or any Sub-Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or such Sub-Servicer.
“REMIC” means a real estate mortgage investment conduit within the meaning of Section 860D of the Code.
“REMIC I” means the segregated pool of assets consisting of the Mortgage Loans (other than any Excess Interest payable thereon), such amounts with respect thereto as shall from time to time be held in the Collection Account, the Excess Liquidation Proceeds Reserve Account, the TA Unused Fees Reserve Account, the Distribution Account (other than the portion thereof constituting the Excess Interest Sub-account) and the Interest Reserve Account, the Insurance Policies (other than the interests of the holder of any Non-Serviced Companion Loan or Serviced Companion Loan or B Note therein) and any REO Properties or beneficial interests therein (other than the interests of the holder of any Non-Serviced Companion Loan or any Serviced Companion Loan or B Note therein), for which a REMIC election will be made pursuant to Section 12.1(a) hereof. The Excess Interest on the ARD Mortgage Loans and the Excess Interest Sub-account shall constitute assets of the Trust but shall not be a part of any REMIC Pool formed hereunder. The Non-Serviced Companion Loans and any amounts payable thereon shall not constitute assets of the Trust or any REMIC Pool formed hereunder. No B Note or any amounts payable thereon shall constitute an asset of the Trust or any REMIC Pool formed hereunder. No Serviced Companion Loan or any amounts payable thereon shall constitute an asset of the Trust or any REMIC Pool formed hereunder.
“REMIC I Interests” means, collectively, the REMIC I Regular Interests and the REMIC I Residual Interest.
“REMIC I Net Mortgage Rate” means, with respect to any Distribution Date, as to any REMIC I Regular Interest, a rate per annum equal to: (a) if the related Mortgage Loan (including an REO Mortgage Loan) accrues interest on the basis of a 360-day year consisting of twelve (12) 30-day months (“30/360 Basis”), the Net Mortgage Rate thereof as of the Cut-Off Date and without regard to any modification, waiver or amendment of the terms thereof following the Cut-Off Date; and (b) if the related Mortgage Loan (including an REO Mortgage Loan) accrues interest on a basis other than a 30/360 Basis, the annualized rate at which interest would have to accrue in respect thereof on a 30/360 Basis for the related Mortgage Loan Accrual Period, in order to produce the amount of net interest that would have accrued during the related Mortgage Loan Accrual Period assuming a net interest rate equal to the rate set forth in clause (a) above and assuming an interest accrual basis that is the same as the actual interest accrual basis of such Mortgage Loan, provided that for purposes of this clause (b), commencing in 2016, (i) except with respect to the final Distribution Date, the REMIC I Net Mortgage Rate with respect to the subject REMIC I Regular Interest for the Distribution Dates in both January and February in any year that is not a leap year and in February in any year that is a leap year, shall be determined net of any amounts transferred to the Interest Reserve Account, and (ii) the REMIC I Net Mortgage Rate with respect to the subject REMIC I Regular Interest for the Distribution
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Date in March and the final Distribution Date shall be determined taking into account the addition of any amounts withdrawn from the Interest Reserve Account.
“REMIC I Principal Amount” means, with respect to any REMIC I Regular Interest, as of any date or time of determination, the then unpaid principal amount thereof, such amount being equal to the Cut-Off Date Principal Balance of the related Mortgage Loan, minus (i) the amount of all principal distributions previously deemed made with respect to such REMIC I Regular Interest pursuant to Section 6.3(a) and (ii) all Collateral Support Deficits allocated to such REMIC I Regular Interest in reduction of its REMIC I Principal Amount pursuant to Section 6.6.
“REMIC I Regular Interests” means, collectively, the uncertificated interests designated as “regular interests” (within the meaning of the REMIC Provisions) in REMIC I, each of which relates to a separate specific Mortgage Loan (including any successor REO Mortgage Loan and any Qualifying Substitute Mortgage Loan that may replace such Mortgage Loan), has an initial REMIC I Principal Amount equal to the Cut-Off Date Principal Balance of such Mortgage Loan, and has a Pass-Through Rate equal to the applicable REMIC I Net Mortgage Rate from time to time.
“REMIC I Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC I evidenced by the Class R Certificates. The REMIC I Residual Interest has no principal amount or Pass-Through Rate.
“REMIC II” means the segregated pool of assets consisting of the REMIC I Regular Interests and related amounts in the Distribution Account for which a REMIC election will be made pursuant to Section 12.1(a) hereof.
“REMIC II Interests” means, collectively, the REMIC II Regular Interests and the REMIC II Residual Interest.
“REMIC II Principal Amount” means, (i) with respect to any REMIC II Regular Interest (other than REMIC II Regular Interest A-S, REMIC II Regular Interest B or REMIC II Regular Interest C), as of any date or time of determination, the then Aggregate Certificate Balance of the Class of Corresponding Certificates and (ii) with respect to REMIC II Regular Interest A-S, REMIC II Regular Interest B or REMIC II Regular Interest C, as of any date or time of determination, the Certificate Balance of the Class A-S REMIC III Regular Interest, the Class B REMIC III Regular Interest or the Class C REMIC III Regular Interest, respectively.
“REMIC II Regular Interest A-1”means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-2” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate
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Balance of the Class A-2 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-SB” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-SB Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-3” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-3 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-4” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class A-4 Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest A-S” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Certificate Balance of the Class A-S REMIC III Regular Interest, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest B” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Certificate Balance of the Class B REMIC III Regular Interest, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest C” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Certificate Balance of the Class C REMIC III Regular Interest, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest D” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class D Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest E” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate
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Balance of the Class E Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest F” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class F Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest G” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class G Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interest H” means the uncertificated interest designated as a “regular interest” (within the meaning of the REMIC Provisions) in REMIC II, which shall consist of an interest having a REMIC II Principal Amount equal to the Aggregate Certificate Balance of the Class H Certificates, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.
“REMIC II Regular Interests” means, collectively, the REMIC II Regular Interest A-1, the REMIC II Regular Interest A-2, the REMIC II Regular Interest A-SB, the REMIC II Regular Interest A-3, the REMIC II Regular Interest A-4, the REMIC II Regular Interest A-S, the REMIC II Regular Interest B, the REMIC II Regular Interest C, the REMIC II Regular Interest D, the REMIC II Regular Interest E, the REMIC II Regular Interest F, the REMIC II Regular Interest G and the REMIC II Regular Interest H.
“REMIC II Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC II evidenced by the Class R Certificates. The REMIC II Residual Interest has no principal amount or Pass-Through Rate.
“REMIC III” means the segregated pool of assets consisting of the REMIC II Regular Interests and related amounts in the Distribution Account for which a REMIC election will be made pursuant to Section 12.1(a) hereof.
“REMIC III Interests” means, collectively, the REMIC III Regular Interests and the REMIC III Residual Interest.
“REMIC III Regular Certificates” means, collectively, the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-FG, Class X-H, Class D, Class E, Class F, Class G and Class H Certificates.
“REMIC III Regular Interests” means, collectively, the Class A-1 Certificates, Class A-2 Certificates, Class A-SB Certificates, Class A-3 Certificates, Class A-4 Certificates, Class D Certificates, Class E Certificates, Class F Certificates, Class G Certificates, Class H Certificates, the EC REMIC III Regular Interests and the Class X REMIC III Regular Interests.
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“REMIC III Regular Interest X-A-1” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-1” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-1 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-1 from time to time.
“REMIC III Regular Interest X-A-2” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-2” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-2 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-2 from time to time.
“REMIC III Regular Interest X-A-SB” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-SB” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-SB outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-SB from time to time.
“REMIC III Regular Interest X-A-3” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-3” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-3 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-3 from time to time.
“REMIC III Regular Interest X-A-4” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-4” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-4 outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-4 from time to time.
“REMIC III Regular Interest X-A-S” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-A-S” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest A-S outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest A-S from time to time.
“REMIC III Regular Interest X-F” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-F” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest F outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest F from time to time.
“REMIC III Regular Interest X-G” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-G” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest G outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest G from time to time.
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“REMIC III Regular Interest X-H” means the “regular interest” (within the meaning of the REMIC Provisions) in REMIC III that is designated “X-H” and has no principal amount, a Notional Amount equal to the REMIC II Principal Amount of REMIC II Regular Interest H outstanding from time to time and a Pass-Through Rate equal to the Class X Strip Rate with respect to REMIC II Regular Interest H from time to time.
“REMIC III Residual Interest” means the “residual interest” (within the meaning of the REMIC Provisions) in REMIC III evidenced by the Class R Certificates. The REMIC III Residual Interest has no principal amount or Pass-Through Rate.
“REMIC Pool” means each of the three (3) segregated pools of assets designated as a REMIC pursuant to Section 12.1(a) hereof. For the avoidance of doubt, no BANA Lender Successor Borrower Right, CIBC Lender Successor Borrower Right, SMF III Lender Successor Borrower Right or MSMCH Seller Defeasance Rights and Obligations is a part of any “REMIC Pool”.
“REMIC Provisions” means the provisions of the federal income tax law governing the treatment of real estate mortgage investment conduits and their investors, including the conditions that must be satisfied for an arrangement to be treated as a REMIC and for a loan secured by an interest in real property to be a qualified mortgage, which appear in Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, related provisions, and final, temporary and proposed regulations and rulings promulgated thereunder, as the foregoing may be in effect from time to time and taking account, as appropriate, of any proposed legislation or regulations which, as proposed, would have an effective date prior to enactment or promulgation thereof. For the avoidance of doubt, the provisions of the mortgage documents with respect to a mortgage loan fail to comply with the “REMIC Provisions” if such mortgage documents permit transactions that would result in the mortgage loan failing to satisfy the definition of “qualified mortgage” under such federal income tax law.
“Rent Loss Policy” or “Rent Loss Insurance” means a policy of insurance generally insuring against loss of income or rent resulting from force majeure.
“Rents from Real Property” means, with respect to any REO Property, income of the character set forth in Section 856(d) of the Code.
“REO Account” shall have the meaning set forth in Section 9.14(a) hereof.
“REO Disposition” means the receipt by the Master Servicer or the Special Servicer of Liquidation Proceeds and other payments and recoveries (including proceeds of a final sale) from the sale or other disposition of REO Property.
“REO Income” means, with respect to any REO Property that had not been security for an A/B Whole Loan or Loan Pair for any Collection Period, all income received in connection with such REO Property during such period less any operating expenses, utilities, real estate taxes, management fees, insurance premiums, expenses for maintenance and repairs and any other capital expenses directly related to such REO Property paid during such period. With respect to any Non-Serviced Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has foreclosed upon the Mortgaged Property secured by such Non-
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Serviced Mortgage Loan Mortgage), the REO Income shall comprise only such portion of the foregoing that is allocable to the holder of such Non-Serviced Mortgage Loan.
“REO Serviced B Note” means a Serviced B Note as to which the related Mortgaged Property has become an REO Property. Such Serviced B Note shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“REO Loan” means any of an REO Mortgage Loan, REO Serviced B Note and REO Serviced Companion Loan.
“REO Mortgage Loan” means a Mortgage Loan as to which the related Mortgaged Property has become an REO Property. Such Mortgage Loan shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“REO Property” means a Mortgaged Property (or an interest therein, if the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing an A/B Whole Loan has been acquired by the Trust) acquired by the Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in connection with a Defaulted Loan or otherwise treated as foreclosure property under the REMIC Provisions; provided that a Mortgaged Property that secures a Non-Serviced Mortgage Loan shall constitute an REO Property if and when it is acquired under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement for the benefit of the Trustee as the holder of such Non-Serviced Mortgage Loan and of the holder of the related Non-Serviced Companion Loan(s) through foreclosure, acceptance of a deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in connection with a default or otherwise treated as foreclosure property under the REMIC Provisions. The Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
“REO Serviced Companion Loan” means a Serviced Companion Loan as to which the related Mortgaged Property has become an REO Property. Such Serviced Companion Loan shall be deemed to remain outstanding for purposes of various calculations under this Agreement notwithstanding that the related Mortgaged Property has become an REO Property.
“Report Date” means the second (2nd) Business Day before the related Distribution Date.
“Reportable Event” has the meaning set forth in Section 13.7.
“Reporting Requirements” has the meaning set forth in Section 13.12.
“Reporting Servicer” means the Master Servicer, the Special Servicer, the Trust Advisor and any Servicing Function Participant (including the Certificate Administrator, the Custodian, the Trustee (if and for such time as it is a Servicing Function Participant) and each Sub-Servicer), as the case may be.
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“Repurchase Request Recipient” has the meaning set forth in Section 2.3(e).
“Repurchased Loan” has the meaning set forth in Section 2.3(a).
“Request for Release” means a request for release of certain documents relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
“Requesting Holders” has the meaning set forth in Section 6.9.
“Requesting Party” has the meaning set forth in Section 1.7.
“Required Appraisal Loan” means any Mortgage Loan, Loan Pair or A/B Whole Loan as to which an Appraisal Event has occurred. In the case of an A/B Whole Loan or Loan Pair, upon the occurrence of an Appraisal Event in respect of any related A Note or Serviced B Note or any related Serviced Pari Passu Mortgage Loan or Serviced Companion Loan, the related A/B Whole Loan or Loan Pair, as applicable, shall be deemed to be a single Required Appraisal Loan. A Mortgage Loan, Loan Pair or A/B Whole Loan will cease to be a Required Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
“Reserve Accounts” means, collectively, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account.
“Responsible Officer” means, when used with respect to the Trustee, the Custodian or the Certificate Administrator, (i) any officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, assigned to the Corporate Trust Office of such party, in each case, with direct responsibility for the administration of this Agreement, (ii) with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (iii) in the case of any certification required to be signed by a Responsible Officer, any officer whose name and specimen signature appear on a list of corporate trust officers furnished to the Master Servicer by the Trustee, the Custodian or the Certificate Administrator, as applicable, as such list may from time to time be amended.
“Rule 15Ga-1” means Rule 15Ga-1 under the Exchange Act.
“Rule 15Ga-1 Notice” has the meaning set forth in Section 2.3(e).
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Global Certificate” means, with respect to any Class of Certificates offered and sold in reliance on Rule 144A or to certain Institutional Accredited Investors, a single, permanent global Certificate, in definitive, fully registered form without interest coupons.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or its successor in interest. If neither such rating agency nor any successor remains in existence or is no longer an NRSRO with respect to commercial mortgage-backed securities, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of
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which designation shall be given to the other parties hereto, and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).
“Sarbanes-Oxley Certification” has the meaning set forth in Section 13.6.
“Scheduled Payment” means each scheduled payment of principal of, and/or interest on, a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note required to be paid on its Due Date by the Mortgagor in accordance with the terms of the related Mortgage Note, Serviced Companion Loan or Serviced B Note (excluding all amounts of principal and interest which were due on or before the Cut-Off Date, whenever received, and taking account of any modifications thereof and the effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for any Serviced Pari Passu Mortgage Loan or Serviced Companion Loan or any A Note or Serviced B Note shall be calculated without regard to the related Intercreditor Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
“Seller” means BANA, MSMCH, CIBC or SMF III as the case may be. References to obligations of any Seller herein shall constitute obligations of the related Seller Guarantor to the extent set forth in the related Mortgage Loan Purchase Agreement.
“Seller Guarantor” means any Person that guarantees the payment and/or performance obligations of a Seller under any Mortgage Loan Purchase Agreement.
“Seller Sub-Servicer” means a sub-servicer or Additional Servicer required by a Seller to be retained by the Master Servicer or the Special Servicer, as applicable, as listed on Schedule XV hereto.
“Senior Consultation Period” means a period when the Aggregate Certificate Balance of the Class E Certificates (without regard to any Appraisal Reductions allocable to such Class in accordance with Section 6.9) is less than 25% of the initial Aggregate Certificate Balance of the Class E Certificates.
“Serviced B Note” means, with respect to any A/B Whole Loan or Loan Pair, any related subordinated note not included in the Trust, which is serviced pursuant to this Agreement and is subordinated in right of payment to the related Mortgage Loan to the extent set forth in the related Intercreditor Agreement. There are no Serviced B Notes related to the Trust as of the Closing Date.
“Serviced Companion Loan” means a mortgage loan that is serviced under this Agreement, is not a “Mortgage Loan” included in the Trust, and is paid on a pari passu basis with a Mortgage Loan included in the Trust. The Serviced Companion Loans related to the Trust as of the Closing Date are the TKG 3 Retail Portfolio Serviced Companion Loan, the 32 Old Slip
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Fee Serviced Companion Loan and the Aviare Place Apartments Serviced Companion Loan. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Companion Loan shall cease to be a Serviced Companion Loan and shall be a Non-Serviced Companion Loan.
“Serviced Companion Loan Custodial Account” means each of the custodial sub-account(s) of the Collection Account (but which are not included in the Trust) created and maintained by the Master Servicer pursuant to Section 5.1(c) on behalf of the holder of the related Serviced Companion Loan. Any such sub-account(s) shall be maintained as a sub-account of an Eligible Account.
“Serviced Companion Loan Securities” means for so long as the Mortgage Loan or any successor REO Mortgage Loan is included in the Trust, any class of securities backed by the related Serviced Companion Loan. Any reference herein to a “series” of Serviced Companion Loan Securities shall refer to separate securitizations of one or more of the Serviced Companion Loans.
“Serviced Pari Passu Mortgage” means the Mortgage securing a Serviced Pari Passu Mortgage Loan and its related Serviced Companion Loan secured by the related Mortgaged Property. The Serviced Pari Passu Mortgages related to the Trust as of the Closing Date are the Mortgages securing the TKG 3 Retail Portfolio Loan Pair, the 32 Old Slip Fee Loan Pair and the Aviare Place Apartments Loan Pair. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the Mortgage securing the TKG 3 Retail Portfolio Loan Pair shall cease to be a Serviced Pari Passu Mortgage.
“Serviced Pari Passu Mortgage Loan” means a Mortgage Loan that is included in the Trust and is paid on a pari passu basis with a Serviced Companion Loan to the extent set forth in the related Intercreditor Agreement. The Serviced Pari Passu Mortgage Loans included in the Trust as of the Closing Date are the TKG 3 Retail Portfolio Mortgage Loan, the 32 Old Slip Fee Mortgage Loan and the Aviare Place Apartments Mortgage Loan. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan shall cease to be a Serviced Pari Passu Mortgage Loan and shall be a Non-Serviced Mortgage Loan.
“Service(s)(ing)” means, in accordance with Regulation AB, the act of servicing and administering the Mortgage Loans or any other assets of the Trust by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities market.
“Servicer Errors and Omissions Insurance Policy” or “Errors and Omissions Insurance Policy” means an errors and omissions insurance policy maintained by the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
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“Servicer Fidelity Bond” or “Fidelity Bond” means a bond or insurance policy under which the insurer agrees to indemnify the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, (subject to standard exclusions) for all losses (less any deductible) sustained as a result of any theft, embezzlement, fraud or other dishonest act on the part of the Master Servicer’s, the Special Servicer’s, the Trustee’s, the Custodian’s or the Certificate Administrator’s, as the case may be, officers or employees and is maintained in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
“Servicer Mortgage File” means copies of the mortgage documents listed in the definition of “Mortgage File” relating to a Mortgage Loan and shall also include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, any insurance policies or certificates (as applicable), any property inspection reports, any financial statements on the property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies.
“Servicer Termination Event” has the meaning set forth in Section 8.28(a).
“Servicing Advance” means any cost or expense of the Master Servicer, the Special Servicer or the Trustee, as the case may be, designated as a Servicing Advance pursuant to this Agreement and any other costs and expenses incurred by the Master Servicer, the Special Servicer or the Trustee, as the case may be, to protect and preserve the security for such Mortgage Loan and/or (if applicable) the related Serviced Companion Loan or Serviced B Note.
“Servicing Criteria” means the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.
“Servicing Function Participant” means any Person (including the Trustee, the Custodian and the Certificate Administrator), other than the Master Servicer, the Special Servicer and the Trust Advisor, that, within the meaning of Item 1122 of Regulation AB, is performing activities addressed by the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the Mortgage Loans (based on their Unpaid Principal Balance). The Trustee is a Servicing Function Participant only if, and for such time as, it has made an Advance during any calendar year covered by an Annual Report on Assessment of Compliance with Servicing Criteria.
“Servicing Officer” means, any officer or employee of the Master Servicer or an Additional Servicer, as the case may be, involved in, or responsible for, the administration and servicing of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee, the Custodian and the Certificate Administrator by the Master Servicer or an Additional Servicer, as the case may be, and signed by an officer of the Master Servicer or an Additional Servicer, as the case may be, as such list may from time to time be amended.
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“Servicing Standard” means, with respect to the Master Servicer or the Special Servicer, as the case may be, to service and administer the Mortgage Loans (and any Serviced Companion Loan and Serviced B Note but not any Non-Serviced Mortgage Loan) that it is obligated to service and administer pursuant to this Agreement on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders (and in the case of any Serviced Companion Loan or Serviced B Note (taking into account the subordinate nature of any such Serviced B Note), the related holder of the Serviced Companion Loan or Serviced B Note, as applicable) as a collective whole (as determined by the Master Servicer or the Special Servicer, as the case may be, in its good faith and reasonable judgment), in accordance with applicable law, the terms of this Agreement and the terms of the respective Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (and, in the case of any Loan Pair or A/B Whole Loan, the related Intercreditor Agreement) and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in its general mortgage servicing and REO property management activities on behalf of third parties or on behalf of itself, whichever is higher, with respect to mortgage loans and REO properties that are comparable to those for which it is responsible hereunder;
(b) with a view to the timely collection of all Scheduled Payments of principal and interest under the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note or, if a Mortgage Loan, any Serviced Companion Loan or any Serviced B Note comes into and continues in default and with respect to the Special Servicer, if, in the good faith and reasonable judgment of the Special Servicer, no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery of principal and interest on such Mortgage Loan to the Certificateholders (as a collective whole) (or in the case of any A/B Whole Loan and its related Serviced B Note or any Loan Pair, the maximization of the recovery of principal and interest on such A/B Whole Loan or Loan Pair, as applicable, to the Certificateholders and the holder of any related Serviced B Note (taking into account the subordinate nature of any such Serviced B Note) or Serviced Companion Loan, as applicable, all taken as a collective whole) on a net present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the applicable Calculation Rate); and
(c) without regard to: (I) any other known relationship that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof may have with the related Mortgagor or any Affiliate of the related Mortgagor; (II) the ownership of any Certificate or any interest in any Non-Serviced Companion Loan, Serviced Companion Loan or B Note or any mezzanine loan related to a Mortgage Loan by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof; (III) the Master Servicer’s or the Special Servicer’s obligation to make Advances; (IV) the right of the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the case may be, to receive any compensation and/or reimbursement of costs, or the sufficiency of any compensation payable to it, hereunder or with respect to any particular transaction and (V) any obligation of the Master Servicer (or any Affiliate thereof) to repurchase any Mortgage Loan from the Trust.
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“Servicing Transfer Event” means the occurrence of any of the following events: (i) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note is past due with respect to a Balloon Payment, and the Master Servicer or the Special Servicer has determined, in its good faith reasonable judgment in accordance with the Servicing Standard, that payment is unlikely to be made on or before the 60th day after the date on which such Balloon Payment was due (or if the Master Servicer has received, prior to the 60th day after the Due Date of such Balloon Payment, written evidence (which it shall promptly deliver to the Special Servicer) from an institutional lender of its binding commitment to refinance such Mortgage Loan, Serviced Companion Loan or Serviced B Note (which commitment must be reasonably acceptable to the Special Servicer), one hundred twenty (120) days succeeding the date on which such Balloon Payment was due; provided that if such refinancing does not occur during the time period specified in such written refinancing commitment, a Servicing Transfer Event shall be deemed to have occurred), or any other payment is more than sixty (60) days past due or has not been made on or before the second (2nd) Due Date following the Due Date such payment was due; (ii) either (A) the Mortgagor under any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note has, to the Master Servicer’s or the Special Servicer’s knowledge, consented to the appointment of a receiver or conservator in any insolvency or similar proceeding of, or relating to, such Mortgagor or to all or substantially all of its property, or (B) the Mortgagor has become the subject of a decree or order issued under a bankruptcy, insolvency or similar law and such decree or order shall have remained undischarged or unstayed for a period of sixty (60) days; (iii) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer has received notice of the foreclosure or proposed foreclosure of any other lien on the related Mortgaged Property; (iv) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer has obtained knowledge of a default (other than a failure by the related Mortgagor to pay principal or interest) that, in the good faith reasonable judgment of the Master Servicer or the Special Servicer, materially and adversely affects the interests of the Certificateholders or the holder of any related Serviced Companion Loan or Serviced B Note and which has occurred and remains unremedied for the applicable grace period specified in such Mortgage Loan (or, if no grace period is specified, sixty (60) days); (v) the Mortgagor under any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors or voluntarily suspends payment of its obligations; and (vi) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note, the Master Servicer or Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling Class Representative) has determined, in the good faith reasonable judgment of the Master Servicer or the Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling Class Representative), that (a) a payment default is imminent or is likely to occur within sixty (60) days, or (b) any other default is imminent or is likely to occur within sixty (60) days and such default, in the good faith reasonable judgment of the Master Servicer or the Special Servicer (and, in the case of the Special Servicer, during any Subordinate Control Period, with the consent of the Controlling
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Class Representative), is reasonably likely to materially and adversely affect the interests of the Certificateholders or the holder of any related Serviced Companion Loan or Serviced B Note (as the case may be); provided, that any determination under this clause (vi)(b) with respect to any Mortgage Loan (or Serviced B Note or Serviced Companion Loan, if applicable) solely by reason of the failure (or imminent failure) of the related Mortgagor to maintain or cause to be maintained insurance coverage against damages or losses arising from acts of terrorism may only be made by the Special Servicer if it determines that such default is not an Acceptable Insurance Default (and, during any Subordinate Control Period, with the consent of the Controlling Class Representative); provided, further, that (1) if the holder of any related Serviced B Note exercised its right to cure a monetary default and a monetary default occurs in the following month due to the holder of such Serviced B Note’s failure to cure, then servicing of such Mortgage Loan shall be transferred to the Special Servicer on the Business Day following the expiration of the Cure Period (as defined in the related Intercreditor Agreement) of the holder of such Serviced B Note if the holder of such Serviced B Note does not cure the current monetary default or (2) if the holder of any related Serviced B Note has exercised its right to cure the number of consecutive monetary defaults it is permitted to cure under the related Intercreditor Agreement and a monetary default occurs in the following month, then servicing of such Mortgage Loan shall be transferred to the Special Servicer at the expiration of the Mortgagor’s grace period for the current monetary default. If a Servicing Transfer Event occurs with respect to an A Note or a Serviced B Note, it shall be deemed to have occurred also with respect to its related Serviced B Note or A Note, as the case may be; and provided, further, that if a Servicing Transfer Event would otherwise have occurred with respect to an A Note, but has not so occurred solely because the holder of any related Serviced B Note has exercised its cure rights under the related Intercreditor Agreement, then a Servicing Transfer Event will not occur with respect to such A/B Whole Loan. If a Servicing Transfer Event occurs with respect to any Serviced Pari Passu Mortgage Loan or any Serviced Companion Loan, it shall be deemed to have occurred also with respect to the related Serviced Companion Loan or Serviced Pari Passu Mortgage Loan, respectively. Under the applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if a Servicing Transfer Event occurs with respect to any Non-Serviced Companion Loan or any related Serviced B Note, it shall be deemed to have occurred also with respect to the related Non-Serviced Mortgage Loan.
“Significant Obligor” means (a) any obligor (as defined in Item 1101(i) of Regulation AB) or group of affiliated obligors on any Mortgage Loan or group of Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Loans (by principal balance as of the Cut-off Date); or (b) any single Mortgaged Property or group of Mortgaged Properties securing any Mortgage Loan or group of cross-collateralized and/or cross-defaulted Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Loans (by principal balance as of the Cut-off Date). There is no Significant Obligor related to the Trust.
“Similar Laws” has the meaning set forth in Section 3.3(d).
“Single-Purpose Entity” means a Person, other than an individual, whose organizational documents provide substantially to the effect that it is formed or organized solely for the purpose of owning and collecting payments from Defeasance Collateral for the benefit of the Trust and which (i) does not engage in any business unrelated thereto and the financing thereof; (ii) does not have any assets other than those related to its interest in Defeasance
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Collateral; (iii) maintains its own books, records and accounts, in each case which are separate and apart from the books, records and accounts of any other Person; (iv) conducts business in its own name and uses separate stationery, invoices and checks; (v) does not guarantee or assume the debts or obligations of any other Person; (vi) does not commingle its assets or funds with those of any other Person; (vii) transacts business with affiliates on an arm’s length basis pursuant to written agreements; and (viii) holds itself out as being a legal entity, separate and apart from any other Person, and otherwise complies with the single-purpose requirements established by the Rating Agencies. The entity’s organizational documents also provide that any dissolution and winding up or insolvency filing for such entity requires the unanimous consent of all partners or members, as applicable, and that such documents may not be amended with respect to the Single-Purpose Entity requirements.
“SMF III” has the meaning set forth in the Preliminary Statement hereto.
“SMF III Lender Successor Borrower Right” has the meaning set forth in Section 8.3(h) hereof.
“SMF III Loans” means, collectively, those Mortgage Loans sold to the Depositor pursuant to Mortgage Loan Purchase Agreement IV and shown on Schedule IV hereto (or, with respect to any Joint Mortgage Loan, SMF III’s pro rata share of such Joint Mortgage Loans based on SMF III’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan).
“Sole Certificateholder”: Any Certificate Owner of a Book-Entry Certificate or a Holder of a Definitive Certificate (or any group of such Certificate Owners or Holders acting in unanimity) holding 100% of the then outstanding Class X-FG, Class X-H, Class E, Class F, Class G and Class H Certificates; provided that the Aggregate Certificate Balances and Notional Amounts of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class A-S, Class X-A, Class B, Class PST, Class C, Class X-B and Class D Certificates have been reduced to zero.
“Space Lease”: The space or occupancy lease pursuant to which a Mortgagor holds a leasehold interest in the related Mortgaged Property, together with any estoppels or other agreements executed and delivered by the lessor in favor of the lender under the related Mortgage Loan(s).
“Special Notice” means any (a) notice transmitted to Certificateholders pursuant to Section 3.6(b) of this Agreement, (b) notice of any request by at least 25% of the aggregate Voting Rights of the Certificates to terminate and replace the Special Servicer pursuant to Section 9.30(c) of this Agreement and (c) notice of any request by at least 25% of the aggregate Voting Rights of the Certificates to terminate and replace the Trust Advisor pursuant to Section 10.12(b) of this Agreement.
“Special Servicer” means, (a) with respect to the Mortgage Loans other than the Excluded Mortgage Loans, LNR Partners, LLC, or its successor in interest, or any successor General Special Servicer appointed as herein provided; and (b) with respect to any Excluded Mortgage Loan, Wells Fargo Bank, National Association, or its successor in interest, or any successor Excluded Mortgage Loan Special Servicer appointed as herein provided.
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“Special Servicer Compensation” means, with respect to any applicable period, the sum of the Special Servicing Fees, the Liquidation Fees and Workout Fees and any other amounts to be paid to the Special Servicer pursuant to the terms of this Agreement.
“Special Servicer Decisions” means any of the following:
(a) approving any waiver regarding the receipt of financial statements (other than immaterial timing waivers);
(b) agreeing to any modification, waiver, consent or amendment of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (i) a waiver of a Mortgage Loan event of default, (ii) a modification of the type of Defeasance Collateral required under the related Mortgage Loan documents such that Defeasance Collateral other than direct, non-callable obligations of the United States of America would be permitted or (iii) a modification that would permit a principal prepayment instead of defeasance if the related Mortgage Loan documents do not otherwise permit such principal prepayment;
(c) in circumstances where no lender discretion is permitted other than confirming that the conditions in the related Mortgage Loan documents have been satisfied (including determining whether any applicable terms or tests have been satisfied), any request to incur additional debt in accordance with the terms of the related Mortgage Loan documents;
(d) approving easements that materially affect the use or value of a Mortgaged Property or the borrower’s ability to make payments with respect to the related Mortgage Loan;
(e) in circumstances where no lender discretion is permitted other than confirming that the conditions in the applicable Mortgage Loan documents have been satisfied, any requests for the release of collateral or the acceptance of substitute or additional collateral for a Mortgage Loan (other than a Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair other than: (i) grants of easements or rights of way that do not materially affect the use or value of the Mortgaged Property or the Mortgagor’s ability to make any payments with respect to such Mortgage Loan, A/B Whole Loan or Loan Pair; (ii) the release of collateral securing such Mortgage Loan, A/B Whole Loan or Loan Pair in connection with a defeasance of such collateral; or (iii) that are related to any condemnation action that is pending, or threatened in writing, and would affect a non-material portion of the Mortgaged Property;
(f) any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit held as “performance,” “earn-out” or “holdback” escrows or reserves including the funding or disbursement of any such amounts with respect to the Mortgage Loans listed on Schedule XIX to this Agreement, other than routine and/or customary escrow and reserve fundings or disbursements for which the satisfaction of performance related criteria is not required pursuant to the terms of the related Mortgage Loan documents (for the avoidance of doubt, any request for the funding or disbursement of ordinary course impounds, repair and replacement reserves, lender approved budget and operating expenses, and tenant improvements pursuant to an approved lease, each in accordance with the
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Mortgage Loan documents or any other funding or disbursement as mutually agreed upon by the Master Servicer and the Special Servicer, shall not constitute a Special Servicer Decision);
(g) the modification, waiver, amendment, execution, termination or renewal of any lease (including entering into any related subordination, non-disturbance and attornment agreement), to the extent lender approval is required under the related Mortgage Loan documents and if such lease (i) involves a ground lease or lease of an outparcel or affects an area greater than or equal to the greater of (x) 10% of leasable space or (y) 20,000 square feet, (ii) is for over 50,000 square feet, or (iii) otherwise constitutes a “major lease” or “material lease,” if applicable, under the related Mortgage Loan documents, subject to any deemed approval expressly set forth in the related lease;
(h) any adoption or implementation of a budget submitted by a Mortgagor with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair (to the extent lender approval is required under the related Mortgage Loan documents), if (i) such Mortgage Loan, A/B Whole Loan or Loan Pair is on the CREFC® Servicer Watch List or (ii) such budget includes material (more than 10%) increases in operating expenses or payments to entities actually known by the Master Servicer to be Affiliates of the related Mortgagor (excluding affiliated managers paid at fee rates agreed to at the origination of the related Mortgage Loan, A/B Whole Loan or Loan Pair), subject in each case to any deemed approval expressly set forth in the related Mortgage Loan documents; and
(i) any determination as to whether or not to cure any borrower defaults relating to ground leases (or, with respect to leasehold interests that are Space Leases or air rights leases, Space Leases or air rights leases) that are part of the collateral for the related Mortgage Loan;
provided, that in the case of each of the foregoing clauses (a) through (i), such action is not otherwise a Major Decision.
“Special Servicer Indemnification Parties” has the meaning set forth in Section 9.24(a).
“Special Servicer Losses” has the meaning set forth in Section 9.24(a).
“Special Servicer Remittance Date” means the Business Day following each Determination Date.
“Special Servicing Fee” means, with respect to each Specially Serviced Mortgage Loan and REO Loan (other than an REO Loan that was a Non-Serviced Mortgage Loan), an amount accrued during any Mortgage Loan Accrual Period at the Special Servicing Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Specially Serviced Mortgage Loan or REO Loan, as the case may be, during such related Mortgage Loan Accrual Period; provided that such amounts shall be prorated for partial periods (including by reason of a Mortgage Loan, Serviced B Note or Serviced Companion Loan being a Specially Serviced Mortgage Loan or REO Loan for only part of a related Mortgage Loan Accrual Period).
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“Special Servicing Fee Rate” means, with respect to each Specially Serviced Mortgage Loan and REO Loan (other than an REO Loan that was a Non-Serviced Mortgage Loan), 0.25% per annum (or, if such rate would result in a Special Servicing Fee that would be less than $2,000 in any given month, such higher rate as would result in a Special Servicing Fee equal to $2,000 for such month).
“Special Servicing Officer” means any officer or employee of the Special Servicer involved in, or responsible for, the administration and servicing of the Specially Serviced Mortgage Loans whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor and the Master Servicer by the Special Servicer signed by an officer of the Special Servicer, as such list may from time to time be amended.
“Specially Serviced Mortgage Loan” means, as of any date of determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion Loan or Serviced B Note with respect to which the Master Servicer has notified the parties set forth in Section 8.1(b) that a Servicing Transfer Event has occurred, and the Special Servicer has received all information, documents and records relating to such Mortgage Loan, Serviced Companion Loan or Serviced B Note as reasonably requested by the Special Servicer to enable it to assume its duties with respect to such Mortgage Loan, Serviced Companion Loan or Serviced B Note. A Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and after the date on which the Special Servicer notifies the parties set forth in Section 8.1(b), that such Mortgage Loan has become a Rehabilitated Mortgage Loan with respect to all applicable Servicing Transfer Events and the Master Servicer has received all information, documents and records reasonably requested by it to enable it to perform its servicing duties in respect of such Mortgage Loan, unless and until the Master Servicer notifies the parties set forth in Section 8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan, Serviced Companion Loan or Serviced B Note exists or occurs.
“Standard Hazard Insurance Policy” means a fire and casualty extended coverage insurance policy in such amount and with such coverage as required by this Agreement.
“Startup Day” means, with respect to each of REMIC I, REMIC II and REMIC III, the day designated as such in Section 12.1(b).
“Stated Principal Balance” means, with respect to any Mortgage Loan (including an REO Mortgage Loan), as of any date of determination, for purposes of performing various calculations under this Agreement, an amount equal to the Cut-Off Date Principal Balance thereof (or, in the case of a Qualifying Substitute Mortgage Loan, the outstanding principal balance thereof as of the date of substitution after taking into account all payment made or due during or prior to the month of substitution), as permanently reduced on each Distribution Date (to not less than zero) by (i) that portion, if any, of the Principal Distribution Amount for such Distribution Date described in clause (I)(A) of the definition of “Principal Distribution Amount” that is allocable to such Mortgage Loan, and (ii) any Realized Principal Loss incurred in respect of such Mortgage Loan during the related Collection Period (provided that, if some or all of a Realized Principal Loss constitutes an Advance that previously reduced the Stated Principal Balance thereof by operation of clause (i) above, then the amount of that Advance
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included in such Realized Principal Loss shall not further reduce the Stated Principal Balance thereof under this clause (ii), and provided that, for purposes of allocating Collateral Support Deficits to the respective Classes of the Principal Balance Certificates, a Realized Principal Loss shall not include any Trust Advisor Expense that has not been allocated pursuant to Section 6.11). Notwithstanding the foregoing, if a Cash Liquidation, a Principal Prepayment in full, a discounted payoff or an REO Disposition occurs in respect of any Mortgage Loan or any related REO Property, or, if any Mortgage Loan or any related REO Property is otherwise removed from the Trust, then the “Stated Principal Balance” thereof (including an REO Mortgage Loan) shall be zero commencing as of the first (1st) Distribution Date following the end of the applicable Collection Period in which such event occurred. The “Stated Principal Balance” of any B Note, Serviced Companion Loan or Non-Serviced Companion Loan shall equal its Unpaid Principal Balance as only reduced on each Distribution Date in accordance with the definition of “Unpaid Principal Balance” by principal amounts collected and/or losses incurred during the related Collection Period.
“Subcontractor” means any vendor, subcontractor or other Person that is not responsible for the overall servicing of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of the Master Servicer, the Special Servicer, an Additional Servicer or a sub-servicer.
“Subordinate Certificates” means, collectively, the Class A-S, Class B, Class PST, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
“Subordinate Control Period” means any period when the Aggregate Certificate Balance of the Class E Certificates (as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 6.9) is at least 25% of the initial Aggregate Certificate Balance of the Class E Certificates.
“Sub-Servicer” means any Person that (1) is a Servicing Function Participant, (2) Services the assets of the Trust on behalf of (a) the Trust, (b) the Master Servicer, (c) the Special Servicer, (d) any Additional Servicer, (e) the Certificate Administrator, (f) the Custodian or (g) any other Person that otherwise constitutes a “Sub-Servicer” under Regulation AB, and (3) is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of Servicing functions that are required to be performed by the Trust, the Certificate Administrator, the Master Servicer, the Special Servicer or any Additional Servicer under this Agreement or any sub-servicing agreement (including any primary servicing agreement) and are identified in Item 1122(d) of Regulation AB.
“Successful Bidder” has the meaning set forth in Section 8.29(d).
“Surviving Sub-Servicer” has the meaning set forth in Section 8.4(a).
“TA Unused Fees” means any amounts in the nature of Trust Advisor Fees that were otherwise payable, as provided in this Agreement, to a Trust Advisor that has been terminated or resigned, if and to the extent such amounts are not payable to a replacement trust advisor.
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“TA Unused Fees Reserve Account” means the TA Unused Fees Reserve Account maintained by the Certificate Administrator in accordance with the provisions of Section 5.3, which shall be a subaccount of an Eligible Account.
“Tax Matters Person” means the person designated as the “tax matters person” of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
“Termination Price” has the meaning set forth in Section 11.1(b).
“Third Party Reports” means, with respect to any Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report or property condition report, if any.
“Threshold Event Collateral” means, with respect to any A/B Whole Loan or Loan Pair, any additional collateral posted by the holder of a related Serviced B Note under the related Intercreditor Agreement so as to enable such holder to remain the Loan-Specific Directing Holder with respect to such A/B Whole Loan or Loan Pair, as and to the extent provided for in the related Intercreditor Agreement.
“TIA” means the Trust Indenture Act of 1939.
“TIA Applicability Determination” shall have the meaning set forth in Section 14.20 of this Agreement.
“Title Insurance Policy” means a title insurance policy maintained with respect to a Mortgage Loan issued on the date of origination of the related Mortgage Loan.
“TKG 3 Retail Portfolio Companion Loan” means the promissory notes designated “Note A-1” and “Note A-4” that are not included in the Trust and are secured on a pari passu basis with the TKG 3 Retail Portfolio Mortgage Loan to the extent set forth in the TKG 3 Retail Portfolio Intercreditor Agreement. The TKG 3 Retail Portfolio Companion Loan is not a “Mortgage Loan.” Prior to the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Companion Loan shall be a “Serviced Companion Loan.” On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Companion Loan shall be a “Non-Serviced Companion Loan.”
“TKG 3 Retail Portfolio Companion Loan Securitization Date” means the date on which the TKG 3 Retail Portfolio Companion Loan is included in a securitization trust; provided, that the holder of the TKG 3 Retail Portfolio Companion Loan provides each of the Master Servicer, the Special Servicer and the Trustee (in each case only to the extent such party will not also be a party to the related Other Securitization) with notice in accordance with the terms of the TKG 3 Retail Portfolio Intercreditor Agreement that the TKG 3 Retail Portfolio Companion Loan is to be included in such Other Securitization.
“TKG 3 Retail Portfolio Directing Holder” means the “Controlling Note Holder” or any analogous concept under the TKG 3 Retail Portfolio Intercreditor Agreement.
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“TKG 3 Retail Portfolio Intercreditor Agreement” means the intercreditor, co-lender or comparable agreement between the initial holders of the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan.
“TKG 3 Retail Portfolio Loan Pair” means, collectively, the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan. On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan, collectively, shall be a “Non-Serviced Loan Combination.”
“TKG 3 Retail Portfolio Mortgage” means the Mortgage securing the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan.
“TKG 3 Retail Portfolio Mortgage Loan” means the Mortgage Loan evidenced by the promissory notes designated as “Note A-2” and “Note A-3” and identified as “TKG 3 Retail Portfolio” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the TKG 3 Retail Portfolio Companion Loan to the extent set forth in the TKG 3 Retail Portfolio Intercreditor Agreement. Prior to the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan shall be a “Serviced Pari Passu Mortgage Loan.” On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan shall be a “Non-Serviced Mortgage Loan.”
“Transfer” means any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.
“Transferee” means any Person who is acquiring by Transfer any Ownership Interest in a Certificate.
“Transferor” means any Person who is disposing by Transfer any Ownership Interest in a Certificate.
“Trust” means the trust created pursuant to this Agreement, the assets of which (the “Trust Fund”) consist of all the assets of REMIC I (including the Mortgage Loans (other than Excess Interest), such amounts related thereto as shall from time to time be held in the Collection Account, the Distribution Account, the Reserve Accounts, the Insurance Policies, any REO Properties or beneficial interests therein and other items referred to in Section 2.1(a) hereof); REMIC II; REMIC III; and the Excess Interest Sub-account and any Excess Interest on the Mortgage Loans. The Trust shall not include any Non-Serviced Companion Loan, any B Note, any interest of the holders of a B Note, any A/B Whole Loan Custodial Account, any Serviced Companion Loan, any interest of the holders of a Serviced Companion Loan or any Serviced Companion Loan Custodial Account. For the avoidance of doubt, no BANA Lender Successor Borrower Right, CIBC Lender Successor Borrower Right, SMF III Lender Successor Borrower Right or MSMCH Seller Defeasance Rights and Obligations is an asset of the Trust.
“Trust Advisor” means Pentalpha Surveillance LLC, or its successor in interest, or any successor Trust Advisor appointed as herein provided.
“Trust Advisor Annual Report” has the meaning set forth in Section 10.5(a)(iv).
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“Trust Advisor Consulting Fee” means a fee for each Major Decision as to which the Trust Advisor has consulting rights equal to $10,000 with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or related A/B Whole Loan or Loan Pair, as applicable, or such lesser amount as the related Mortgagor agrees to pay, payable pursuant to Section 5.2(a)(iv) of this Agreement; provided, that the aggregate amount of such Trust Advisor Consulting Fees with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or related A/B Whole Loan or Loan Pair, as applicable, may not exceed $10,000 in any calendar year; provided, further, that no such fee shall be payable unless paid by the related Mortgagor. The Trust Advisor may in its sole discretion reduce the Trust Advisor Consulting Fee with respect to any Major Decision. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Trust Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard; provided, that the Master Servicer or the Special Servicer, as applicable, shall consult with the Trust Advisor prior to any such waiver or reduction. No Trust Advisor Consulting Fee shall be payable with respect to any B Note, any Non-Serviced Loan Combination or the TKG 3 Retail Portfolio Loan Pair.
“Trust Advisor Expense Interest Shortfall” means, with respect to the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest and the Class D Certificates for any Distribution Date, the aggregate amount of Trust Advisor Expenses allocated to such Class or EC REMIC III Regular Interest on any prior Distribution Date (including as a payment to a more senior Class of Certificates or EC REMIC III Regular Interest in respect of interest shortfalls created by previously allocated Trust Advisor Expenses), to the extent not previously reimbursed to such Class or EC REMIC III Regular Interest pursuant to Section 6.5(a), 6.5(c) and/or Section 6.11(c).
“Trust Advisor Expenses” means, with respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or expenses payable to the Trust Advisor pursuant to this Agreement (other than the Trust Advisor Fee and other than any such indemnification amounts and expenses payable out of the TA Unused Fees Reserve Account and/or Actual Recoveries of Trust Advisor Expenses); provided that any increase in the Trust Advisor Fee that is payable out of the assets of the Trust (to the extent that such increase arises out of an increase in the per annum rate at which, or any other change to the manner in which, the Trust Advisor Fee is calculated) shall constitute a Trust Advisor Expense if such increase is effected without the consent of the Holders of Certificates representing 66-2/3% of the Voting Rights allocable to the Controlling Class.
“Trust Advisor Fee” means, with respect to each Mortgage Loan (other than the TKG 3 Retail Portfolio Mortgage Loan and any Non-Serviced Mortgage Loan), including if such Mortgage Loan becomes an REO Mortgage Loan, for any related Mortgage Loan Accrual Period, an amount accrued at the applicable Trust Advisor Fee Rate during such related Mortgage Loan Accrual Period on the same principal balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan (or REO Mortgage Loan) during such Mortgage Loan Accrual Period, and prorated for partial periods. Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Trust Advisor under this Agreement.
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“Trust Advisor Fee Rate” means 0.00125% per annum, with respect to each Mortgage Loan (other than the TKG 3 Retail Portfolio Mortgage Loan and any Non-Serviced Mortgage Loan) and any successor REO Mortgage Loan.
“Trust Advisor Standard” means the performance by the Trust Advisor of any of its obligations under this Agreement solely on behalf of the Trust in the best interest of, and for the benefit of, the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and not any particular Class of Certificateholders, as determined by the Trust Advisor in the exercise of its good faith and reasonable judgment.
“Trust Advisor Termination Event” has the meaning set forth in Section 10.12(a).
“Trust Fund” has the meaning set forth in the definition of “Trust”.
“Trust Mortgage File” means the mortgage documents listed in the definition of “Mortgage File” hereof pertaining to a particular Mortgage Loan (and, if applicable, the related Serviced Companion Loan and the related Serviced B Note) and any additional documents required to be added to the Mortgage File pursuant to this Agreement; provided that whenever the term “Trust Mortgage File” is used to refer to documents actually received by the Custodian (on behalf of the Trustee), such terms shall not be deemed to include such documents required to be included therein unless they are actually so received.
“Trust-Related Litigation” has the meaning set forth in Section 9.34(a).
“Trustee” means Wilmington Trust, National Association, as trustee, or its successor-in-interest, or if any successor trustee or any co-trustee shall be appointed as herein provided, then “Trustee” shall also mean such successor trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section 7.9 hereof), as the case may be.
“Trustee Fee” means the portion of the Certificate Administrator Fee payable to the Trustee in an amount agreed to between the Trustee and the Certificate Administrator.
“Trustee Indemnification Agreement” means that certain indemnification agreement, dated the Pricing Date, between the Trustee, the Depositor, the Initial Purchasers and the Underwriters, which agreement may be the same agreement as the Certificate Administrator Indemnification Agreement, if the Certificate Administrator and the Trustee are the same entity.
“Unallocable Modification Fee” means, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair as to which a Modification Fee is collected, the lesser of (i) such Modification Fee, and (ii) 0.75% of the Unpaid Principal Balance of such Mortgage Loan, A/B Whole Loan or Loan Pair immediately following the related restructuring, modification, extension, waiver or amendment in connection with which such Modification Fee was collected.
“Underwriter” means each of Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, CIBC World Markets Corp. and Drexel Hamilton, LLC, and, in each such case, its respective successor in interest.
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“United States Tax Person” means a citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, an estate whose income is subject to United States federal income tax regardless of the source of its income, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as United States Tax Persons). A person not described in the immediately preceding sentence shall nevertheless be treated as a United States Tax Person if (i) in the hands of such person the income from a Class R Certificate is effectively connected with the conduct of a trade or business within the United States and such person has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or other prescribed form or (ii) if in connection with the proposed transfer of a Class R Certificate, the transferor provides an opinion of counsel to the Certificate Registrar to the effect that such transfer will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.
“Unliquidated Advance” means any Advance previously made by a party hereto that has been previously reimbursed to that party by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan or REO Property in respect of which the Advance was made.
“Unpaid Interest” means: (a) with respect to any REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest for any Distribution Date subsequent to the initial Distribution Date, the portion of Distributable Interest for such REMIC I Regular Interest, REMIC II Regular Interest or Class X REMIC III Regular Interest, as the case may be, remaining unpaid as the close of business on the preceding Distribution Date; and (b) with respect to any Class of REMIC III Regular Certificates or EC REMIC III Regular Interest, the portion of Distributable Certificate Interest for such Class or EC REMIC III Regular Interest remaining unpaid as of the close of business on the preceding Distribution Date. For avoidance of doubt, “Unpaid Interest” shall not include any reductions in Distributable Certificate Interest in respect of the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest or the Class D Certificates as a result of the allocation of Trust Advisor Expenses, except to the extent that there are Actual Recoveries of Trust Advisor Expenses allocated to such Class pursuant to Section 6.11(c) in respect of such reductions in Distributable Certificate Interest.
“Unpaid Principal Balance” means, with respect to any Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note (including a Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note that relates to an REO Property), as of any date of determination, an amount equal to the Cut-Off Date Principal Balance of such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note (or, in the case of a Qualifying Substitute Mortgage Loan, the unpaid principal balance thereof outstanding as of the date of substitution after taking into account all principal and interest payments made or due during or prior to the month of substitution), reduced (to not less than zero) by (i) any payments or other collections of amounts allocable to principal with respect
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to such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note that have been collected or received on or prior to such date of determination, other than any Scheduled Payments due subsequent to such date of determination, and (ii) any Realized Principal Loss (or the equivalent) incurred in respect of such Mortgage Loan, Serviced Companion Loan, Non-Serviced Companion Loan or B Note.
“US StorageMart Portfolio B Note” means, collectively, the promissory notes designated as “Note A-2A” and “Note A-2B” that are generally subordinate in right of payment to the US StorageMart Portfolio Mortgage Loan and the US StorageMart Portfolio Non-Serviced Companion Loan to the extent provided in the US StorageMart Portfolio Intercreditor Agreement. The US StorageMart Portfolio B Note is not a “Mortgage Loan” and is not included in the Trust.
“US StorageMart Portfolio Directing Holder” means the “Controlling Note Holder” or any analogous concept under the US StorageMart Portfolio Intercreditor Agreement.
“US StorageMart Portfolio Intercreditor Agreement” means the intercreditor, co-lender or comparable agreements between the initial holders of the promissory notes comprising the US StorageMart Portfolio Non-Serviced Loan Combination.
“US StorageMart Portfolio Mortgage” means the Mortgage securing the US StorageMart Portfolio Mortgage Loan, the US StorageMart Portfolio Non-Serviced Companion Loan and the US StorageMart Portfolio B Note.
“US StorageMart Portfolio Mortgage Loan” means the Mortgage Loan evidenced by the promissory note designated as “Note A-1F” and identified as “US StorageMart Portfolio” on the Mortgage Loan Schedule, and that is pari passu in right of payment with the US StorageMart Portfolio Non-Serviced Companion Loan to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement and that is, together with the US StorageMart Portfolio Non-Serviced Companion Loan, generally senior in right of payment to the US StorageMart Portfolio B Note to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement. The US StorageMart Portfolio Mortgage Loan is a “Mortgage Loan.”
“US StorageMart Portfolio Non-Serviced Companion Loan” means, collectively, the promissory notes designated as “Note A-1A,” “Note A-1B,” “Note A-1C,” “Note A-1D” and “Note A-1E” that are not included in the Trust and that are pari passu in right of payment with the US StorageMart Portfolio Mortgage Loan to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement and that are, together with the US StorageMart Portfolio Mortgage Loan, generally senior in right of payment to the US StorageMart Portfolio B Note to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement. The US StorageMart Portfolio Non-Serviced Companion Loan is not a “Mortgage Loan.”
“US StorageMart Portfolio Non-Serviced Loan Combination” means, collectively, the US StorageMart Portfolio Mortgage Loan, the US StorageMart Portfolio Non-Serviced Companion Loan and the US StorageMart Portfolio B Note.
“Voting Rights” means the portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates. At all times during the term of this Agreement, the percentage of the Voting Rights assigned to each Class shall be: (a) in the case
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of the Class V and Class R Certificates, 0%; (b) in the case of any Class of Class X Certificates, a percentage equal to the product of (i) 1%, multiplied by (ii) a fraction, the numerator of which is the Notional Amount of such Class and the denominator of which is the aggregate of the Notional Amounts of all Classes of the Class X Certificates; and (c) in the case of any Class of Principal Balance Certificates, a percentage equal to the product of (i) 99% multiplied by (ii) a fraction, the numerator of which is equal to the Aggregate Certificate Balance of such Class and the denominator of which is equal to the Aggregate Certificate Balance of all Classes of Principal Balance Certificates; provided that, (i) if the vote relates to the termination of the Special Servicer pursuant to Section 9.30 or the Trust Advisor pursuant to Section 10.12, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates pursuant to clause (c) of this definition shall be based on the Aggregate Certificate Balance of each Class of Principal Balance Certificates as notionally reduced by any Appraisal Reductions allocated to such Class and (ii) the Class A-S Certificates and the Class A-S-PST Component shall be considered as if they together constitute a single “Class”, the Class B Certificates and the Class B-PST Component shall be considered as if they together constitute a single “Class”, the Class C Certificates and the Class C-PST Component shall be considered as if they together constitute as single “Class,” and the Holders of the Class PST Certificates shall have the Voting Rights so allocated to the Class PST Components and no other Voting Rights. The Voting Rights of any Class of Certificates shall be allocated among Holders of Certificates of such Class in proportion to their respective Percentage Interests.
“Weighted Average REMIC I Net Mortgage Rate” means, with respect to any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of their respective REMIC I Principal Amounts as of the close of business on the preceding Distribution Date.
“WHFIT” means a “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
“WHFIT Regulations” means Treasury Regulations section 1.671-5, as amended.
“WHMT” means a “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(23) or successor provisions.
“Workout-Delayed Reimbursement Amount” has the meaning set forth in subsection (II)(i) of Section 5.2(a).
“Workout Fee” means a fee payable with respect to any Rehabilitated Mortgage Loan, equal to the lesser of (1) $1,000,000 in the aggregate with respect to any particular workout of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is a Specially Serviced Mortgage Loan and (2) the product of (x) 1.0% and (y) the amount of each collection of interest (other than default interest and any Excess Interest) and principal received (including any Condemnation Proceeds or Insurance Proceeds received and applied as a collection of such interest and principal) on such Mortgage Loan (including, for this purpose, any related Serviced Companion Loan or Serviced B Note, as applicable), for so long as it remains a Rehabilitated Mortgage Loan; provided, that the Workout Fee with respect to any Rehabilitated Mortgage Loan shall be reduced by the amount of any Excess Modification Fees actually received by the
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Special Servicer as additional servicing compensation (i) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior eighteen (18) months in connection with each modification, restructure, extension, waiver or amendment that constituted a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Specially Serviced Mortgage Loan and (ii) with respect to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, at any time within the prior nine (9) months in connection with each modification, restructure, extension, waiver or amendment that constitutes a modification of the related Mortgage Loan, Loan Pair or A/B Whole Loan while the Mortgage Loan or the related Serviced Companion Loan or Serviced B Note, as applicable, was a Non-Specially Serviced Mortgage Loan, but, in each case, only to the extent those Excess Modification Fees have not previously been deducted from a Workout Fee or Liquidation Fee. Notwithstanding the foregoing, if a Mortgage Loan or Serviced Companion Loan becomes a Specially Serviced Mortgage Loan only because of an event described in clause (i) of the definition of “Servicing Transfer Event” as a result of payment default on the related maturity date and the related collection of principal and interest is received within three (3) months following the related maturity date as a result of the related Mortgage Loan or Serviced Companion Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Workout Fee out of the proceeds received in connection with such workout if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Mortgagor and retain (x) a workout fee, (y) such other fees as are provided for in the related Mortgage Loan documents and (z) other appropriate fees in connection with such workout.
Section 1.2 Calculations Respecting Mortgage Loans.
(a) Calculations required to be made by the Certificate Administrator pursuant to this Agreement with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note shall be made based upon current information as to the terms of such Mortgage Loan, Serviced Companion Loan and Serviced B Note and reports of payments received from the Master Servicer on such Mortgage Loan, Serviced Companion Loan and Serviced B Note and payments to be made to the Certificate Administrator as supplied to the Certificate Administrator by the Master Servicer. The Certificate Administrator shall not be required to recompute, verify or recalculate the information supplied to it by the Master Servicer and may conclusively rely upon such information in making such calculations. If, however, a Responsible Officer of the Certificate Administrator has actual knowledge of an error in the calculations, the Certificate Administrator shall inform the Master Servicer of such error.
(b) All amounts collected by or on behalf of the Trust in respect of any Mortgage Loan (other than an REO Mortgage Loan) in the form of payments from the related Mortgagor, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (exclusive, if applicable, in the case of an A/B Whole Loan or Loan Pair, of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be allocated to amounts due and owing thereunder (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan documents and Intercreditor Agreement; provided, in the absence of such express provisions or if and to the extent that such terms authorize the
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mortgagee to use its discretion and in any event for purposes of calculating distributions hereunder after an event of default under the related Mortgage Loan, all such amounts collected (exclusive, if applicable, in the case of an A/B Whole Loan or Loan Pair, of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Mortgage Loan in the following order of priority:
(i) as a recovery of any unreimbursed Advances with respect thereto and unpaid interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Expenses with respect thereto;
(ii) as a recovery of Nonrecoverable Advances with respect thereto and any interest thereon to the extent previously reimbursed or paid, as the case may be, from collections on other Mortgage Loans (including REO Mortgage Loans);
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest thereon (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest thereon at the related Mortgage Rate to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full monthly payment from the related Mortgagor, through the related Due Date), over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with Appraisal Reductions (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below on earlier dates);
(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal thereof then due and owing, including by reason of acceleration thereof following a default thereunder (or, if such Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining Unpaid Principal Balance);
(v) as a recovery of accrued and unpaid interest thereon to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with related Appraisal Reductions (to the extent that collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause (v) on earlier dates);
(vi) as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating thereto;
(vii) as a recovery of any other reserves to the extent then required to be held in escrow with respect thereto;
(viii) as a recovery of any Prepayment Premiums then due and owing thereunder;
(ix) as a recovery of any Default Interest or Late Fees then due and owing thereunder;
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(x) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing thereunder;
(xi) as a recovery of any other amounts then due and owing thereunder other than remaining unpaid principal and, if applicable, accrued and unpaid Excess Interest (if both consent fees and Trust Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Trust Advisor Consulting Fees);
(xii) as a recovery of any remaining principal thereof, to the extent of its entire remaining Unpaid Principal Balance; and
(xiii) in the case of an ARD Mortgage Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;
provided that, to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of a Mortgaged Property if, immediately following such release, the loan-to-value ratio of the related Mortgage Loan exceeds 125% (based solely on the value of real property and excluding personal property and going concern value, if any), must be allocated to reduce the principal balance of the Mortgage Loan in the manner permitted by such REMIC Provisions.
(c) Collections by or on behalf of the Trust in respect of the REO Property (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of an A/B Whole Loan or a Loan Pair, exclusive of any amounts payable to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) shall be deemed allocated for purposes of collecting amounts due under the related REO Mortgage Loan in the following order of priority:
(i) as a recovery of any unreimbursed Advances with respect thereto and unpaid interest on all Advances and, if applicable, unreimbursed and unpaid Additional Trust Expenses with respect thereto;
(ii) as a recovery of Nonrecoverable Advances with respect thereto and any interest thereon to the extent previously reimbursed or paid, as the case may be, from collections on other Mortgage Loans (including REO Mortgage Loans);
(iii) to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest thereon (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest thereon at the related Mortgage Rate to, but not including, the Due Date in the Collection Period in which such collections were received, over (B) the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with Appraisal Reductions (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below or Section 1.2(b)(v) on earlier dates);
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(iv) to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal thereof to the extent of its entire unpaid principal balance;
(v) as a recovery of accrued and unpaid interest thereon to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances therefor that have theretofore occurred under this Agreement in connection with related Appraisal Reductions (to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) or Section 1.2(b)(v) on earlier dates);
(vi) as a recovery of any Prepayment Premiums then due and owing thereunder;
(vii) as a recovery of any Default Interest or Late Fees then due and owing thereunder;
(viii) as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing thereunder;
(ix) as a recovery of any other amounts then due and owing thereunder other than, if applicable, accrued and unpaid Excess Interest (if both consent fees and Trust Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Trust Advisor Consulting Fees); and
(x) in the case of an REO Mortgage Loan that is an ARD Mortgage Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest.
(d) The applications of amounts received in respect of any Mortgage Loan pursuant to subsection (b) of this Section 1.2 shall be determined by the Master Servicer in accordance with the Servicing Standard. The applications of amounts received in respect of any REO Mortgage Loan or any REO Property pursuant to subsection (c) of this Section 1.2 shall be determined by the Special Servicer in accordance with the Servicing Standard.
(e) All net present value calculations and determinations made hereunder with respect to the Mortgage Loans or a Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made using the Calculation Rate.
Section 1.3 Calculations Respecting Accrued Interest. Accrued interest on any Certificate shall be calculated on a 30/360 Basis. Pass-Through Rates shall be carried out to eight (8) decimal places, rounded if necessary. All dollar amounts calculated hereunder shall be rounded to the nearest penny.
Section 1.4 Interpretation.
(a) Whenever the Agreement refers to a Distribution Date and a “related” Collection Period, Determination Date, Distribution Date Statement, Due Date, Interest Accrual Period, Master Servicer Remittance Date, Record Date, Report Date or Special Servicer Remittance Date, such reference shall be to the Collection Period, Determination Date,
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Distribution Date Statement, Due Date, Interest Accrual Period, Master Servicer Remittance Date, Record Date, Report Date or Special Servicer Remittance Date, as applicable, immediately preceding (or, in the case of a period, most recently ended prior to) such Distribution Date.
(b) As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.1 shall have the respective meanings given to them under generally accepted accounting principles or regulatory accounting principles, as applicable.
(c) The words “hereof,” “herein” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this agreement as a whole and not to any particular provision of this Agreement, and references to Sections, Schedules and Exhibits contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified.
(d) Whenever a term is defined herein, the definition ascribed to such term shall be equally applicable to both the singular and plural forms of such term and to masculine, feminine and neuter genders of such term.
(e) References herein to “Articles”, “Sections”, “Subsections”, “Paragraphs” and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement.
(f) A reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions.
(g) The terms “include”, includes” or “including” shall mean without limitation by reason of enumeration.
(h) This Agreement is the result of arm’s-length negotiations between the parties and has been reviewed by each party hereto and its counsel. Each party agrees that any ambiguity in this Agreement shall not be interpreted against the party drafting the particular clause which is in question.
Section 1.5 ARD Loans. Notwithstanding any provision of this Agreement:
(a) With respect to any ARD Loans, the Excess Interest accruing as a result of the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the principal due on the Anticipated Repayment Date as specifically provided for in the related Mortgage Note shall not be taken into account for purposes of the definitions of “Appraisal Reduction,” “Assumed Scheduled Payment,” “Mortgage Rate,” “Prepayment Premium,” “Prepayment Interest Shortfall,” “Prepayment Interest Excess,” “Purchase Price” and “Realized Loss.”
(b) Excess Interest on the ARD Mortgage Loans shall constitute an asset of the Trust but not an asset of any REMIC Pool.
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(c) Neither the Master Servicer nor the Special Servicer shall take any enforcement action with respect to the payment of Excess Interest on any Mortgage Loan unless the taking of such action is consistent with the Servicing Standard and all other amounts due under such Mortgage Loan have been paid, and, in the good faith and reasonable judgment of the Master Servicer and the Special Servicer, as the case may be, the Liquidation Proceeds expected to be recovered in connection with such enforcement action will cover the anticipated costs of such enforcement action and, if applicable, any associated interest thereon.
(d) Neither Liquidation Fees nor Workout Fees shall be deemed to be earned on Excess Interest, nor shall Excess Interest be included as part of any servicing compensation.
(e) With respect to an ARD Mortgage Loan, after its Anticipated Repayment Date, the Master Servicer or the Special Servicer, as the case may be, shall be permitted, in its discretion, to waive in accordance with and subject to Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related Maturity Date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all payments required by the Mortgage Loan in connection with such prepayment except for all or a portion of accrued Excess Interest, provided that the Master Servicer’s or the Special Servicer’s determination to waive the right to such accrued Excess Interest is in accordance with the Servicing Standard and with Section 8.18 and Section 9.5 hereof. The Master Servicer or the Special Servicer, as the case may be, will have no liability to the Trust, the Certificateholders or any other person so long as such determination is based on such criteria.
(f) With respect to an ARD Mortgage Loan, the Master Servicer or Special Servicer, as the case may be, may (but, consistent with the Servicing Standard, shall not be obligated to) take action to enforce the Trust’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents.
Section 1.6 Certain Matters with Respect to Loan Pairs, A/B Whole Loans and Non-Serviced Loan Combinations.
(a) The parties hereto acknowledge that, pursuant to the related Intercreditor Agreement, if a Serviced Pari Passu Mortgage Loan or A Note, as applicable, is no longer part of the Trust or is no longer serviced pursuant to the terms of this Agreement, the holder of such Serviced Pari Passu Mortgage Loan or A Note, as applicable, shall negotiate one or more new servicing agreements with the Master Servicer (or, if applicable, a Surviving Sub-Servicer) and the Special Servicer, provided that, prior to entering into any such new servicing agreement, the new holder of such Serviced Pari Passu Mortgage Loan or A Note, as applicable, shall provide to the holder of the related Serviced Companion Loan and/or Serviced B Note copies of written communications provided to each NRSRO then rating any securitization relating to such Serviced Companion Loan and/or Serviced B Note notifying such NRSROs of such new servicing agreement; provided, that prior to such time the Master Servicer (or, if applicable, a Surviving Sub-Servicer) and the Special Servicer shall continue to service the related Loan Pair and/or A/B Whole Loan to the extent provided in the related Intercreditor Agreement. The parties hereto further acknowledge that if a Serviced Pari Passu Mortgage Loan or A Note, as applicable, is no longer part of the Trust or is no longer serviced pursuant to the terms of this
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Agreement, the Master Servicer shall have no further obligation to make P&I Advances with respect to such Serviced Pari Passu Mortgage Loan or A Note, as applicable.
(b) For the avoidance of doubt and subject to subsection (a) above, the parties acknowledge that the rights and duties of each of the Master Servicer and the Special Servicer under Article VIII and Article IX and the obligation of the Master Servicer to make Advances, insofar as such rights, duties and obligations relate to any A/B Whole Loan (including both the related A Note and the related Serviced B Note) or Loan Pair, shall terminate upon the earliest to occur of the following with respect to such A/B Whole Loan or Loan Pair, as the case may be: (i) any repurchase of or substitution for the related A Note or Serviced Pari Passu Mortgage Loan by the applicable Seller pursuant to Section 2.3; (ii) any purchase of the related A Note or Serviced Pari Passu Loan by the owner of the related Serviced B Note or Serviced Companion Loan pursuant to the terms of the related Intercreditor Agreement; and (iii) any payment in full of any and all amounts due (or deemed due) under the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO Mortgage Loan) including amounts to which the holder of such A Note or Serviced Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement; provided, that this statement shall not limit (A) the duty of the Master Servicer or the Special Servicer to deliver or make available the reports otherwise required of it hereunder with respect to the Collection Period in which such event occurs or (B) the rights of the Master Servicer or the Special Servicer that may otherwise accrue or arise in connection with the performance of its duties hereunder with respect to such A/B Whole Loan or Loan Pair prior to the date on which such event occurs.
(c) In connection with any purchase described in clause (ii) of Section 1.6(b) or an event described in clause (iii) of Section 1.6(b), the Custodian, the Master Servicer and the Special Servicer shall each tender to (in the case of a purchase under such clause (ii)) the related purchaser (provided that the related purchaser shall have paid the full amount of the applicable purchase price) or (in the case of such clause (iii)) to the holder of the related Serviced Companion Loan or Serviced B Note (if then still outstanding), after delivery to them of a receipt executed by such purchaser or holder, all portions of the Mortgage File and other documents pertaining to such Loan Pair or A/B Whole Loan, as applicable, possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to such purchaser or holder (or the designee of such purchaser or holder) in the same manner, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which documents were previously assigned to the Trustee by the related Seller, but in any event, without recourse, representation or warranty; provided that such tender by such party shall be conditioned upon its receipt from the Master Servicer of a Request for Release. The Master Servicer shall, and is also hereby authorized and empowered by the Trustee to, convey to such purchaser or such holder any deposits then held in an Escrow Account relating to the applicable A/B Whole Loan or Loan Pair. If a Serviced Pari Passu Mortgage Loan and the related Serviced Companion Loan or an A Note and the related Serviced B Note are then REO Loans, then the Special Servicer shall, and is also hereby authorized and empowered by the Trustee to, convey to such purchaser or such holder, in each case, to the extent not needed to pay or reimburse the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator or the Trustee in accordance with this Agreement, deposits then held in the REO Account insofar as they relate to the related REO Property.
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(d) If an expense under this Agreement relates, in the reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as applicable, primarily to the administration of the Trust or any REMIC or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or expense or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against the holder of any Serviced Companion Loan or Serviced B Note and such holder shall not suffer any adverse consequences as a result of the payment of such expense.
(e) With respect to the 32 Old Slip Fee Loan Pair, the parties hereto acknowledge and agree that the 32 Old Slip Fee Mortgage Loan is pari passu in right of payment with the 32 Old Slip Fee Serviced Companion Loan to the extent set forth in the 32 Old Slip Fee Intercreditor Agreement. At no time shall any holder of the 32 Old Slip Fee Serviced Companion Loan be the Loan-Specific Directing Holder for the 32 Old Slip Fee Loan Pair; provided, that, the holder of the 32 Old Slip Fee Serviced Companion Loan shall have certain limited non-binding consultation rights (and the Master Servicer or the Special Servicer, as appropriate in light of the circumstances, shall use reasonable efforts to consult with such holder to the extent such holder requests consultation) as and to the extent set forth in the 32 Old Slip Fee Intercreditor Agreement.
(f) With respect to the Aviare Place Apartments Loan Pair, the parties hereto acknowledge and agree that the Aviare Place Apartments Mortgage Loan is pari passu in right of payment with the Aviare Place Apartments Serviced Companion Loan to the extent set forth in the Aviare Place Apartments Intercreditor Agreement. At no time shall any holder of the Aviare Place Apartments Serviced Companion Loan be the Loan-Specific Directing Holder for the Aviare Place Apartments Loan Pair; provided, that, the holder of the Aviare Place Apartments Serviced Companion Loan shall have certain limited non-binding consultation rights (and the Master Servicer or the Special Servicer, as appropriate in light of the circumstances, shall use reasonable efforts to consult with such holder to the extent such holder requests consultation) as and to the extent set forth in the Aviare Place Apartments Intercreditor Agreement.
(g) The parties hereto acknowledge and agree that the TKG 3 Retail Portfolio Mortgage Loan is pari passu in right of payment with the TKG 3 Retail Portfolio Companion Loan to the extent set forth in the TKG 3 Retail Portfolio Intercreditor Agreement. The TKG 3 Retail Portfolio Directing Holder shall at all times have consent rights and the right to direct the Master Servicer and Special Servicer (or, on and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer) with respect to the administration of the TKG 3 Retail Portfolio Loan Pair as and to the extent set forth in the TKG 3 Retail Portfolio Intercreditor Agreement; provided, that, on and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) shall have certain limited non-binding consultation rights (and the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the
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extent the Controlling Class Representative requests consultation in accordance with the terms of the TKG 3 Retail Portfolio Intercreditor Agreement) as and to the extent set forth in the TKG 3 Retail Portfolio Intercreditor Agreement.
In connection with the securitization of the TKG 3 Retail Portfolio Companion Loan while it is a Serviced Companion Loan, upon the request of (and at the expense of) the related Serviced Companion Loan holder, each of the Master Servicer and the Special Servicer, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Loan holder in attempting to cause the related Mortgagor to provide information relating to the TKG 3 Retail Portfolio Loan Pair and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to an Other Securitization that will include such Serviced Companion Loan.
On and after the TKG 3 Retail Portfolio Companion Loan Securitization Date, the TKG 3 Retail Portfolio Mortgage Loan and the TKG 3 Retail Portfolio Companion Loan, collectively, shall be a “Non-Serviced Loan Combination,” the TKG 3 Retail Portfolio Companion Loan shall be a “Non-Serviced Companion Loan,” and the TKG 3 Retail Portfolio Mortgage Loan shall be a “Non-Serviced Mortgage Loan.”
On the TKG 3 Retail Portfolio Companion Loan Securitization Date (i) the Custodian shall, upon receipt of a Request for Release, transfer the Mortgage File (other than the promissory note(s) evidencing the TKG 3 Retail Portfolio Mortgage Loan, and any accompanying allonges, the originals of which shall be retained by the Custodian) for the TKG 3 Retail Portfolio Loan Pair to the applicable Other Custodian, retain a copy of each such transferred document and otherwise take all actions reasonably necessary for the transfer of custody of such Mortgage Loan documents to such Other Custodian, (ii) upon receipt of written request and proposed assignment documentation, the Master Servicer (pursuant to the power of attorney executed by the Trustee pursuant to Section 2.3(b)) shall execute assignment documentation reasonably acceptable to it and reasonably necessary to assign to the Other Trustee the applicable Mortgage Loan documents related to the TKG 3 Retail Portfolio Loan Pair and (iii) upon receipt of written request, the Master Servicer shall transfer the Servicer Mortgage File for, and otherwise take all actions reasonably necessary for the transfer of the servicing of, the TKG 3 Retail Portfolio Loan Pair to the Other Master Servicer.
(h) With respect to the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination, the parties hereto acknowledge and agree that (i) the Hilton Garden Inn W 54th Street Mortgage Loan is pari passu in right of payment with the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement and (ii) the Hilton Garden Inn W 54th Street B Note is generally subordinate in right of payment to the Hilton Garden Inn W 54th Street Mortgage Loan and the Hilton Garden Inn W 54th Street Non-Serviced Companion Loan to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement. The Hilton Garden Inn W 54th Street Directing Holder shall at all times have consent rights and the right to direct the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer with respect to the administration of the Hilton Garden Inn W 54th Street Non-Serviced Loan Combination as and to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement; provided, that, during any Subordinate Control Period and any Collective
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Consultation Period, the Controlling Class Representative shall have certain limited non-binding consultation rights (and the Non-Serviced Mortgage Loan Master Servicer or the Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of the Hilton Garden Inn W 54th Street Intercreditor Agreement) as and to the extent set forth in the Hilton Garden Inn W 54th Street Intercreditor Agreement.
(i) With respect to the US StorageMart Portfolio Non-Serviced Loan Combination, the parties hereto acknowledge and agree that (i) the US StorageMart Portfolio Mortgage Loan is pari passu in right of payment with the US StorageMart Portfolio Non-Serviced Companion Loan to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement and (ii) the US StorageMart Portfolio B Note is generally subordinate in right of payment to the US StorageMart Portfolio Mortgage Loan and the US StorageMart Portfolio Non-Serviced Companion Loan to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement. The US StorageMart Portfolio Directing Holder shall at all times have consent rights and the right to direct the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer with respect to the administration of the US StorageMart Portfolio Non-Serviced Loan Combination as and to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement; provided, that, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have certain limited non-binding consultation rights (and the Non-Serviced Mortgage Loan Master Servicer or the Non-Serviced Mortgage Loan Special Servicer, as appropriate in light of the circumstances, shall be required to consult with the Controlling Class Representative to the extent the Controlling Class Representative requests consultation in accordance with the terms of the US StorageMart Portfolio Intercreditor Agreement) as and to the extent set forth in the US StorageMart Portfolio Intercreditor Agreement.
(j) Any Other Depositor, Other Master Servicer, Other Special Servicer, Other Certificate Administrator, Other Trustee and Other Trust Advisor (and any director, officer, employee or agent of any of the foregoing) (collectively, the “Other Indemnified Parties”) shall be indemnified by the Trust against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the related Non-Serviced Mortgage Loan under the related Other Companion Loan Pooling and Servicing Agreement, this Agreement or the related Intercreditor Agreement (or, with respect to the related Other Trust Advisor, incurred in connection with the provision of services for such Non-Serviced Mortgage Loan) (but excluding any such losses allocable to the related Non-Serviced Companion Loans) to the extent of its pro rata share of such indemnified items; provided, that such indemnification will not extend to any losses, liabilities, costs or expenses: (i) specifically required to be borne by such party, without right of reimbursement, pursuant to the terms of the related Other Companion Loan Pooling and Servicing Agreement; (ii) incurred in connection with any legal action or claim against such party resulting from any breach of a representation or warranty made by such person under the related Other Companion Loan Pooling and Servicing Agreement; or (iii) incurred in connection with any legal action or claim against such party resulting from any willful misfeasance, bad faith or negligence in the performance of such person’s obligations and
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duties under the related Other Companion Loan Pooling and Servicing Agreement or the related Intercreditor Agreement or resulting from negligent disregard of such obligations and duties.
(k) Promptly following the Closing Date, with respect to any Loan Pair or Non-Serviced Loan Combination, the Master Servicer shall deliver to any holder of a related Serviced Companion Loan or (solely if a Non-Serviced Companion Loan is the “Lead Securitization Note” (or similar term, in each case as defined in the related Intercreditor Agreement)) a related Non-Serviced Companion Loan, as applicable (or Other Master Servicer, Other Special Servicer and Other Trustee on its behalf), written notice of the securitization of the related Mortgage Loan stating that, as of the Closing Date, the Trustee is the holder of the applicable Mortgage Loan. Such notice shall be accompanied by the name and contact information of each of the Trustee, the Master Servicer and the Special Servicer.
(l) With respect to any Loan Pair, the Master Servicer and the Special Servicer shall provide each Other Master Servicer and Other Special Servicer that is servicing or otherwise has duties with respect to a related Serviced Companion Loan such information as is necessary to enable each such Other Master Servicer or Other Special Servicer to perform its related servicing and other duties under the related Other Companion Loan Pooling and Servicing Agreement.
(m) To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to any Intercreditor Agreement for a Loan Pair or a Non-Serviced Loan Combination are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.
Section 1.7 Rating Agency Confirmations.
(a) Notwithstanding the terms of any related Mortgage Loan documents or other provisions of this Agreement, if any action under any Mortgage Loan documents or this Agreement requires a Rating Agency Confirmation as a condition precedent to such action, if the party (the “Requesting Party”) attempting to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within ten (10) Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (i) such Requesting Party shall (without providing notice to the 17g-5 Information Provider) confirm that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again and (ii) if there is no response to either such Rating Agency Confirmation request within five (5) Business Days of such second request or such Rating Agency has responded in a manner that indicates it is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, (x) with respect to any such condition in any Mortgage Loan document requiring such Rating Agency Confirmation or any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) below), the Requesting Party (or, if the Requesting Party is the related Mortgagor, then the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans and
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REO Loans), as applicable) shall determine, in accordance with its duties under this Agreement and, in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard, whether or not such action would be in the best interests of the Certificateholders and, in the case of an A/B Whole Loan or Loan Pair, Certificateholders and any holder of any related Serviced B Note or Serviced Companion Loan (as a collective whole as if such Certificateholders and Serviced B Note or Serviced Companion Loan holder constituted a single lender), and if the Requesting Party (or, if the Requesting Party is the related Mortgagor, then the Master Servicer or the Special Servicer, as applicable) determines that such action would be in the best interest of such parties, then the requirement for a Rating Agency Confirmation will be deemed not to apply, and (y) with respect to a replacement of the Master Servicer or Special Servicer, such condition shall be deemed to be satisfied (i) if Moody’s or DBRS is the non-responding Rating Agency, the non-responding Rating Agency has not cited servicing concerns of the applicable replacement as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other CMBS transaction rated by such non-responding Rating Agency and serviced by the applicable servicer prior to the time of determination or (ii) if Fitch is the non-responding Rating Agency, the applicable replacement is rated at least “CMS3” (in the case of the Master Servicer) or “CSS3” (in the case of the Special Servicer).
Promptly following the Master Servicer’s or Special Servicer’s determination to take any action discussed in this Section 1.7(a) following any requirement to obtain a Rating Agency Confirmation being considered satisfied, the Master Servicer or Special Servicer, as the case may be, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 5.7 of this Agreement.
(b) Notwithstanding anything to the contrary in this Section 1.7, for purposes of the provisions of any Mortgage Loan document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral), release or substitution of any collateral, any Rating Agency Confirmation requirement in the Mortgage Loan documents with respect to which the Master Servicer or Special Servicer would have been required to make the determination described in Section 1.7(a) shall be deemed not to apply regardless of any such determination by the Requesting Party (or, if the Requesting Party is the related Mortgagor, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Loans), as applicable); provided, that the Requesting Party (or the Master Servicer or the Special Servicer, as applicable) shall in any event review the other conditions required under the related Mortgage Loan documents with respect to such defeasance, release or substitution and confirm to its satisfaction in accordance with the Servicing Standard that such conditions (other than the requirement for a Rating Agency Confirmation) have been satisfied.
(c) For all other matters or actions not specifically discussed in Section 1.7(a) above, the applicable Requesting Party shall deliver a Rating Agency Confirmation from each Rating Agency.
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(d) Unless otherwise indicated herein, all notices and Rating Agency Communications and requests for Rating Agency Confirmations to the Rating Agencies shall be in writing and sent by first class mail, telecopy, electronic mail or overnight courier, as follows:
If
to DBRS, to:
DBRS, Inc.
333 West Wacker, Suite 1800
Chicago, Illinois 60606
Fax: (312) 332-3492
Attention: Commercial Mortgage Surveillance
Email: cmbs.surveillance@dbrs.com
If
to Fitch, to:
Fitch Ratings, Inc.
33 Whitehall Street
New York, New York 10004
Fax: (212) 635-0294
Attention: Commercial Mortgage Surveillance
Email: info.cmbs@fitchratings.com
If
to Moody’s, to:
Moody’s Investors Service, Inc.
7 World Trade Center
New York, New York 10007
Fax: (212) 553-0300
Attention: Commercial Mortgage Surveillance Group
Email: CMBSSurveillance@moodys.com
or at such other address as shall be provided in writing to the Depositor by such Rating Agency, which other address the Depositor shall promptly provide to the other parties hereto.
(e) The delivery of any notice, document, information or communication to a Rating Agency shall be subject to Section 5.7. Any Rating Agency Confirmation request made by the Master Servicer, Special Servicer, Certificate Administrator, the Custodian or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 5.7.
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ARTICLE
II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, the Depositor does hereby establish a trust designated as “Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23” and assign in trust to the Trustee, without recourse, for the benefit of the Certificateholders all the right, title and interest of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, all distributions with respect thereto payable after the Cut-Off Date, the Mortgage File and all rights, if any, of the Depositor in the Distribution Account, all REO Accounts, the Collection Account and the Reserve Accounts, (ii) the Depositor’s rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the Depositor’s rights under any Intercreditor Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan, (v) with respect to the Exchangeable Certificates, each of the EC REMIC III Regular Interests and (vi) all other assets included or to be included in REMIC I or the Grantor Trust. Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans and due after their respective Due Dates in June 2015. The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale. In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after June 1, 2015. The transfer and assignment of any Non-Serviced Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the terms and conditions of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by the execution and delivery of this Agreement, hereby agrees that such Mortgage Loans remain subject to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement and, with respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, the related Intercreditor Agreement. The transfer and assignment of any A Notes and any Serviced Pari Passu Mortgage Loans to the Trustee and the right to service such Mortgage Loans are subject to the terms of the related Intercreditor Agreements, and the Trustee, by the execution and delivery of this Agreement, hereby agrees, that such Mortgage Loans remain subject to the terms of the related Intercreditor Agreements (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and Section 8.30 hereof).
(b) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with the Custodian (on behalf of the Trustee), on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of “Mortgage File.” Each Seller is
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required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Custodian (on behalf of the Trustee) the remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein. None of the Trustee, the Certificate Administrator, any Custodian, the Master Servicer or the Special Servicer shall be liable for any failure by any Seller or the Depositor to comply with the document delivery requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b). Promptly upon receipt (but no later than ten (10) Business Days after the Closing Date), the Custodian shall deliver to the Master Servicer each original letter of credit set forth on Schedule XVI hereto, and the Master Servicer shall hold such original letters of credit on behalf of the Trustee pursuant to and in accordance with clause (xii) of the definition of “Mortgage File”. Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, the obligations of each of the applicable Sellers to deliver a Mortgage Note to the Custodian (on behalf of the Trustee), shall be limited to delivery of only the Mortgage Note held by such party to the Custodian (on behalf of the Trustee). With respect to a Joint Mortgage Loan, the obligations of the applicable Sellers to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the applicable Sellers may deliver one Mortgage File or one of any other document required to be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each of the applicable Sellers.
(c) The applicable Seller has agreed in the applicable Mortgage Loan Purchase Agreement, at the expense of such Seller as to each of its respective Mortgage Loans (other than with respect to any Non-Serviced Mortgage Loan), (i) in the case of clauses (iv) and (vi)(B) of the definition of “Mortgage File” within forty-five (45) days following the Closing Date and (ii) in the case of clause (ix)(B) of the definition of “Mortgage File” within ninety (90) days following the Closing Date, to deliver for submission for recording or filing by the Depositor, the Custodian (on behalf of the Trustee) or the agents of either, as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of “Mortgage File.” Each such assignment shall reflect that it should be returned by the public recording office to the Custodian (on behalf of the Trustee) following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the applicable Seller shall obtain therefrom a certified copy of the recorded original and forward such copy to the Custodian (on behalf of the Trustee) and the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the applicable Seller shall, pursuant to the applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be prepared a substitute therefor or cure such defect, as the case may be, and thereafter the applicable Seller shall, at its own expense (except in the case of a document or instrument that is lost by the Custodian), upon receipt thereof cause the same to be duly recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to or on behalf of the Trustee, on or before the fifth (5th) Business Day after the Closing Date, five (5) limited powers of attorney substantially in the form attached as Exhibit 4 to the Mortgage Loan Purchase Agreement in favor of the Custodian (on behalf of the Trustee) and the Special Servicer to empower the
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Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of the applicable Seller, any mortgage loan documents required to be recorded as set forth in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to or on behalf of the Trustee). The Sellers agree to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second (2nd) preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at the related Seller’s expense, after the periods set forth above; provided, the Custodian shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office. Each of the Sellers has engaged a separate third party agent other than the Custodian or the Trustee to perform the recording obligations described in this Section 2.1(c).
(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the Mortgage Loans, Serviced Companion Loans or Serviced B Notes and that are not required to be a part of a Mortgage File in accordance with the definition thereof shall be delivered to the Master Servicer, on or before the date that is forty-five (45) days following the Closing Date and shall be held by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders. To the extent delivered to the Master Servicer by the related Seller, the Servicer Mortgage File shall include, to the extent required to be (and actually) delivered to the applicable Seller pursuant to the applicable Mortgage Loan documents, copies of each item set forth in the definition of “Servicer Mortgage File” in this Agreement. Notwithstanding the foregoing, no Seller shall be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of the Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if received, shall be returned and any copies thereof destroyed). Delivery of any of the foregoing documents to a sub-servicer shall be deemed delivery to the Master Servicer and satisfy the Depositor’s obligations under this Section 2.1(d). Neither the Master Servicer nor the Special Servicer shall have any liability for the absence of any of the foregoing items from the Servicer Mortgage File if such item was not delivered by the related Seller.
Schedule XVIII attached hereto lists the Mortgaged Properties that, as of the Closing Date, are hospitality properties and that are subject to a franchise, management or similar agreement with a related comfort letter in favor of the respective Mortgage Loan Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trust or otherwise have a new comfort letter issued in the name of the Trust. The
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Mortgage Loans secured by such Mortgaged Properties are referred to herein as the “Franchise Mortgage Loans.” Each Mortgage Loan Purchase Agreement requires that the related Seller (solely in respect of the Franchise Mortgage Loans it is selling to the Depositor) or its designee shall, within 30 days of the Closing Date (or any shorter period if required by the applicable comfort letter) and with a copy to the Master Servicer, notify the related franchisor in writing that such Franchise Mortgage Loan has been transferred to the Trust and request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter). The Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).
(e) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties (and the exceptions thereto) made by the Sellers with respect to each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMCH Loans from MSMCH, the BANA Loans from BANA, the CIBC Loans from CIBC and the SMF III Loans from SMF III. The Depositor shall deliver or cause to be delivered the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as set forth in the definition of “Mortgage File”) relating to the Mortgage Loans to the Custodian (on behalf of the Trustee), endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording or filing of multiple assignment documents, BANA, MSMCH, CIBC and SMF III, as applicable, are required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages, and assignments of Assignments of Leases and assignments of UCC financing statements naming the Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the fact that such Assignments of Mortgages, assignments of Assignments of Leases (to the extent separate from the Assignments of Mortgages) and assignments of UCC financing statements shall name the Trustee, on behalf of the Certificateholders, as the assignee, the parties hereto acknowledge and agree that for all purposes the MSMCH Loans shall be deemed to have been transferred from MSMCH to the Depositor, the BANA Loans shall be deemed to have been transferred from BANA to the Depositor, the CIBC Loans shall be deemed to have been transferred from CIBC to the Depositor, and the SMF III Loans shall be deemed to have been transferred from SMF III to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the Certificateholders.
Section 2.2 Acceptance by Trustee. The Custodian (on behalf of the Trustee) hereby acknowledges receipt of a Trust Mortgage File for each Mortgage Loan and confirms that, with respect to each Mortgage Loan, all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession. Within ten (10) days of the Closing Date, the Custodian shall provide a copy of all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” to the Master
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Servicer. The Custodian will hold (i) the documents constituting a part of the Mortgage Files delivered to it or the Custodian on its behalf, (ii) the REMIC I Regular Interests, (iii) the REMIC II Regular Interests, in each case on behalf of the Trustee in trust for the use and benefit of all present and future Certificateholders and (iv) the EC REMIC III Regular Interests, in each case on behalf of the Trustee in trust for the use and benefit of all present and future Holders of the Exchangeable Certificates. To the extent that the contents of the Mortgage File for any A Note relate to a corresponding Serviced B Note, the Custodian (on the Trustee’s behalf), will also hold such Mortgage File in trust for the benefit of the holder of each related Serviced B Note; provided, that if a Serviced B Note remains outstanding following payment in full of the amounts due under the related A Notes, the Mortgage Loan documents relating to such A/B Whole Loan (exclusive of any such documents related solely to the A Notes) shall be assigned to the holder of the Serviced B Note or its designee at the expense of the holder of the Serviced B Note and delivered to such Serviced B Note holder. To the extent that the contents of the Mortgage File for any Serviced Pari Passu Mortgage Loan relate to the corresponding Serviced Companion Loan, the Trustee, or the Custodian, on the Trustee’s behalf, will also hold such Mortgage File in trust for the benefit of the holder of the related Serviced Companion Loan.
On the Closing Date in respect of the Initial Certification, and within seventy-five (75) days after the Closing Date in respect of the Final Certification, the Custodian (on the Trustee’s behalf) shall examine the Mortgage Files in its possession, and shall deliver to the Depositor, the Sellers, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative and, upon request, the holder of any Serviced Companion Loan a certification (the “Initial Certification” and the “Final Certification”, respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which (together with any related exceptions) shall be in electronic format (including Excel compatible format) (i) in the case of the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions attached thereto, to the effect that: (A) all documents listed in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of the definition of “Mortgage File”, and (ii) in the case of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions attached thereto, to the effect that: (A) all documents listed in clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” required to be included in the Mortgage File (to the extent required to be delivered pursuant to this Agreement), and with respect to all documents specified in the other clauses of the definition of “Mortgage File” to the extent known by a Responsible Officer of the Custodian (on the Trustee’s behalf) to be required pursuant to this Agreement, are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (C) based on its examination and only as to the Mortgage Note and Mortgage, the street address (excluding zip code) of the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File, and (D) each Mortgage Note has been endorsed. Notwithstanding the foregoing, the delivery of a commitment to issue a Title Insurance Policy in lieu of the delivery
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of the actual Title Insurance Policy shall not be considered a Material Document Defect with respect to any Mortgage File if such actual Title Insurance Policy is delivered to the Custodian (on the Trustee’s behalf) not later than the 180th day following the Closing Date.
Within 360 days after the Cut-Off Date, the Custodian (on the Trustee’s behalf) shall provide a confirmation of receipt of recorded assignments of Mortgage (as set forth in the definition of “Mortgage File,” with evidence of recording thereon) or otherwise provide evidence of such recordation to the Trustee, the Master Servicer, the Special Servicer, the Certificate Administrator, the 17g-5 Information Provider (who shall promptly post such confirmation to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative and each Seller. The Custodian (on behalf of the Trustee) shall use reasonable efforts to submit for recording any unrecorded assignments of Mortgage that have been delivered to it (including effecting such recordation process through or cooperating with the applicable Seller), such recordation to be at the expense of the applicable Seller; provided, that the Custodian (on the Trustee’s behalf) shall not submit for recording any such assignments if the applicable Seller produces evidence that it has sent any such assignment for recording and is awaiting its return from the applicable recording office. In giving the certifications required above, neither the Trustee nor the Custodian (on the Trustee’s behalf) shall be under any obligation or duty to inspect, review or examine any such documents, instruments, securities or other papers to determine whether they or the signatures thereon are valid, legal, genuine, enforceable, in recordable form or appropriate for their represented purposes, or that they are other than what they purport to be on their face, or to determine whether any Mortgage File should include any assumption agreement, modification agreement, consolidation agreement, extension agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty, written assurance, substitution agreement, lock box agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to the Final Certification, including exceptions resulting from the fact that the recordation and/or filing has not been completed (based solely on the absence of receipt by the Custodian (on the Trustee’s behalf) of the particular documents showing evidence of the recordation and/or filing), then the Custodian (on the Trustee’s behalf) shall continuously update such schedule of exceptions to reflect receipt of any corrected documents, additional documents or instruments or evidences of recordation and/or filing, as to each Mortgage Loan, until the earliest of the following dates: (i) the date on which all such exceptions are eliminated (any such elimination resulting from the fact that recordation and/or filing has been completed shall be based solely on receipt by the Custodian (on the Trustee’s behalf) of the particular documents showing evidence of the recordation and/or filing), (ii) the date on which all the affected Mortgage Loans are removed from the Trust and (iii) the second (2nd) anniversary of the Closing Date, and shall provide such updated schedule of exceptions (which shall be in electronic format, including Excel-compatible format) to each of the Trustee, the Depositor, each Seller (as to its respective Mortgage Loans only), the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the 17g-5 Information Provider (who shall post such updated schedule of exceptions on the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative, the holder of any Serviced Companion Loan on or about the date that is 180 days after the Closing Date and then again every ninety (90) days thereafter (until the earliest date specified above). Upon request, the Master Servicer shall provide to the Trustee and to the
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Custodian the names and addresses of each holder of a Serviced Companion Loan of which the Master Servicer has received notice in accordance with this Agreement and/or the related Intercreditor Agreement.
The Custodian or its authorized agents shall retain possession and custody of each Trust Mortgage File in accordance with and subject to the terms and conditions set forth herein.
The Custodian shall hold that portion of the Trust Fund delivered to the Custodian consisting of “instruments” (as such term is defined in Section 9-102 of the Uniform Commercial Code as in effect in Minnesota on the date hereof) in Minnesota and, except as otherwise specifically provided in this Agreement, shall not remove such instruments from Minnesota unless it receives an Opinion of Counsel (obtained and delivered at the expense of the Person requesting the removal of such instruments from Minnesota) that if the transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after such removal, the Trustee will possess a first priority perfected security interest in such instruments.
The Custodian shall not be an agent of the Trustee, and the Trustee shall have no liability for any action or omission of the Custodian hereunder.
Section 2.3 Sellers’ Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document or documents constituting a part of a Mortgage File has not been delivered as and when required, has not been properly executed, or is defective on its face or discovers or receives notice of a breach of any of the representations and warranties relating to the Mortgage Loans required to be made by a Seller regarding the characteristics of the Mortgage Loans and/or the related Mortgaged Properties as set forth in Exhibit 2 of the related Mortgage Loan Purchase Agreements, and either (i) the defect or breach, as the case may be, materially and adversely affects the interests of the holders of the Certificates in the related Mortgage Loan or (ii) both (A) the defect or breach materially and adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan (any such defect described in the preceding clause (i) or (ii), a “Material Document Defect”, and such a breach described in the preceding clause (i) or (ii), a “Material Breach”), then the party determining that such Material Document Defect or Material Breach exists shall give prompt written notice to the Depositor, the other parties hereto, the related Seller and the 17g-5 Information Provider subject to the terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any event within three (3) Business Days) upon determining (or becoming aware of another party’s determination) that any such Material Document Defect or Material Breach exists (which determination shall, absent evidence to the contrary, be presumed to be no earlier than three (3) Business Days prior to the delivery of the notice referred to below), the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to any Specially Serviced Mortgage Loan), as applicable, shall (and the Special Servicer (with respect to any Mortgage Loan) may) request that the related Seller, not later than ninety (90) days from such Seller’s receipt of the notice of such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or
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cured in all material respects within such 90-day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but the related Seller is diligently attempting to effect such correction or cure, as certified by such Seller in an Officer’s Certificate delivered to the Trustee and the Custodian, then the cure period will be extended for an additional ninety (90) days unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as set forth in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” and (y) the Material Document Defect was identified in a certification delivered to the Seller by the Custodian (on behalf of the Trustee) pursuant to Section 2.2 not less than ninety (90) days prior to the receipt by the applicable Seller of the notice of such Material Document Defect. The parties acknowledge that neither delivery of a certification or schedule of exceptions to a Seller pursuant to Section 2.2 or otherwise nor possession of such certification or schedule by the Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by the Seller or any party hereto of any Material Document Defect listed therein.
If any Material Document Defect or Material Breach that exists cannot be corrected or cured in all material respects within the above cure periods, the related Seller (and any related Seller Guarantor) is obligated under the related Mortgage Loan Purchase Agreement, not later than the last day of such permitted cure period, subject to Section 5.12 of each Mortgage Loan Purchase Agreement, to (i) repurchase the affected Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) or REO Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) from the Trust at the applicable Purchase Price in accordance with the related Mortgage Loan Purchase Agreement, or (ii) if within the three-month period commencing on the Closing Date (or prior to the second anniversary of the Closing Date if the affected Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), at the related Seller’s option, without recourse (other than the representations and warranties made with respect thereto), replace such Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) or any successor REO Mortgage Loan (or, with respect to any Joint Mortgage Loan, the related Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan) to which such defect or breach relates with a Qualifying Substitute Mortgage Loan and pay a substitution shortfall amount equal to the excess, if any, of the applicable Purchase Price for the Mortgage Loan or REO Mortgage Loan to be replaced, over the Stated Principal Balance of the Qualifying Substitute Mortgage Loan. If such Material Document Defect or Material Breach would cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code), then notwithstanding the previous sentence or the previous paragraph, the cure, repurchase or substitution must occur within eighty-five (85) days from the date the related Seller was notified of the defect or breach; provided, that in any event any such cure, repurchase or substitution must
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occur no later than eighty-five (85) days from the date of determination of the existence of a Material Document Defect or Material Breach as determined in this Section 2.3(a).
As to any Qualifying Substitute Mortgage Loan or Loans, the Master Servicer shall not execute any instrument effecting the substitution unless the related Seller has delivered to the Custodian (on the Trustee’s behalf) for such Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment of Mortgage, and such other documents and agreements as are required by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1, and the Master Servicer shall be entitled to rely on statements and certifications from the Custodian for this purpose. No substitution may be made in any calendar month after the Determination Date for such month. Monthly payments due with respect to Qualifying Substitute Mortgage Loans in the month of substitution shall not be part of the Trust and will be retained by Master Servicer and remitted by the Master Servicer to the related Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on the related Deleted Mortgage Loan for such month and thereafter the related Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such amendment the Master Servicer shall deliver or cause to be delivered such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Certificate Administrator and the Special Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects. Upon receipt of the Trust Mortgage File pertaining to any Qualifying Substitute Mortgage Loans, the Custodian shall release the Trust Mortgage File relating to such Deleted Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if necessary) shall execute and deliver such instruments of transfer or assignment in the form presented to it, in each case without recourse, representation or warranty, as shall be necessary to vest title (to the extent that such title was transferred to the Trustee or the Depositor) in the related Seller or its designee to any Deleted Mortgage Loan (including any property acquired in respect thereof or any insurance policy proceeds relating thereto) substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated above (a “Defective Mortgage Loan”), (y) such Defective Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (such Defective Mortgage Loan and such other Mortgage Loans, collectively, “Crossed Mortgage Loans”) and (z) the applicable document defect or breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to such other Crossed Mortgage Loans (without regard to this paragraph), then the applicable document defect or breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach (as the case may be) as to each such other Crossed Mortgage Loan for purposes of the above provisions, and the related Seller (and any related Seller Guarantor) shall be obligated to repurchase or replace each such other Crossed Mortgage Loan in accordance with the provisions above unless, in the case of such breach or document defect, (A) the Seller provides a Nondisqualification Opinion to the Trustee at the expense of the Seller and (B) both of the following conditions would be satisfied if the related Seller were to repurchase or replace only those Mortgage Loans as to which a Material Breach or
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Material Document Defect had occurred without regard to this paragraph (the “Affected Loan(s)”): (i) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) for the four (4) calendar quarters immediately preceding the repurchase or replacement is not less than the lesser of (A) 0.10x below the debt service coverage ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement and (B) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater of (A) the loan-to-value ratio, expressed as a whole number (taken to one decimal place), for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement plus 10% and (B) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)), at the time of repurchase or replacement. The determination of the Master Servicer as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error. The Master Servicer will be entitled to cause to be delivered, or direct the related Seller (and any related Seller Guarantor) to (in which case the related Seller (and any related Seller Guarantor) shall be required under the related Mortgage Loan Purchase Agreement to) cause to be delivered to the Master Servicer, an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (ii) above has been satisfied, in each case at the expense of the related Seller if the scope and cost of the Appraisal is approved by the related Seller (such approval not to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the applicable Seller (and any related Seller Guarantor) is required to repurchase or substitute for such Defective Mortgage Loan (each, a “Repurchased Loan”) in the manner prescribed above while the Custodian (on the Trustee’s behalf) continues to hold any Crossed Mortgage Loan, the applicable Seller and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to forbear from enforcing any remedies against the other’s Primary Collateral but each is permitted to exercise remedies against the Primary Collateral securing its respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing Mortgage Loans still held by the Trustee or the Custodian, so long as such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such party, then both parties have agreed to forbear from exercising such remedies until the loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the applicable Mortgage Loan Purchase Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Mortgage Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding principal balances. All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof. The Mortgagors set forth on Schedule VI hereto are intended third-party beneficiaries of the provisions set forth in this paragraph and the preceding paragraph. The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.
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Any of the following document defects shall be conclusively presumed materially and adversely to affect the interests of Certificateholders in a Mortgage Loan and be a Material Document Defect: (A) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity that appears to be regular on its face (if such absence results from the related Seller’s failure to deliver such item); (B) the absence from the Mortgage File of the original signed Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof) that appears to be regular on its face, unless there is included in the Mortgage File a certified copy of the Mortgage by the local authority with which the Mortgage was recorded (if such absence results from the related Seller’s failure to deliver such item); (C) the absence from the Mortgage File of the item called for by paragraph (viii) of the definition of “Mortgage File” (or with respect to any Non-Serviced Mortgage Loan, a copy thereof) (if such absence results from the related Seller’s failure to deliver such item); (D) the absence from the Mortgage File of the original or a copy of any letter of credit in effect as of the Closing Date (if such absence results from the related Seller’s failure to deliver such item); or (E) the absence from the Mortgage File of a copy of the item specified in paragraph (x) of the definition of “Mortgage File” (if such absence results from the related Seller’s failure to deliver such item) if the related Mortgage Loan is secured only by the related ground lease, Space Lease or air rights lease. If any party hereto notifies the Trustee of the occurrence of any of the foregoing Material Document Defects, the Trustee shall notify the Master Servicer and the Special Servicer, and the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall take the steps described elsewhere in this Section 2.3(a), including the giving of notices to the related Seller, the Rating Agencies (subject to Section 5.7), the parties hereto and, to the extent any Material Document Defect relates to a Serviced Pari Passu Mortgage Loan, the holder of the related Serviced Companion Loan, and the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall make demand upon the related Seller for the cure of the document defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or cure of such Material Document Defect or Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to replace an affected Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance with the related Mortgage Loan Purchase Agreement, then provided that (x) the period of time provided for the related Seller to correct, repurchase or cure has expired and (y) the Mortgage Loan is then in default (or default is reasonably foreseeable) and is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to the Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate (or permit the liquidation of) the Mortgage Loan or any REO Property, as applicable, pursuant to Section 9.5, Section 9.12, Section 9.13, Section 9.15, Section 9.16, Section 9.17 and Section 10.3 and the terms and conditions of any related Intercreditor Agreement, as applicable, while pursuing the repurchase claim. The related Seller (and any related Seller Guarantor) has acknowledged and agreed under the related Mortgage Loan Purchase Agreement that any modification of the Mortgage Loan pursuant to a workout shall not constitute a defense to any repurchase claim nor shall such modification and workout change the Purchase Price due from the related Seller (and any related Seller Guarantor) for any repurchase claim. In the event of any such modification and workout, the related Seller (and any related Seller Guarantor) has
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agreed under the related Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and that the Purchase Price shall include any Workout Fee paid to the Special Servicer up to the date of repurchase plus the present value (calculated at the applicable Calculation Rate) of the Workout Fee that would have been payable to the Special Servicer in respect of such Mortgage Loan if it performed in accordance with its terms to its Maturity Date, provided that no amount shall be paid by the related Seller (or any related Seller Guarantor) in respect of any Workout Fee if a Liquidation Fee already comprises (or will comprise) a portion of the Purchase Price or if the related Mortgagor has already paid such fee. The related Seller (and any related Seller Guarantor) shall be notified promptly and in writing by the Special Servicer of any offer that it receives to purchase the applicable Mortgage Loan or any REO Property, as applicable, each in connection with such liquidation. Any sale of the related Mortgage Loan, or foreclosure thereupon and sale of the related REO Property, to a Person other than the related Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against the related Seller and (ii) representation or warranty of any kind (either expressed or implied) by the related Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not discovered until after the completion of foreclosure (but in all instances prior to the sale of the related REO Property) shall not prejudice any claim against the Seller (or any related Seller Guarantor) for repurchase of the REO Property (or the Trust’s interest therein). In such an event, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, shall notify the related Seller of the discovery of the Material Document Defect or Material Breach and the related Seller shall have ninety (90) days to correct or cure such Material Document Defect or Material Breach or purchase the REO Property (or the Trust’s interest therein) at the Purchase Price. If the related Seller (or any related Seller Guarantor) fails to correct or cure the Material Document Defect or Material Breach or purchase the REO Property, then the provisions above regarding notice of offers related to such REO Property shall apply. After a final liquidation of the Mortgage Loan or REO Property, if a court of competent jurisdiction issues a final order after the expiration of any applicable appeal period that the related Seller (or any related Seller Guarantor) is or was obligated to repurchase the related Mortgage Loan or REO Property (a “Final Judicial Determination”) or the related Seller (or any related Seller Guarantor) otherwise accepts liability, then, but in no event later than the termination of the Trust pursuant to Section 11.1, the related Seller (and any related Seller Guarantor) will be obligated to pay to the Trust the difference between any Liquidation Proceeds received upon such liquidation (including those arising from any sale to the related Seller) and the Purchase Price.
In any month in which the related Seller (or any related Seller Guarantor) substitutes one or more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate Stated Principal Balance of all such Qualifying Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (in each case after application of scheduled principal portion of the monthly payments received in the month of substitution). The Depositor shall cause the related Seller (or any related Seller Guarantor) to deposit the amount of such shortage into the Collection Account in the month of substitution, without any reimbursement thereof. In addition, the Depositor shall cause the related Seller (or any related Seller Guarantor) to deposit into the Collection Account, together
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with such shortage, if any, an amount equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due Date as to which interest was last paid up to the Due Date next succeeding such substitution together with the amount of unreimbursed Servicing Advances, amounts required to be paid to the Special Servicer but remaining unpaid or unreimbursed, and interest on unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance Rate. The Depositor shall cause the related Seller (or any related Seller Guarantor), in the case of the Mortgage Loans, to give notice in writing (accompanied by an Officer’s Certificate as to the calculation of such shortage) to the Trustee, the Custodian, the Certificate Administrator, the Master Servicer and the Special Servicer of such event which notice shall be accompanied by an Officer’s Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master Servicer shall designate the Collection Account as the account to which funds in the amount of the Purchase Price are to be wired. Any such purchase of a Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, if there is a breach of the representations and warranties set forth in paragraph 30 or paragraph 32 in Exhibit 2 to any Mortgage Loan Purchase Agreement, and as a result the payments by a Mortgagor of reasonable costs and expenses associated with securing the consent or approval of the holder of the Mortgage for a waiver of a “due-on-sale” or “due-on-encumbrance” clause or the defeasance of a Mortgage Loan are insufficient such that the Trust incurs an Additional Trust Expense in an amount equal to such reasonable costs and expenses not paid by such Mortgagor, the related Seller (and any related Seller Guarantor) has agreed to reimburse the Trust within ninety (90) days of the receipt of notice of such breach in an amount sufficient to avoid such Additional Trust Expense. With respect to any Joint Mortgage Loan, the applicable Seller’s obligation shall be such Seller’s pro rata share based on such Seller’s percentage interest as of the date of the applicable Mortgage Loan Purchase Agreement in such Joint Mortgage Loan. The parties hereto acknowledge that such reimbursement shall be the only obligation of the related Seller (and any related Seller Guarantor) with respect to the breach discussed in the second preceding sentence.
If a Mortgage Loan or an REO Property is repurchased or replaced by a Seller (or any related Seller Guarantor) as contemplated by this Section 2.3, the Master Servicer shall provide prompt electronic notice to the Special Servicer, the Certificate Administrator (who shall promptly post such notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7).
With respect to any Joint Mortgage Loan, the obligations of each of the applicable Sellers to repurchase or substitute with respect to a Material Document Defect or Material Breach with respect to the related Mortgage Loan shall be limited to a repurchase or substitution with respect to the Mortgage Note it sold to the Depositor in accordance with the related Mortgage Loan Purchase Agreement. With respect to any Joint Mortgage Loan, any cure by either of the applicable Sellers with respect to the Mortgage Note sold by it to the Depositor in accordance with the related Mortgage Loan Purchase Agreement that also cures the Material
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Document Defect or Material Breach with respect to the entire related Joint Mortgage Loan shall satisfy the cure obligations of both Sellers with respect to such Joint Mortgage Loan.
(b) In connection with any repurchase of or substitution for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Custodian, the Master Servicer and the Special Servicer shall each tender to the related Seller, after delivery to each of them of a receipt executed by such Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the related Seller or its designee in the same manner, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which documents were previously assigned to the Trustee, but in any event, without recourse, representation or warranty; provided that such tender by the Trustee and the Custodian shall be conditioned upon its receipt from the Master Servicer of a Request for Release. The Master Servicer shall, and is hereby authorized and empowered by the Trustee to, prepare, execute and deliver in its own name, on behalf of the Certificateholders and the Trustee or any of them, the endorsements and assignments contemplated by this Section 2.3, and the Trustee shall execute and deliver any powers of attorney substantially in the form of Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer) necessary to permit the Master Servicer to do so. The Master Servicer shall, and is also hereby authorized and empowered by the Trustee to, reconvey to the related Seller any deposits then held in an Escrow Account relating to the Mortgage Loan being repurchased or substituted for. The Master Servicer shall indemnify the Trustee for all costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee in connection with any negligent or intentional misuse of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies available to the Certificateholders, or the Trustee on behalf of the Certificateholders, respecting any Material Document Defect or Material Breach. The parties hereunder understand that (i) MSMCH, as Seller under Mortgage Loan Purchase Agreement II, will be providing the remedies with respect to the MSMCH Loans, (ii) BANA, as Seller under Mortgage Loan Purchase Agreement I, will be providing the remedies with respect to the BANA Loans, (iii) CIBC, as Seller under Mortgage Loan Purchase Agreement III, will be providing the remedies with respect to the CIBC Loans, and (iv) SMF III, as Seller under Mortgage Loan Purchase Agreement IV (and Starwood Mortgage Capital LLC, as the guarantor of SMF III’s repurchase and/or substitution obligations), will be providing the remedies with respect to the SMF III Loans.
(d) The Master Servicer or the Special Servicer may enforce the provisions of this Section 2.3.
(e) If the Depositor, the Master Servicer or the Special Servicer (each a “Repurchase Request Recipient”): (1) receives notice of a Demand; or (2) receives notice of a withdrawal of a Demand by the Person making such Demand, then such party shall give written notice thereof to the applicable Seller and the other parties hereto within ten (10) Business Days from the date of receipt of such notice. Each notice required by this Section 2.3(e) (a “Rule 15Ga-1 Notice”) shall include: (i) the date the Demand was delivered to the Repurchase Request Recipient or was withdrawn by the Person making such Demand, as the case may be;
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(ii) the identity of the related Mortgage Loan and the identity of the Person making such Demand; (iii) the breach of representation or warranty or document deficiency asserted by the Person making the Demand, to the extent known to the Repurchase Request Recipient; and (iv) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Demand. Each Rule 15Ga-1 Notice may be delivered by electronic means. A Repurchase Request Recipient shall not be required to provide any information under this Section 2.3(e) if and to the extent that such information is protected by either the attorney-client privilege or the attorney work product doctrines. Each Mortgage Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice is provided only to assist the Depositor, the related Seller and their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient, and (B) no information provided pursuant to this Section 2.3(e) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice
If the Trustee, Custodian or the Certificate Administrator receives a Demand, then such party shall promptly (but in no event later than ten (10) calendar days following receipt by the Certificate Administrator, Custodian or the Trustee, as the case may be) forward such Demand to the Master Servicer (with a copy to the Special Servicer), if relating to a Non-Specially Serviced Mortgage Loan, or to the Special Servicer (with a copy to the Master Servicer), if relating to a Specially Serviced Mortgage Loan (or any successor REO Mortgage Loan), and shall include the following statement in the related correspondence: “This is a “Demand” under Section 2.3 of the Pooling and Servicing Agreement relating to the MSBAM 2015-C23 Commercial Mortgage Pass-Through Certificates requiring action by you as the “Repurchase Request Recipient” thereunder”. Upon receipt of a Demand by the Master Servicer or Special Servicer, as applicable, pursuant to the prior sentence, such party shall be deemed a Repurchase Request Recipient in respect of such Demand, and such party shall comply with the procedures set forth in the prior paragraph of this Section 2.3(e) with respect to such Demand. None of the Trustee, the Custodian or the Certificate Administrator shall accept any oral Demands, and each of the Trustee, the Custodian and the Certificate Administrator shall direct any Person making a Demand to submit it in writing to the Certificate Administrator (who will then act in accordance with the first sentence of this paragraph). Any Demand to the Certificate Administrator must be submitted in writing or by email to mmgrepurchases@wellsfargo.com (or such other email address as the Certificate Administrator shall designate from time to time) with a subject line of “Repurchase Request - MSBAM 2015-C23”.
Section 2.4 Representations and Warranties. The Depositor hereby represents and warrants to the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee (in its capacity as Trustee of the Trust), Custodian and the Certificate Administrator, and for the benefit of the Certificateholders, as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;
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(b) The execution and delivery by the Depositor of this Agreement have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties; (ii) the certificate of incorporation or bylaws of the Depositor; or (iii) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound; neither the Depositor nor any of its Affiliates is a party to, bound by, or in breach of or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or to the best knowledge of the Depositor may in the future materially and adversely affect (i) the ability of the Depositor to perform its obligations under this Agreement or (ii) the business, operations, financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership, liquidation and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(e) There are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement; and
(f) Immediately prior to the consummation of the transactions contemplated in this Agreement, the Depositor had good title to and was the sole owner of each Mortgage Loan free and clear of any and all adverse claims, charges or security interests (including liens arising under the federal tax laws or the Employee Retirement Income Security Act of 1974, as amended).
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Section 2.5 Conveyance of Interests. Effective as of the Closing Date, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Trustee, without recourse, in trust, all the right, title and interest of the Depositor in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii) the REMIC I Regular Interests in exchange for the REMIC II Interests, (iii) the REMIC II Regular Interests in exchange for the REMIC III Interests, (iv) the EC REMIC III Regular Interests in exchange for the Exchangeable Certificates and (v) the right to receive Excess Interest in exchange for the Class V Certificates. The Trustee acknowledges such assignment and on the Closing Date, and in exchange therefor, the Certificate Registrar, on behalf of the Trustee, has executed and the Authenticating Agent, on behalf of the Trustee, has authenticated and delivered to or upon the order of the Depositor the Regular Certificates, Exchangeable Certificates, Class V Certificates and Class R Certificates in authorized denominations, in each case registered in the name set forth in such order or as so directed in this Agreement.
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, with respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the document delivery requirements set forth herein will be satisfied by the delivery by the applicable Seller of copies of each such document specified herein (other than the Mortgage Note (and all intervening endorsements) evidencing the Mortgage Loan, with respect to which the originals shall be required); provided, the document delivery requirements for the Assignment of Mortgage, any assignment of Assignment of Leases and any UCC-3 financing statement set forth herein will be satisfied by the delivery by the applicable Seller of copies of such documents made in favor of the trustee of the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
ARTICLE
III
THE CERTIFICATES
Section 3.1 The Certificates.
(a) The Certificates shall be in substantially the forms set forth in the Exhibits attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may in the reasonable judgment of the Trustee or the Depositor be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange on which any of the Certificates may be listed, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof.
Each Class of Exchangeable Certificates shall be issued on the Closing Date with the respective Aggregate Certificate Balance set forth for such Class in the Preliminary Statement hereto.
The Definitive Certificates shall be printed, typewritten, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which any of the Certificates may be listed,
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all as determined by the officers executing such Certificates, as evidenced by their execution thereof.
(b) The Class X Certificates will be issuable in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof. The Registered Certificates (other than the Class X-A Certificates) will be issuable in denominations of $10,000 initial Certificate Balance and in any whole dollar denomination in excess thereof. The Non-Registered Certificates that are Principal Balance Certificates will be issuable in denominations of $100,000 initial Certificate Balance and in any whole dollar denomination in excess thereof. The Class V and Class R Certificates will be issued in minimum Percentage Interests of 10% and integral multiples of 1% in excess thereof.
(c) Each Certificate shall, on original issue, be executed by the Certificate Registrar and authenticated by the Authenticating Agent upon the order of the Depositor. No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein, executed by an authorized officer of the Authenticating Agent by manual signature, and such certification upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. At any time and from time to time after the execution and delivery of this Agreement, the Depositor may deliver Certificates to the Authenticating Agent for authentication and the Authenticating Agent shall authenticate and deliver such Certificates only as provided for in this Agreement. If additional Certificates need to be prepared at any time subsequent to the Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or cause to be delivered, at the Depositor’s expense, any such additional Certificates. With respect to the REMIC III Regular Certificates and Exchangeable Certificates that are issued in book-entry form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Book-Entry Certificates that are issued to a Clearing Agency or its nominee as provided in Section 3.7 against payment of the purchase price thereof. With respect to the Non-Registered Certificates that are issued in definitive form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Definitive Certificates that are issued to the registered holder thereof against payment of the purchase price thereof.
Section 3.2 Registration. The Certificate Administrator shall be the initial Certificate Registrar in respect of the Certificates and the Certificate Registrar shall maintain books for the registration and for the transfer of Certificates (the “Certificate Register”). The Certificate Registrar may resign or be discharged or removed by the Certificate Administrator or the Certificateholders, and a new successor may be appointed, in accordance with the procedures and requirements set forth in Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or removal of the Certificate Administrator and the appointment of a successor Certificate Administrator. The Certificate Registrar may appoint, by a written instrument delivered to the Holders and the Trustee, any trust company to act as co-registrar under such conditions as the Certificate Registrar may prescribe; provided that the Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment.
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Section 3.3 Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof only upon presentation and surrender of such Certificate at the Corporate Trust Office of the Certificate Administrator, duly endorsed or accompanied by a written instrument of transfer duly executed by such Holder or such Holder’s duly authorized attorney in such form as shall be satisfactory to the Certificate Registrar. Upon the transfer of any Certificate in accordance with the preceding sentence, and subject to the restrictions set forth in the other subsections of this Section 3.3, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as the Certificate being transferred. No service charge shall be made to a Certificateholder for any registration of transfer of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration or transfer of Certificates. The Certificate Registrar may decline to accept any request for a registration of transfer of any Certificate during the period beginning five (5) calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as the Certificate surrendered, upon surrender of the Certificate to be exchanged at the offices of the Certificate Registrar duly endorsed or accompanied by a written instrument of exchange duly executed by such Holder or such Holder’s duly authorized attorney in such form as is satisfactory to the Certificate Registrar. Certificates delivered upon any such exchange will evidence the same obligations, and will be entitled to the same rights and privileges, as the Certificates surrendered. No service charge shall be made to a Certificateholder for any exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any exchange of Certificates. Whenever any Certificates are so surrendered for exchange, the Certificate Registrar shall execute and the Authenticating Agent shall authenticate, date and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any Non-Registered Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Non-Registered Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 hereto and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written
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certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No transfer of a Class R Certificate may be made to a Person that is not a Qualified Institutional Buyer, and any certificate and/or opinion of counsel delivered pursuant to the preceding sentence must reflect that the Transferee of a Class R Certificate is a Qualified Institutional Buyer. No transfer of a Class V Certificate may be made to a Person that is not a Qualified Institutional Buyer or an Institutional Accredited Investor. No transfer of a Class V or Class R Certificate may be made in book-entry form. No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to this Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of Non-Registered Certificates or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to this Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Class V or Class R Certificate or other Non-Investment Grade Certificate or any interest therein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) except in the case of a Class V or Class R Certificate, the purchase and holding of such Certificate or interest therein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate (other than a Class V or Class R Certificate) held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to this Agreement to any obligation in addition to those undertaken in this Agreement. Each Person who acquires any Class V or Class R Certificate or other Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless, in the case of a Non-Investment Grade Certificate (other than a Class V or Class R Certificate), it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in
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clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B hereto that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) that, except in the case of a Class V or Class R Certificate, the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Administrator under clause (F) below to deliver payments to a Person other than such Person and to have irrevocably authorized the Certificate Registrar under clause (G) below to negotiate the terms of any mandatory sale and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of such person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Permitted Transferee and (2) each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Qualified Institutional Buyer and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Class R Certificate shall be registered until the Certificate Registrar receives, an affidavit and agreement substantially in the form attached hereto as Exhibit E-1 (a “Transferee Affidavit and Agreement”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is a Qualified Institutional Buyer, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, that it is a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, that if such Transferee is a partnership, trust or disregarded entity for U.S. federal income
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tax purposes, then each Person that may be allocated income from a Class R Certificate is a United States Tax Person, that it is not a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person, that it has historically paid its debts as they have come due and will continue to do so in the future, that it understands that its tax liability with respect to the Class R Certificates may exceed cash flows thereon and it intends to pay such taxes as they come due, that it will not cause income with respect to the Class R Certificates to be attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of such proposed Transferee or any other United States Tax Person, that it will provide the Certificate Registrar with all information necessary to determine that the applicable paragraphs of Section 13 of such Transferee Affidavit and Agreement are true or that Section 13 is not applicable, and that it has reviewed the provisions of this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transferee Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee or is not a United States Tax Person, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a Class R Certificate shall agree (1) to require a Transferee Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Class R Certificate and (2) not to transfer its Ownership Interest in such Class R Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached hereto as Exhibit E-2 stating, among other things that (x) it has conducted a reasonable investigation of the financial condition of the proposed Transferee and, as a result of the investigation, the Transferor determines that the proposed Transferee had historically paid its debts as they came due and found no significant evidence that the proposed Transferee will not continue to pay its debts as they come due in the future and, (y) it has no actual knowledge that such prospective Transferee is not a Permitted Transferee, is not a United States Tax Person or a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, is a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person or is a Person with respect to which income on the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate that is a “pass-through interest holder” within the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Class R Certificate on behalf of a “pass-through interest holder”, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written
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notice of its status as such immediately upon holding or acquiring such Ownership Interest in a Class R Certificate.
(F) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the provisions of this Section 3.3(e) or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, then the last preceding Holder of such Class R Certificate that was in compliance with the provisions of this Section 3.3(e) shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. None of the Trustee, the Custodian, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar or the Certificate Administrator shall be under any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 3.3(e) or for making any payments due on such Certificate to the Holder thereof or for taking any other action with respect to such Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 3.3(e), or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, and to the extent that the retroactive restoration of the rights and obligations of the prior Holder of such Class R Certificate as set forth in clause (F) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Class R Certificate, but not the obligation, to sell or cause to be sold such Class R Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such noncomplying Holder shall promptly endorse and deliver such Class R Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by the Certificate Registrar to such noncomplying Holder. The terms and conditions of any sale under this clause (G) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
The Certificate Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information in its possession necessary to compute any tax imposed (i) as a result of the Transfer of an Ownership Interest in a Class R Certificate to any Person who is not a Permitted Transferee, including the information described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Class R Certificate and (ii) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person which is not a Permitted Transferee. The Person holding such Ownership Interest shall be responsible for the reasonable compensation of the Master Servicer and the Certificate Administrator for providing such information.
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The provisions of this Section 3.3(e) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Master Servicer and the Depositor, an Opinion of Counsel (subject to Section 5.7, a copy of which shall be provided to each Rating Agency), in form and substance satisfactory to the Trustee, the Certificate Registrar and the Depositor, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC Pool to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused by the Transfer of any Class R Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the prospective Transferee to be subject to a tax caused by the Transfer of a Class R Certificate to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Certificate Administrator, the Custodian or the Certificate Registrar shall have any liability to the Trust arising from a transfer of any Certificate in reliance upon a certification, ruling or opinion of counsel described in this Section 3.3; provided, that the Certificate Registrar shall not register the transfer of a Class R Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Class R Certificate as set forth in Section 3.3(e); provided, further, that the Certificate Registrar shall not register the transfer of a Class R Certificate if it shall have received notice that the Transferor has determined, as a result of the investigation under Section 3.3(e)(D), that the proposed Transferee has not paid its debts as they came due or that it will not pay its debts as they come due in the future. The Certificate Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer or exchange of Certificates or any interest therein imposed under this Article III or under applicable law other than to require delivery of the certifications and/or opinions described in this Article III; provided, that the Certificate Registrar shall not register the transfer of a Class R Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Class R Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have no liability for transfers (including without limitation transfers made through the book-entry facilities of the Depository or between or among Participants or Certificate Owners) made in violation of applicable restrictions, provided that the Certificate Registrar has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be physically cancelled by the Certificate Registrar, and the Certificate Registrar shall hold such cancelled Certificates in accordance with its standard procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the Special Servicer and the Depositor, upon written request, with an updated copy of the Certificate Register within a reasonable period of time following receipt of such request.
(i) Unless and until it is exchanged in whole for the individual Certificates represented thereby, a Global Certificate representing all of the Certificates of a Class may not be transferred, except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing
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Agency, and no such transfer to any such other Person may be registered; provided that this subsection (i) shall not prohibit any transfer of a Certificate of a Class that is issued in exchange for a Global Certificate of the same Class pursuant to Section 3.9 below. Nothing in this subsection (i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Certificate effected in accordance with the other provisions of this Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (A) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (B) except in the case of a mutilated Certificate so surrendered, there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust. In connection with the issuance of any new Certificate under this Section 3.4, the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 3.4 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners. Prior to presentation of a Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Trust Advisor, the Certificate Administrator and any agent of any such party, may treat the Person in whose name any Certificate is registered as of the related Record Date as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and no such party (nor any agent thereof) shall be affected by any notice to the contrary.
Section 3.6 Access to List of Certificateholders’ Names and Addresses.
(a) If any three (3) or more Certifying Certificateholders or any party to this Agreement (i) request in writing from the Certificate Registrar a list of the names and addresses of Certificateholders and (ii) in the case of a request by Certificateholders, state that such Certificateholders desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates, then the Certificate Registrar shall, within ten (10) Business Days after the receipt of such request, at no cost to such requesting party, afford such Certificateholders or applicable party to this Agreement, as applicable, access during normal business hours to a current list of the Certificateholders or, if requested, shall provide such list electronically to the applicable requesting party; provided, that the Certificate Registrar shall not be required to determine the identity of any Certificate Owner of any Book-Entry Certificate. Every Certificateholder, by receiving and holding a Certificate, agrees that none of the Certificate Registrar or any other party to this Agreement shall be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which such information was derived.
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(b) Upon the written request of any Certifying Certificateholder that (i) states that such Certificateholder desires the Certificate Registrar to transmit a notice to all Certificateholders stating that such Certificateholder wishes to be contacted by other Certificateholders, setting forth the relevant contact information and briefly stating the reason for the requested contact and (ii) provides a copy of the Special Notice which such Certificateholder proposes to transmit, the Certificate Registrar shall deliver such Special Notice to the Certificate Administrator, who shall make a copy of such Special Notice available electronically on the Certificate Administrator’s Website pursuant to Section 5.4. The costs and expenses of the Certificate Registrar associated with delivering any such Special Notice shall be borne by the party or parties requesting delivery of such Special Notice. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such Special Notice to Certificateholders, regardless of the information set forth in such Special Notice.
Section 3.7 Book-Entry Certificates.
(a) The REMIC III Regular Certificates and Exchangeable Certificates (exclusive of any Non-Registered Certificates that are sold in the United States to Institutional Accredited Investors that are not Qualified Institutional Buyers), in the case of each Class thereof, upon original issuance, shall be issued in the form of one or more Global Certificates representing the Book-Entry Certificates of such Class, to be delivered to the Certificate Registrar, as custodian for the Depository, the initial Clearing Agency, by, or on behalf of, the Depositor, provided, that any Non-Registered Certificates sold to Institutional Accredited Investors that are not Qualified Institutional Buyers, together with the Class V and Class R Certificates, will be issued as Definitive Certificates. The Global Certificates shall initially be registered on the Certificate Register in the name of Cede & Co., the nominee of the Depository, as the initial Clearing Agency, and no Certificate Owner will receive a Definitive Certificate representing such Certificate Owner’s interest in the Global Certificates, except as provided in Section 3.9. With respect to those Classes of Certificates issued as Global Certificates, unless and until Definitive Certificates have been issued to the related Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate Administrator, the Certificate Registrar, the Custodian and the Trustee may deal with the Clearing Agency for all purposes (including the making of distributions on the Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict with any other provisions of this Agreement, the provisions of this Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be exercised only through the Clearing Agency and the applicable Participants and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing
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Agency and/or the Participants. Pursuant to the Depository Agreement, unless and until Certificates are issued pursuant to Section 3.9, the initial Clearing Agency will make book-entry transfers among the Participants and receive and transmit distributions of principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or permitting actions with the consent of, or at the direction of, Holders of the Certificates evidencing a specified percentage of the aggregate unpaid principal amount of Certificates, such direction or consent may be given by the Clearing Agency at the direction of Certificate Owners owning Certificates evidencing the requisite percentage of principal amount of Certificates. The Clearing Agency may take conflicting actions with respect to the Certificates to the extent that such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class of Non-Registered Certificates (other than the Class V and Class R Certificates) initially sold in reliance on Rule 144A shall be represented by the Rule 144A Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository. The Non-Registered Certificates initially sold to Institutional Accredited Investors that are not Qualified Institutional Buyers, together with the Class V and Class R Certificates, shall be represented by Definitive Certificates for such Class. The Non-Registered Certificates evidenced by any Rule 144A Global Certificate or Definitive Certificate shall be subject to certain restrictions on transfer as set forth in Section 3.3 hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class of Non-Registered Certificates (other than the Class V and Class R Certificates) initially sold in offshore transactions in reliance on Regulation S shall be represented by the Regulation S Temporary Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository. Not earlier than the Release Date, beneficial interests in any Regulation S Temporary Global Certificate shall be exchangeable for beneficial interests in the Regulation S Permanent Global Certificate for such Class. Beneficial interests in any Regulation S Temporary Global Certificate may be held only through Euroclear Bank or Clearstream Bank; provided, that such interests may be exchanged for interests in the Rule 144A Global Certificate for such Class in accordance with the certification requirements described in Section 3.7(f). The Regulation S Permanent Global Certificates shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution Date occurring prior to the Release Date, each Certificate Owner of a Regulation S Temporary Global Certificate that holds a beneficial interest therein on the Release Date or on any such Distribution Date, as the case may be, must deliver to Euroclear Bank or Clearstream Bank (as applicable) a Regulation S Certificate; provided, that any Certificate Owner that holds a beneficial interest in a Regulation S Temporary Global Certificate on the Release Date or on any such Distribution Date that has previously delivered a Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to its interest therein does not need to deliver any subsequent Regulation S Certificate (unless the certificate previously delivered is no longer true as of such subsequent
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date, and such Certificate Owner must promptly notify Euroclear Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream Bank, as applicable, shall be required to promptly deliver to the Certificate Registrar a certificate substantially in the form of Exhibit H hereto to the effect that it has received the requisite Regulation S Certificates for each such Class, and no Certificate Owner (or transferee from any such Certificate Owner) shall be entitled to receive an interest in the Regulation S Permanent Global Certificate for such Class or any payment or principal or interest with respect to its interest in such Regulation S Temporary Global Certificate prior to the Certificate Registrar receiving such certification from Euroclear Bank or Clearstream Bank with respect to the portion of the Regulation S Temporary Global Certificate owned by such Certificate Owner (and, with respect to an interest in the applicable Regulation S Permanent Global Certificate, prior to the Release Date). After the Release Date, distributions due with respect to any beneficial interest in a Regulation S Temporary Global Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the related Regulation S Permanent Global Certificate is improperly withheld or refused. No interest in a Regulation S Global Certificate may be held by or transferred to a U.S. Person (as defined in Regulation S) except for exchanges for a beneficial interest in the Rule 144A Global Certificate for such Class as set forth in Section 3.7(f).
(e) Except in the limited circumstances described below in Section 3.9, owners of beneficial interests in Global Certificates shall not be entitled to receive physical delivery of Definitive Certificates. The Certificates are not issuable in bearer form. Upon the issuance of each Global Certificate, the Depository or its custodian shall credit, on its internal system, the respective principal amount of the individual beneficial interests represented by such Global Certificate to the accounts of Persons who have accounts with such Depository. Such accounts initially shall be designated by or on behalf of the Underwriters and the Initial Purchasers. Ownership of beneficial interests in a Global Certificate shall be limited to Customers or Persons who hold interests directly or indirectly through Customers. Ownership of beneficial interests in the Global Certificates shall be shown on, and the transfer of that ownership shall be effected only through, records maintained by the Depository or its nominee (with respect to interests of Customers) and the records of Customers (with respect to interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of a Global Certificate, the Depository or such nominee, as the case may be, shall be considered the sole owner and holder of the Certificates represented by such Global Certificate for all purposes under this Agreement and the Certificates, including, without limitation, obtaining consents and waivers thereunder, and the Trustee, the Custodian, the Certificate Administrator and the Certificate Registrar shall not be affected by any notice to the contrary. Except under the circumstance described in Section 3.9, owners of beneficial interests in a Global Certificate will not be entitled to have any portions of such Global Certificate registered in their names, will not receive or be entitled to receive physical delivery of Definitive Certificates in certificated form and shall not be considered the owners or holders of the Global Certificate (or any Certificates represented thereby) under this Agreement or the Certificates. In addition, no Certificate Owner of an interest in a Global Certificate shall be able to transfer that interest except in accordance with the Depository’s applicable procedures (in addition to those under this Agreement and, if applicable, those of Euroclear Bank and Clearstream Bank).
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(f) Any holder of an interest in a Regulation S Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the form of an Exchange Certification (substantially in the form of Exhibit G attached hereto), to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Rule 144A Global Certificate as set forth herein; provided that no Exchange Certification shall be required if any such exchange occurs after the Release Date. Any holder of an interest in the Rule 144A Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable, in the form of an Exchange Certification (substantially in the form of Exhibit G attached hereto), to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Regulation S Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Regulation S Global Certificate as set forth herein; provided, that if such exchange occurs prior to the Release Date, the transferee shall acquire an interest in a Regulation S Temporary Global Certificate only and shall be subject to all of the restrictions associated therewith described in Section 3.7(d). Following receipt of any Exchange Certification or request for transfer, as applicable, by the Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates being exchanged to reduce the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates for which such exchange is to be made, and (ii) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates for which such exchange is to be made to increase the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates being exchanged therefor. The form of the Exchange Certification shall be available from the Certificate Registrar.
(g) If a Holder of a Definitive Certificate wishes at any time to exchange such Definitive Certificate for an interest in the Rule 144A Global Certificate of the same Class, or to transfer such Definitive Certificate to a Person who is entitled to take delivery thereof in the form of an interest in the Rule 144A Global Certificate of the same Class, such Holder may, subject to the rules and procedures of the Depository, cause the exchange of such Definitive Certificate for an equivalent beneficial interest in the Rule 144A Global Certificate of the same Class; provided that such Holder shall pay all reasonable costs and expenses associated therewith. Upon receipt by the Certificate Registrar, as registrar, at its Corporate Trust Office, of (1) such Definitive Certificate, duly endorsed as provided herein, (2) instructions from such Holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Rule 144A Global Certificate equal to the Certificate Balance of the Definitive Certificate to be exchanged or transferred, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, and (3) a certificate in the form of Exhibit D-3 hereto, then the Certificate Registrar, as registrar, shall cancel or cause the cancellation of such Definitive Certificate and shall instruct the Depository to increase, or cause to be increased, the Certificate Balance of the applicable Rule 144A Global Certificate by the aggregate Certificate Balance of the Definitive Certificate to be exchanged or transferred and to credit, or cause to be credited, to the account of the Person specified in such instructions a
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beneficial interest in the applicable Rule 144A Global Certificate equal to the Certificate Balance of the Definitive Certificate so canceled.
Section 3.8 Notices to Clearing Agency. Whenever notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued to the related Certificateholders pursuant to Section 3.9, the Certificate Administrator shall give all such notices and communications specified herein to be given to Holders of the Book-Entry Certificates to the Clearing Agency which shall give such notices and communications to the related Participants in accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates.
(a) Definitive Certificates will be issued to the owners of beneficial interests in a Global Certificate or their nominees if (i) the Clearing Agency notifies the Depositor and the Certificate Registrar in writing that the Clearing Agency is unwilling or unable to continue as depositary for such Global Certificate and a qualifying successor depositary is not appointed by the Depositor within ninety (90) days thereof or (ii) the Trustee has instituted or caused to be instituted or has been directed to institute any judicial proceeding in a court to enforce the rights of the Certificateholders under this Agreement and under such Global Certificate and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or advisable for the Trustee or its custodian to obtain possession of such Global Certificate; provided, that under no circumstances will Definitive Certificates be issued to Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice of the occurrence of any of the events described in the preceding sentence, the Certificate Registrar shall notify the Clearing Agency and request the Clearing Agency to notify all Certificate Owners, through the applicable Participants, of the occurrence of the event and of the availability of Definitive Certificates to such Certificate Owners requesting the same. Upon surrender to the Certificate Registrar of the Global Certificates by the Clearing Agency, accompanied by registration instructions from the Clearing Agency for registration, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, the Definitive Certificates. None of the Depositor, the Trustee, the Custodian, the Certificate Administrator or the Certificate Registrar shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates, all references herein to obligations imposed upon or to be performed by the Clearing Agency shall be deemed to be imposed upon and performed by the Certificate Registrar, to the extent applicable with respect to such Definitive Certificates, and the Certificate Registrar and the Trustee and the Certificate Administrator shall recognize the Holders of Definitive Certificates as Certificateholders hereunder.
(b) If any Certificate Owner wishes to transfer its interest in a Rule 144A Global Certificate to an Institutional Accredited Investor that is not a Qualified Institutional Buyer, or wishes to transfer its interest in a Regulation S Global Certificate to a “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) that is an Institutional Accredited Investor but not a Qualified Institutional Buyer, then the transferee shall take delivery in the form of a Definitive Certificate, subject to the restrictions on the transfer of such Definitive Certificate in Section 3.3. No such transfer shall be made and the Certificate Registrar
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shall not register any such transfer unless such transfer complies with the provisions of Section 3.3 applicable to transfers of Definitive Certificates. Upon acceptance for exchange or transfer of a beneficial interest in a Global Certificate for a Definitive Certificate, as provided herein, the Certificate Registrar shall endorse on the schedule affixed to the related Global Certificate (or on a continuation of such schedule affixed to such Global Certificate and made a part thereof) an appropriate notation evidencing the date of such exchange or transfer and a decrease in the denomination of such Global Certificate equal to the denomination of such Definitive Certificate issued in exchange therefor or upon transfer thereof.
(c) Distributions of principal and interest on the Definitive Certificates shall be made by the Certificate Administrator directly to holders of Definitive Certificates in accordance with the procedures set forth in this Agreement.
Section 3.10 Exchanges of Exchangeable Certificates.
(a) On the Closing Date, the Grantor Trust shall issue the several Classes of Exchangeable Certificates. Each Class of Exchangeable Certificates shall be issued on the Closing Date with the respective Aggregate Certificate Balance set forth in the Preliminary Statement hereto.
(b) At the request of the Holder of Class A-S, Class B and Class C Certificates in the Exchange Proportion, and upon the surrender of such Exchangeable Certificates, the Certificate Administrator shall exchange such Exchangeable Certificates for Class PST Certificates with an original Aggregate Certificate Balance equal to the original Aggregate Certificate Balance of the Class A-S, Class B and Class C Certificates exchanged therefor. At the request of the Holder of Class PST Certificates, and upon the surrender of such Exchangeable Certificates, the Certificate Administrator shall exchange such Exchangeable Certificates for Class A-S, Class B and Class C Certificates in the Exchange Proportion and with an original Aggregate Certificate Balance equal to the original Aggregate Certificate Balance of the Class PST Certificates exchanged therefor. No service charge (other than administrative fees charged by the Depository) shall be payable by a Certificateholder in connection with any exchange of Certificates pursuant to this Section 3.10. There shall be no limitation on the number of exchanges authorized pursuant to this Section 3.10; provided, that (i) each of the Class A-S, Class B and Class C Certificates exchanged (whether surrendered or received) in such exchange shall have denominations no smaller than the minimum denominations set forth in Section 3.1 and (ii) exchanges pursuant to this Section 3.10 shall not be permitted after the Certificate Balance of the Class A-S REMIC III Regular Interest (and therefore the Aggregate Certificate Balance of the Class A-S Certificates and the Class PST Component A-S Principal Amount of the Class PST Component A-S) has been reduced to zero or if any Class of Exchangeable Certificates is no longer maintained as a Book-Entry Certificate. In addition, the Depositor shall have the right to make or cause exchanges on the Closing Date pursuant to instructions delivered to the Certificate Administrator on the Closing Date.
(c) [Reserved].
(d) In connection with any exchange of Exchangeable Certificates, the Certificate Registrar shall reduce the outstanding Aggregate Certificate Balance of such Class or
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Classes of Exchangeable Certificates surrendered by the applicable Holder on the Certificate Register and shall increase the outstanding Aggregate Certificate Balance of the related Class or Classes of Exchangeable Certificates received by such Holder in such exchange on the Certificate Register and the Certificate Registrar or the Certificate Administrator, as applicable, shall give appropriate instructions to the Depository and make appropriate notations on the Registered Global Certificate for each Class of Exchangeable Certificates to reflect such reductions and increases.
(e) In order to effect an exchange of Exchangeable Certificates, the Certificateholder shall notify the Certificate Administrator in writing or by e-mail to cts.cmbs.bond.admin@wellsfargo.com (with a subject line referencing “MSBAM 2015-C23” and setting forth the proposed Exchange Date) no later than three (3) Business Days before the proposed exchange date (the “Exchange Date”). The Exchange Date may be any Business Day other than the first or last Business Day of the month. The notice must (i) be set forth on the applicable Certificateholder’s letterhead, (ii) carry a medallion stamp guarantee and (iii) set forth the following information: the CUSIP number of each Exchangeable Certificate to be exchanged and each Exchangeable Certificate to be received; the outstanding Certificate Balance and the initial Certificate Balance of the Exchangeable Certificates to be exchanged, the Certificateholder’s DTC participant number; and the proposed Exchange Date. The Certificateholder and the Certificate Administrator shall utilize the “deposit and withdrawal system” at the Depository to effect such exchange of the applicable Exchangeable Certificates. A notice shall become irrevocable on the second Business Day before the proposed Exchange Date. Exchangeable Certificates shall be exchangeable on the books of the Depository for the corresponding Exchangeable Certificates on and after the Closing Date, by notice to the Certificate Administrator substantially in the form of Exhibit Q.
(f) The Certificate Administrator shall make the first distribution on an Exchangeable Certificate received by a Certificateholder in any exchange on the Distribution Date in the month following the month of exchange to the Certificateholder of record as of the applicable Record Date for such Certificate and Distribution Date. If an Exchange Date occurs in any month before the Distribution Date in such month, then any distributions to be made on such Distribution Date on any Certificates surrendered in the exchange shall be so made to the Certificateholder of record as of the applicable Record Date for such Certificates and such Distribution Date. Neither the Certificate Administrator nor the Depositor will have any obligation to ensure the availability in the market of the applicable Certificates to accomplish any exchange.
ARTICLE
IV
ADVANCES
Advances shall be made as provided herein by the Master Servicer and, if the Master Servicer does not make such Advances, by the Trustee except to the extent that the Master Servicer, the Special Servicer or the Trustee, as applicable, determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
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Section 4.1 P&I Advances by Master Servicer.
(a) On or prior to the Advance Report Date, the Master Servicer shall notify the Trustee and the Certificate Administrator if any P&I Advance Amount for such Distribution Date is greater than zero (provided that such notice shall be deemed given if the Master Servicer complies with its obligations under Section 8.11(a) or Section 8.11(d)(v)), and the Master Servicer shall make a P&I Advance in respect of each applicable Mortgage Loan of such amount no later than the Master Servicer Remittance Date. It is understood that the obligation of the Master Servicer to make such P&I Advances is mandatory and shall apply through any court appointed stay period or similar payment delay resulting from any insolvency of the Mortgagor or related bankruptcy, notwithstanding any other provision of this Agreement. Notwithstanding the foregoing, the Master Servicer shall not be required to make such P&I Advance if the Master Servicer determines, in accordance with Section 4.4 below, that any such P&I Advance would be a Nonrecoverable Advance and shall not make such P&I Advance if such P&I Advance if made would be a Nonrecoverable Advance as determined by the Special Servicer in accordance with the Servicing Standard and Section 4.4, in which event the Special Servicer shall promptly direct the Master Servicer not to make such P&I Advance; provided that the Special Servicer has no obligation to make such determination. Such determination shall be conclusive and binding on the Trustee, the Master Servicer and the Certificateholders, and the Trustee and the Master Servicer shall be entitled to rely conclusively on any such determination by the Special Servicer. The Special Servicer shall not make P&I Advances under this Agreement. If the Master Servicer fails to make a P&I Advance that it is required to make under this Section 4.1, it shall promptly notify the Trustee and the Certificate Administrator of such failure.
(b) If the Master Servicer determines that there is a P&I Advance Amount for a Distribution Date, the Master Servicer shall on the related Master Servicer Remittance Date either (A) deposit in the Collection Account an amount equal to the P&I Advance Amount or (B) utilize funds in the Collection Account being held for future distributions or withdrawals to make such Advance, except that the portion of such P&I Advance equal to the CREFC® License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®. Any funds being held in the Collection Account for future distribution or withdrawal and so used shall be replaced by the Master Servicer from its own funds by deposit in the Collection Account on or before any future Master Servicer Remittance Date to the extent that funds in the Collection Account on such Master Servicer Remittance Date shall be less than payments to the Certificate Administrator or other Persons required to be made on such date.
(c) In no event shall the Master Servicer (or the Trustee, as applicable) be obligated to make a P&I Advance with respect to a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan.
(d) In no event shall the Master Servicer (or the Trustee, as applicable) be obligated to make a P&I Advance with respect to any Mortgage Loan if the sum of all outstanding P&I Advances in respect of such Mortgage Loan (together with Advance Interest) is equal to or greater than the Stated Principal Balance plus all overdue amounts on such Mortgage Loan.
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Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans. With respect to the Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans (the “P&I Pari Passu Loans”), the Master Servicer and Special Servicer shall each be entitled to make its own determination that a P&I Advance previously made on any P&I Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance with respect to such P&I Pari Passu Loan in accordance with and subject to Section 4.1 and Section 4.4 independently of any determination made by any Other Master Servicer, Other Trustee or Other Special Servicer under the related Other Companion Loan Pooling and Servicing Agreement in respect of any P&I Pari Passu Loan following deposit of the Non-Serviced Companion Loans or Serviced Companion Loans into a commercial mortgage securitization trust, and the Other Master Servicer, Other Trustee and Other Special Servicer, as applicable, shall each make its own determination that a P&I Advance is or, if made, will be, a Nonrecoverable Advance (both as defined in the related Other Companion Loan Pooling and Servicing Agreement) or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance (both as defined in the related Other Companion Loan Pooling and Servicing Agreement) with respect to the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable, in accordance with the related Other Companion Loan Pooling and Servicing Agreement. No determination by the Master Servicer or the Special Servicer that any such P&I Advance is nonrecoverable shall be binding on the Other Master Servicer, the Other Trustee, the Other Special Servicer or the holders of any securities relating to the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable. No determination by the Other Master Servicer, the Other Trustee or the Other Special Servicer that any P&I Advance (as defined in the related Other Companion Pooling and Servicing Agreement) is nonrecoverable shall be binding on the Master Servicer, the Trustee, the Special Servicer or the Certificateholders.
The Master Servicer shall not be required to make a P&I Advance with respect to any P&I Pari Passu Loan after its receipt of notice from the related Other Master Servicer, Other Trustee or Other Special Servicer that it has determined that a P&I Advance (as defined in the related Other Companion Loan Pooling and Servicing Agreement) is or, if made, will be, a Nonrecoverable Advance on the Non-Serviced Companion Loans or Serviced Companion Loans, as applicable, or that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance pursuant to the relevant Other Companion Loan Pooling and Servicing Agreement. If the Master Servicer determines (or has received notice from the Special Servicer of its determination) that a P&I Advance would be (if made), or any outstanding P&I Advance previously made is, a Nonrecoverable Advance, the Master Servicer shall provide the Other Master Servicer written notice of such determination. If the Master Servicer, Special Servicer or Trustee receives written notice by the Other Master Servicer that it has determined, with respect to any Mortgage Loan, that any proposed future P&I Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance, the Master Servicer shall use reasonable efforts to consult on a non-binding basis with the Other Master Servicer regarding the circumstances with respect to such Mortgage Loan, but the Master Servicer, Special Servicer or Trustee, as applicable, shall be allowed to ultimately make its own determination. Any determination that a P&I Advance would be a Nonrecoverable Advance with respect to any Non-Serviced Mortgage Loan by the Master Servicer, Special Servicer or Trustee, any Other Master Servicer, any Other Trustee or any Other Special Servicer may, in all cases, be conclusively relied on by each of the Trustee, the Master Servicer and the Special Servicer. If the Master Servicer or the Trustee does
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not receive notice of an Appraisal Reduction with respect to any Non-Serviced Mortgage Loan, the Master Servicer or the Trustee, as applicable, shall not be obligated to proportionately reduce the amount of any P&I Advance required to be made by it, except to the extent an Appraisal Reduction is applied as described in the last sentence of the definition of “Appraisal Reduction.”
Following a securitization of a Serviced Companion Loan, the Master Servicer shall be required to deliver to the related Other Master Servicer the following information: (i) any loan related information (in the form received), including without limitation CREFC® Reports relating to the related Serviced Pari Passu Mortgage Loan, applicable to a determination that an Advance is or would be a Nonrecoverable Advance, within one (1) Business Day of the Master Servicer’s receipt thereof, (ii) notice of any Servicing Advance it, the Special Servicer or the Trustee makes with respect to the related Serviced Pari Passu Mortgage Loan within one (1) Business Day of the making of such Advance and (iii) notice of any determination that any Servicing Advance is a Nonrecoverable Advance within one (1) Business Day thereof.
Section 4.2 Servicing Advances. The Master Servicer and, if the Master Servicer does not, the Trustee to the extent the Trustee receives written notice from the Certificate Administrator that such Advance has not been made by the Master Servicer, shall make Servicing Advances to the extent provided in this Agreement, except to the extent that the Master Servicer or the Trustee, as applicable, determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance and, subject to the last sentence of this paragraph, except to the extent the Special Servicer determines in accordance with the Servicing Standard and Section 4.4 that such Advance, if made, would be a Nonrecoverable Advance, in which event the Special Servicer shall promptly direct the Master Servicer not to make such Advance (and the Master Servicer shall be bound by any such determination); provided that the Special Servicer has no obligation to make such determination. Such determination by the Master Servicer or the Special Servicer shall be conclusive and binding on the Trustee and the Certificateholders and, in the case of any A/B Whole Loan or Loan Pair, the holder of any related Serviced B Note and/or Serviced Companion Loan. The Special Servicer shall not be required to make Servicing Advances under this Agreement but may make such Servicing Advances (on an emergency basis) at its option in which event the Master Servicer shall reimburse the Special Servicer for such Servicing Advance (together with Advance Interest) promptly (but no later than five (5) Business Days) following receipt of a statement therefor. Promptly after discovering that the Master Servicer has failed to make a Servicing Advance that the Master Servicer is required to make hereunder, the Certificate Administrator shall promptly notify the Trustee (if the Certificate Administrator is not also the Trustee) in writing of the failure by the Master Servicer to make such Servicing Advance. The Master Servicer may make Servicing Advances in its own discretion if it determines that making such Servicing Advance is in the best interest of the Certificateholders, as a collective whole (and, in the case of any A/B Whole Loan, in the best interest of the holder of any related Serviced B Note and the Trust as a collective whole and, in the case of any Loan Pair, in the best interest of the holder of the related Serviced Companion Loan and the Trust as a collective whole), even if the Master Servicer or the Special Servicer has determined, in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is obligated to make “Servicing Advances” as defined in, and pursuant to, the related Non-Serviced Mortgage
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Loan Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan, and the Master Servicer shall have no obligation or authority to make Servicing Advances with respect to such Non-Serviced Mortgage Loan.
Section 4.3 Advances by the Trustee.
(a) To the extent that the Master Servicer fails to make a P&I Advance with respect to a Mortgage Loan by the Master Servicer Remittance Date (other than a P&I Advance that the Master Servicer or the Special Servicer determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance to the extent the Trustee receives written notice from the Certificate Administrator not later than 10:00 a.m. (New York City time) on the Distribution Date that such Advance has not been made by the Master Servicer on the Master Servicer Remittance Date unless the Trustee determines (in its good faith business judgment) that such P&I Advance, if made, would be a Nonrecoverable Advance. The Certificate Administrator shall notify (i) the Trustee (if the Certificate Administrator is not also the Trustee) in writing as soon as practicable, but not later than 10:00 a.m. (New York City time) on the Distribution Date if the Master Servicer has failed to make a P&I Advance and (ii) the Master Servicer and the Trustee in writing as soon as practicable, but not later than 5:00 p.m. (New York City time) on the Master Servicer Remittance Date, if it has not received a P&I Advance with respect to any Mortgage Loan set forth in the Master Servicer Remittance Report provided to the Certificate Administrator on the related Advance Report Date; provided, the failure of the Certificate Administrator to provide any such notice within such timeframe shall not diminish in any respect the obligations of the Master Servicer or the Trustee, as applicable, to make such P&I Advance in accordance with the terms set forth above.
(b) To the extent that the Master Servicer fails to make a Servicing Advance by the date such Servicing Advance is required to be made (other than a Servicing Advance that the Master Servicer or the Special Servicer, as applicable, determines is a Nonrecoverable Advance), and a Responsible Officer of the Trustee receives actual notice thereof, the Trustee shall make such Servicing Advance promptly, but in any event, not later than five (5) Business Days after notice thereof in accordance with Section 4.2, unless the Trustee determines (in its good faith business judgment) that such Servicing Advance, if made, would be a Nonrecoverable Advance.
(c) In no event shall the Trustee be obligated to make a P&I Advance with respect to a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan or any Servicing Advance with respect to a Non-Serviced Mortgage Loan.
Section 4.4 Evidence of Nonrecoverability.
(a) If the Master Servicer or the Special Servicer determines at any time, in its sole discretion, exercised in good faith, that any Advance previously made (or Unliquidated Advance in respect thereof) constitutes, or any proposed Advance, if made, would constitute, a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate delivered to the other such party, the Trustee, the Depositor, the Certificate Administrator, the 17g-5 Information Provider, the Trust Advisor (other than during any Subordinate Control Period), the Controlling Class Representative (during any Subordinate Control Period and any
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Collective Consultation Period) and the holder of any related Serviced B Note or Serviced Companion Loan (if the Advance relates to an A/B Whole Loan or a Loan Pair, as applicable) by the Business Day prior to the Distribution Date. Such Officer’s Certificate shall set forth the reasons for such determination of nonrecoverability, together with, to the extent such information, report or document is in the Master Servicer’s or Special Servicer’s possession, and, if such information, reports or documents are used by the Master Servicer or the Special Servicer, as applicable, to determine that any P&I Advance or Servicing Advance, as applicable, would be a Nonrecoverable Advance, any related financial information such as related income and expense statements, rent rolls, occupancy status, property inspections and any Appraisals performed within the last twelve (12) months on the Mortgaged Property, any engineers’ reports, environmental surveys, internal final valuations or other information relevant thereto which support such determination. If the Trustee determines at any time that any Advance previously made by the Trustee constitutes, or any proposed Advance, if made by the Trustee, would constitute, a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate of a Responsible Officer of the Trustee delivered to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the 17g-5 Information Provider, the holder of any related Serviced B Note or Serviced Companion Loan (if the Advance relates to an A/B Whole Loan or a Loan Pair, as applicable), the Trust Advisor (other than during any Subordinate Control Period) and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), stating the reasons for such determination. In making any nonrecoverability determination as set forth above, the relevant party shall be entitled (i) to consider (among other things) the obligations of the Mortgagor under the terms of the Mortgage Loan as it may have been modified, (ii) to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies as they actually are or may be modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties and/or (iii) to estimate and consider, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer (among other things), future expenses and/or the timing of recovery to such party. In addition, any Person, in considering whether any proposed P&I Advance or Servicing Advance would be a Nonrecoverable Advance, shall be entitled to give due regard to the existence of any Nonrecoverable Advance (including any related Advance Interest) or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, A/B Whole Loans or Loan Pairs which, at the time of such consideration, the reimbursement of which is being deferred or delayed by the Master Servicer, the Special Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that proceeds on the related Mortgage Loan, A/B Whole Loan or Loan Pair are a source of recovery not only for the Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. Furthermore, the relevant party may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, update or change its nonrecoverability determinations at any time in accordance with the terms hereof and may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, obtain from the Special Servicer any analysis, appraisals or other information in the possession of the Special Servicer for such purposes. Any determination by the Special Servicer that any Advance previously made (or Unliquidated Advance in respect thereof) constitutes a
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Nonrecoverable Advance shall be conclusive and binding on the Master Servicer and the Trustee, and the Master Servicer and Trustee shall be entitled to rely conclusively on any such determination by the Special Servicer.
(b) The Trustee shall not make an Advance that the Master Servicer or the Special Servicer has previously determined in accordance with the Servicing Standard to be a Nonrecoverable Advance (and, with respect to a Mortgage Loan included in a Loan Pair or any Non-Serviced Mortgage Loan, shall not be required to make an Advance that the related Other Master Servicer has previously determined to be a Nonrecoverable Advance). Notwithstanding any other provision of this Agreement, none of the Master Servicer, the Special Servicer or the Trustee shall be obligated to, nor shall it, make any Advance or make any payment that is designated in this Agreement to be an Advance, if it determines, with regard to the Trustee, in its good faith business judgment or, with respect to the Master Servicer or Special Servicer, in accordance with the Servicing Standard that such Advance or such payment (including interest accrued thereon at the Advance Rate) would be a Nonrecoverable Advance. Absent bad faith, the Master Servicer’s and Special Servicer’s determinations in accordance with the above provisions shall be conclusive and binding on the Trustee, the Certificate Administrator and the Certificateholders and may be conclusively relied on by the Trustee and each other. The Master Servicer or the Special Servicer, as applicable, shall consider Unliquidated Advances in respect of prior P&I Advances and Servicing Advances as outstanding Advances for purposes of nonrecoverability determinations as if such Unliquidated Advance were a P&I Advance or Servicing Advance, as applicable.
(c) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Trustee or Non-Serviced Mortgage Loan Fiscal Agent, as applicable, shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances pursuant to and to the extent set forth in the related Non-Serviced Mortgage Loan Intercreditor Agreement (with, in each case, any accrued and unpaid interest thereon provided for under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the manner set forth in Section 5.2.
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan. Any unreimbursed Advance funded from the Master Servicer’s, the Special Servicer’s or the Trustee’s own funds shall accrue interest, compounded annually, at a per annum rate equal to the Advance Rate, from and including the date such Advance was made to but not including the date on which such Advance has been reimbursed; provided that neither the Master Servicer nor any other party shall be entitled to interest accrued on the amount of any P&I Advance with respect to any Mortgage Loan for the period commencing on the date of such P&I Advance and ending on the day on which the grace period applicable to the related Mortgagor’s obligation to make the related Scheduled Payment expires pursuant to the related Mortgage Loan documents. All Late Collections on any Non-Serviced Mortgage Loan in respect of interest shall, promptly following receipt thereof, be applied by the Master Servicer to reimburse the interest component of any P&I Advance outstanding with respect to such Non-Serviced Mortgage Loan. Any party that makes a P&I Advance with respect to any Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced Mortgage Loan Master Servicer monthly, at least two (2) Business Days prior to the next succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of whether (and, if any, how much) Advance Interest will be payable on the interest component of that P&I
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Advance through the next succeeding related Master Servicer Remittance Date. For purposes of determining whether a P&I Advance is outstanding, amounts collected with respect to a particular Mortgage Loan (including a successor REO Mortgage Loan) and treated as collections of principal or interest shall be applied first to reimburse the earliest P&I Advance, and then each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The Master Servicer shall use efforts consistent with the Servicing Standard to collect (but shall have no further obligation to collect), with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and the Serviced Companion Loans that are not Specially Serviced Mortgage Loans, Penalty Charges from the Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer shall be entitled to retain Excess Penalty Charges paid by any Mortgagor during a Collection Period with respect to any Mortgage Loan (other than the portion of such Excess Penalty Charges that relate to the period commencing after the Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain Excess Penalty Charges with respect to such Specially Serviced Mortgage Loan) as additional servicing compensation. Penalty Charges shall be applied in accordance with Section 5.2(b).
Section 4.6 Reimbursement of Advances and Advance Interest.
(a) Advances made with respect to each Mortgage Loan, Serviced Companion Loan, Serviced B Note, Specially Serviced Mortgage Loan or REO Property (including Advances later determined to be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed to the extent of the amounts identified to be applied therefor in Section 5.2. The aggregate of the amounts available to repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in any Collection Period with respect to Mortgage Loans, any Serviced Companion Loan or any Serviced B Note or Specially Serviced Mortgage Loans or REO Property shall be an “Available Advance Reimbursement Amount.”
(b) To the extent that Advances have been made on the Mortgage Loans, any Loan Pair, any A/B Whole Loan or any REO Loans, the Available Advance Reimbursement Amount with respect to any Master Servicer Remittance Date shall be applied to reimburse (i) the Trustee for any Advances outstanding to the Trustee with respect to any of such Mortgage Loans, Loan Pairs, A/B Whole Loans and/or REO Loans, plus any Advance Interest owed to the Trustee with respect to such Advances, and then (ii) the Master Servicer and the Special Servicer for any Advances outstanding thereto with respect to any of such Mortgage Loans, Loan Pairs, A/B Whole Loans and/or REO Loans, plus any Advance Interest owed to the Master Servicer and the Special Servicer with respect to such Advances. To the extent that any Advance Interest payable to the Master Servicer, the Special Servicer or the Trustee with respect to an Advance on a Specially Serviced Mortgage Loan or REO Loan cannot be recovered from the related Mortgagor, the amount of such Advance Interest shall be payable to the Trustee, the Special Servicer or the Master Servicer, as the case may be, from amounts on deposit in the Collection Account (or sub-account thereof) or the Distribution Account, to the extent of amounts identified to be applied therefor, pursuant to Section 5.2(a), Section 5.2(b) or Section 5.3(b)(ii). The Master Servicer’s, the Special Servicer’s and the Trustee’s right of reimbursement under this Agreement for Advances, together with Advance Interest thereon, shall be prior to the rights of the Certificateholders (and, in the case of a Serviced Companion Loan, the holder thereof and, in the case of a Serviced B Note, the holder thereof) to receive any amounts recovered with respect to such Mortgage Loans, Serviced Companion Loans, Serviced B Notes or REO Loans.
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(c) Advance Interest will be paid to the Trustee, the Master Servicer and/or the Special Servicer (in accordance with the priorities specified in the preceding paragraph) first, in accordance with Section 5.2(b), from Penalty Charges and Allocable Modification Fees collected from the Mortgage Loans and, subject to the related Intercreditor Agreements, the Serviced Companion Loans and Serviced B Note (including REO Loans) during any particular Collection Period during which the related Advance is reimbursed, and then from Excess Liquidation Proceeds then available, prior to payment from any other amounts. Advance Interest payable to the Master Servicer, the Special Servicer or the Trustee in respect of Servicing Advances on any Loan Pair shall be allocated to the Serviced Pari Passu Mortgage Loan and the Serviced Companion Loan on a pro rata basis based upon the respective Unpaid Principal Balances thereof (after taking into account any amount allocable to any related Serviced B Note, if any, in accordance with the terms of the related Intercreditor Agreement).
(d) Amounts applied to reimburse Advances shall first be applied to reduce Advance Interest thereon that was not paid from amounts specified in the preceding paragraph (c) and then to reduce the outstanding amount of such Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket expenses, in accordance with the Servicing Standard, in connection with servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse the Special Servicer for such expenditures with interest at the Advance Rate promptly (but no later than five (5) Business Days) after receiving an invoice and a report from the Special Servicer, subject to Section 4.4. The Special Servicer shall not invoice the Master Servicer more than once per calendar month and shall provide an Officer’s Certificate setting forth its expenses and appropriate documentation evidencing such reimbursements. With respect to each Collection Period, the Special Servicer shall deliver such invoice and report to the Master Servicer by the following Determination Date. All such amounts reimbursed by the Master Servicer shall be a Servicing Advance, subject to Section 4.4. If the Master Servicer fails to reimburse the Special Servicer hereunder or the Master Servicer determines that such Servicing Advance was or, if made, would be a Nonrecoverable Advance and the Master Servicer does not make such payment, the Special Servicer shall notify the Master Servicer and the Certificate Administrator in writing of such nonpayment and the amount payable to the Special Servicer and shall be entitled to receive reimbursement from the Trust in the same manner as the Master Servicer would have been reimbursed for the Advance with interest at the Advance Rate. The Master Servicer, the Certificate Administrator and the Trustee shall have no obligation to verify the amount payable to the Special Servicer pursuant to this Section 4.6(e) and circumstances surrounding the notice delivered by the Special Servicer pursuant to this Section 4.6(e).
ARTICLE
V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.
(a) On or prior to the Closing Date, the Master Servicer shall open, or cause to be opened, and shall thereafter maintain, or cause to be maintained, a separate account or accounts, which accounts must be Eligible Accounts, in the name of “Wells Fargo Bank, National Association, as Master Servicer on behalf of Wilmington Trust, National Association,
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as Trustee for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23” (the “Collection Account”).
(b) On or prior to the date the Master Servicer shall first deposit funds in a Collection Account, the Master Servicer shall give to the Certificate Administrator and the Trustee prior written notice of the name and address of the depository institution at which such account is maintained and the account number of such account. The Master Servicer shall take such actions as are necessary to cause the depository institution holding the Collection Account to hold such account in the name of the Master Servicer as provided in Section 5.1(a), subject to the Master Servicer’s (or its sub-servicer’s) right to direct payments and investments and its rights of withdrawal under this Agreement.
(c) On the Closing Date, the Depositor shall deliver to the Master Servicer the Initial Deposit, and the Master Servicer shall deposit into the Collection Account the Initial Deposit on that date. The Master Servicer shall deposit, or cause to be deposited, into the Collection Account on the Business Day following receipt of properly identified funds (provided, that to the extent any of the following amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Master Servicer shall use commercially reasonable efforts to deposit such amounts into the Collection Account within one (1) Business Day of receipt of such amounts but, in any event, the Master Servicer shall deposit such amounts into the Collection Account within two (2) Business Days of receipt of such amounts), the following amounts received by it (including amounts remitted to the Master Servicer by the Special Servicer from an REO Account pursuant to Section 9.14), other than in respect of interest and principal on the Mortgage Loans, any Serviced Companion Loan or any Serviced B Note due (or deemed due) on or before the Cut-Off Date, which shall be remitted to the related Seller:
(A) Principal: all payments on account of principal, including Principal Prepayments, the principal component of Scheduled Payments, and any Late Collections in respect thereof, on the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note;
(B) Interest: all payments on account of interest on the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (minus any portion of any such payment that is allocable to the period prior to the Cut-Off Date which shall be remitted to the Depositor and excluding Interest Reserve Amounts to be deposited in the Interest Reserve Account pursuant to Section 5.3(b) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into an Escrow Account and not deposited in the Collection Account;
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(E) Condemnation Proceeds: all Condemnation Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into an Escrow Account and not deposited in the Collection Account;
(F) REO Income: all REO Income received from the Special Servicer;
(G) Investment Losses: any amounts required to be deposited by the Master Servicer pursuant to Section 5.1(e) in connection with losses realized on Eligible Investments with respect to funds held in the Collection Account and amounts required to be deposited by the Special Servicer pursuant to Section 9.14(b) in connection with losses realized on Eligible Investments with respect to funds held in the REO Account;
(H) Advances: all P&I Advances, unless made directly to the Distribution Account;
(I) Other: all Prepayment Premiums, Penalty Charges, Modification Fees and Assumption Fees and any and all other amounts required to be deposited in the Collection Account pursuant to this Agreement, including Purchase Proceeds of any Mortgage Loans repurchased by a Seller or substitution shortfall amounts (as set forth in the second (2nd) paragraph of Section 2.3(a)) paid by a Seller in connection with the substitution of any Qualifying Substitute Mortgage Loans, payments or recoveries in respect of Unliquidated Advances or in respect of Nonrecoverable Advances paid from principal collections on the Mortgage Loan pursuant to Section 5.2(a)(II), any Actual Recoveries of Trust Advisor Expenses, any other amounts received with respect to any Serviced Companion Loan and with respect to any Serviced B Note, and all other amounts received pursuant to the cure and purchase rights set forth in the applicable Intercreditor Agreement; and
(J) to the extent not otherwise set forth above, all amounts received from each Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Trustee or Non-Serviced Mortgage Loan Certificate Administrator pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement.
With respect to any A/B Whole Loan, the Master Servicer shall establish and maintain one or more sub-accounts of the Collection Account (each an “A/B Whole Loan Custodial Account”) into which the Master Servicer shall deposit any amounts described above that are required to be paid to the holder of the related Serviced B Note pursuant to the terms of the related Intercreditor Agreement, in each case on the same day as the deposit thereof into the Collection Account. Any A/B Whole Loan Custodial Account shall be held in the name of “Wells Fargo Bank, National Association, as Master Servicer for the benefit of the holder of the related Serviced B Note” and shall not be part of any REMIC Pool or the Grantor Trust.
With respect to any Loan Pair, the Master Servicer shall establish and maintain one or more sub-accounts of the Collection Account (each, a “Serviced Companion Loan
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Custodial Account”) into which the Master Servicer shall deposit any amounts described above that are required to be paid to the holder of the related Serviced Companion Loan pursuant to the terms of the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents), in each case on the same day as the deposit thereof into the Collection Account. Each Serviced Companion Loan Custodial Account shall be held in the name of “Wells Fargo Bank, National Association, as Master Servicer for the benefit of the holder of the related Serviced Companion Loan” and shall not be part of any REMIC Pool or the Grantor Trust.
Remittances from any REO Account to the Master Servicer for deposit in the Collection Account shall be made by the Special Servicer no later than the Special Servicer Remittance Date.
(d) Reserved.
(e) Funds in the Collection Account (including any Custodial Accounts) may be invested and, if invested, shall be invested by, and at the risk of, the Master Servicer in Eligible Investments selected by the Master Servicer which shall mature, unless payable on demand, not later than the Business Day immediately preceding the next Master Servicer Remittance Date, and any such Eligible Investment shall not be sold or disposed of prior to its maturity unless payable on demand. All such Eligible Investments shall be made in the name of “Wilmington Trust, National Association, as Trustee for the benefit of the Holders of the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 and the holder of any related Serviced Companion Loan or Serviced B Note, as their interests may appear.” None of the Depositor, the Mortgagors, the Underwriters, the Initial Purchasers, the Sellers, the Special Servicer, the Certificate Administrator, the Trustee or the Trust Advisor shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such investment (net of any portion thereof applied to offset losses on other investments) shall be paid to the Master Servicer as additional servicing compensation and shall be subject to its withdrawal at any time from time to time. The amount of any losses incurred in respect of any such investments shall be for the account of the Master Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Collection Account (and, solely to the extent that the loss is of an amount credited to a Custodial Account, deposit to such Custodial Account) out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Master Servicer deposits in or transfers to the Collection Account or any Custodial Account, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Collection Account or such Custodial Account, as the case may be, any provision herein to the contrary notwithstanding.
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(f) Except as expressly provided otherwise in this Agreement, if any default occurs in the making of a payment due under any Eligible Investment, or if a default occurs in any other performance required under any Eligible Investment, the Certificate Administrator, on behalf of the Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings; provided that if the Master Servicer shall have deposited in the Collection Account or the related Custodial Account, as applicable, an amount equal to all amounts due under any such Eligible Investment (net of anticipated income or earnings thereon that would have been payable to the Master Servicer as additional servicing compensation) the Master Servicer shall have the sole right to enforce such payment or performance.
(g) If a Mortgage Loan provides for payment by the Mortgagor to the Master Servicer of amounts to be used for payment of Escrow Amounts for the account of the Mortgagor, the Master Servicer shall deal with these amounts in accordance with the Servicing Standard, the terms of the related Mortgage Loans and Sections 8.3(e) and 10.3 hereof and the terms and conditions of any related Intercreditor Agreement. Schedule VII sets forth those Mortgage Loans as to which an upfront reserve was collected at closing in an amount in excess of $75,000 with respect to specific immediate work, including engineering work, completion of additional construction, environmental remediation or similar one-time projects (but not with respect to escrow accounts maintained for ongoing obligations, such as real estate taxes, insurance premiums, ongoing property maintenance, replacements and capital improvements or debt service).
Section 5.2 Withdrawals of Funds in the Collection Account.
(a) Subsection (I). The Master Servicer shall, from time to time, make withdrawals from the Collection Account (from the amounts specified for such purposes) for the following purposes (such list not to constitute an order of priority) and remit the amounts so withdrawn by wire transfer prior to 3:00 p.m. (New York City time), on the related Master Servicer Remittance Date, in immediately available funds to the account specified in this Section or otherwise (1) to such account as it shall determine from time to time, in the case of amounts payable to the Master Servicer from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (2) to the account specified in writing by the Certificate Administrator from time to time, in the case of amounts payable to the Certificate Administrator, the Custodian and the Trustee from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (3) to the Special Servicer from time to time, in the case of amounts payable to the Special Servicer from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below; and (4) to the Trust Advisor from time to time, in the case of amounts payable to the Trust Advisor from the Collection Account (or, insofar as they relate to a Serviced B Note or Serviced Companion Loan, from the related Custodial Account) pursuant to clause (iv) below:
(i) Fees: the Master Servicer shall apply Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and shall pay any Excess
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Modification Fees, Excess Penalty Charges and Assumption Fees to the Master Servicer and/or the Special Servicer in accordance with Section 8.10 and/or Section 9.11, as applicable;
(ii) Servicing Advances (including amounts later determined to be Nonrecoverable Advances): (A) in the case of all Mortgage Loans, Serviced Companion Loans, Serviced B Notes and REO Mortgage Loans, subject to clause (B) below and subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master Servicer, the Special Servicer and the Trustee pursuant to Section 4.6, (x) prior to a Final Recovery Determination or determination in accordance with Section 4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan, Serviced Companion Loan, REO Mortgage Loan or Serviced B Note, as applicable, from payments made by the related Mortgagor of the amounts to which a Servicing Advance relates or from REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a Servicing Advance has been or is being reimbursed, with any related Advance Interest thereon first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections), or (y) after a Final Recovery Determination or determination that any Servicing Advance on the related Mortgage Loan, Serviced Companion Loan, REO Mortgage Loan or Serviced B Note is a Nonrecoverable Advance in accordance with Section 4.4, any Servicing Advances made on the related Mortgage Loan, related Serviced Companion Loan, related Serviced B Note or REO Property from any funds on deposit in the Collection Account (regardless of whether such amount was recovered from the applicable Mortgage Loan, Serviced Companion Loan, Serviced B Note or REO Property) and pay Advance Interest thereon first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections); and (B) in the case of any Non-Serviced Mortgage Loan and from any funds on deposit in the Collection Account, to reimburse the applicable Non-Serviced Mortgage Loan Master Servicer, the applicable Non-Serviced Mortgage Loan Special Servicer and the applicable Non-Serviced Mortgage Loan Trustee for Pari Passu Loan Nonrecoverable Advances and any accrued and unpaid interest thereon provided for under the related Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced Mortgage Loan Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final Recovery Determination or determination that any Advance is a Nonrecoverable Advance, any P&I Advances on a Mortgage Loan or REO Mortgage Loan from Late Collections made by the Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance has been or is being reimbursed, any related Advance Interest
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thereon, first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections), or (y) if after a Final Recovery Determination or determination in accordance with Section 4.4 that any P&I Advance is a Nonrecoverable Advance, any P&I Advances made on a Mortgage Loan or REO Mortgage Loan from funds on deposit in the Collection Account (regardless of whether such amount was recovered from the applicable Mortgage Loan or REO Property) and any Advance Interest thereon, first, from related Penalty Charges and Allocable Modification Fees in accordance with Section 5.2(b), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the Collection Account (including from general collections);
(iv) Servicing Fees, Special Servicer Compensation and Trust Advisor Fees: to pay to itself the Master Servicing Fee, subject to reduction for any Compensating Interest, to pay to the Special Servicer the Special Servicing Fee and the Workout Fee and to pay to the Trust Advisor the Trust Advisor Fee (exclusive of any TA Unused Fees) and any unpaid Trust Advisor Consulting Fees (but only to the extent such Trust Advisor Consulting Fees were received from the related Mortgagor);
(v) Trustee Fee, Custodian Fee and Certificate Administrator Fee: to pay to the Distribution Account for withdrawal by the Certificate Administrator for payment to itself, the Custodian and the Trustee, the Certificate Administrator Fee (inclusive of the Trustee Fee and the Custodian Fee);
(vi) Expenses of Trust: to pay to the Person entitled thereto (other than the Trust Advisor) any amounts specified herein to be Additional Trust Expenses (at the time set forth herein or in the definition thereof), and any other amounts that in fact constitute Additional Trust Expenses whose payment is not more specifically provided for in this Agreement; provided that the Depositor shall not be entitled to receive reimbursement for performing its duties under this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery Determination to pay to the Special Servicer from the Collection Account, the amount certified by the Special Servicer equal to the Liquidation Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself net income and gain realized on the investment of funds deposited in the Collection Account (including any Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the amount of the aggregate Prepayment Interest Excesses relating to Mortgage Loans which are not Specially Serviced Mortgage Loans, received during the most recently ended Collection Period (to the extent not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans incurred during the most recently ended Collection Period); and to pay to the Special Servicer the amount of the aggregate Prepayment Interest Excesses relating
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to Mortgage Loans that were Specially Serviced Mortgage Loans that were subject to voluntary Principal Prepayments during the most recently ended Collection Period (not from Liquidation Proceeds or from modifications to Specially Serviced Mortgage Loans), to the extent not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans incurred during the most recently ended Collection Period;
(x) CREFC® License Fee: to pay to CREFC (solely to the extent of funds available in the Collection Account following the withdrawal of the amounts described in clauses (i) through (ix) above), the CREFC® License Fee;
(xi) Correction of Errors: to withdraw funds deposited in the Collection Account in error;
(xii) Distribution Account: to make payment on each Master Servicer Remittance Date of the remaining amounts in the Collection Account (including any Excess Interest and Actual Recoveries of Trust Advisor Expenses) to the Distribution Account or applicable sub-account thereof (or in the case of any Excess Interest, deposit to the Excess Interest Sub-account under Section 5.3(b)), other than amounts held for payment in future periods or pursuant to clause (xiii) below;
(xiii) Certain Reserve Accounts: to make payments on each Master Servicer Remittance Date to (A) the Excess Liquidation Proceeds Reserve Account of any Excess Liquidation Proceeds not otherwise applied to pay Advance Interest and (B) the TA Unused Fees Reserve Account of any TA Unused Fees; and
(xiv) Clear and Terminate: to clear and terminate the Collection Account in connection with the termination of the Trust;
provided, that in the case of any Serviced B Note for which an A/B Whole Loan Custodial Account is required to be established by the Master Servicer:
(A) to the extent consistent with the related Intercreditor Agreement, the Master Servicer shall be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii) above, but only insofar as the payment or reimbursement described therein arises from or is related to the corresponding A/B Whole Loan and is allocable to (or, subject to lack of availability at the time, would otherwise have originally been paid out of collections on) such Serviced B Note pursuant to this Agreement or the related Intercreditor Agreement, and the Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts transferred to the related A/B Whole Loan Custodial Account in error, and amounts necessary for the clearing and termination of the Collection Account in connection with the termination of the Trust;
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(B) the Master Servicer shall be entitled to make transfers from time to time, from the related A/B Whole Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts not otherwise described in clause (A) above to which the holder of the related A Note is entitled under the related A/B Whole Loan and the related Intercreditor Agreement (including in respect of interest, principal and Prepayment Premiums in respect of the A Note, as applicable (whether or not by operation of any provision of the related Intercreditor Agreement that entitles the holder of such A Note to receive remittances in amounts calculated without regard to any modification, waiver or amendment of the economic terms of such A Note)); and
(C) unless otherwise set forth in the related Intercreditor Agreement, the Master Servicer shall on each Master Servicer Remittance Date remit to the holder of the related Serviced B Note all amounts on deposit in the applicable A/B Whole Loan Custodial Account (net of amounts permitted or required to be transferred therefrom as set forth in clauses (A) and/or (B) above), to the extent that the holder of such Serviced B Note is entitled thereto under the related Intercreditor Agreement (including by way of the operation of any provision of the related Intercreditor Agreement that entitles the holder of such Serviced B Note to reimbursement of cure payments made by it);
and provided, further, that in the case of any Serviced Companion Loan:
(A) to the extent consistent with the related Intercreditor Agreement, the Master Servicer shall be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iv), (vi), (vii) and (viii) above, but only insofar as the payment or reimbursement described therein arises from or is related to the corresponding Loan Pair and is allocable to, and may (in accordance with the related Intercreditor Agreement) be paid out of amounts otherwise payable to the holder of, the related Serviced Companion Loan, and the Master Servicer shall also be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any Custodial Account, of amounts transferred to the related Serviced Companion Loan Custodial Account in error, and amounts necessary for the clearing and termination of the Collection Account in connection with the termination of the Trust;
(B) the Master Servicer shall be entitled to make transfers from time to time, from the related Serviced Companion Loan Custodial Account to the portion of the Collection Account that does not constitute any such Custodial Account, of amounts not otherwise described in clause (A) above to which the holder of the related Serviced Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement (including in respect of interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, on either (x) the date set forth in the related Intercreditor Agreement for remittances (or, if none, on the first (1st) Business Day after
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receipt of properly identified funds (provided, that if any such amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such funds within one (1) Business Day of receipt of such amounts but, in any event, the Master Servicer shall remit such funds within two (2) Business Days of receipt of such amounts)) or (y) such other date as may be agreed to between the Master Servicer and the holder of the related Serviced Companion Loan (in their respective sole discretion), remit to the holder of the related Serviced Companion Loan all amounts on deposit in the related Serviced Companion Loan Custodial Account (net of amounts permitted or required to be transferred therefrom as set forth in clauses (A) and/or (B) above), to the extent that the holder of such Serviced Companion Loan is entitled thereto under the related Intercreditor Agreement.
The Master Servicer shall pay to each of the Special Servicer (or, in the case of an emergency, to third party contractors at the written direction of the Special Servicer), the Trust Advisor, the Custodian, the Trustee and the Certificate Administrator, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt on or prior to the related Determination Date of a written statement of an officer of the Special Servicer, an officer of the Trust Advisor or a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, describing the item and amount to which the Special Servicer (or, in the case of an emergency, such third party contractor), the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, is entitled (unless such payment to the Special Servicer, the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate or investigate (absent manifest error) the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis.
No decision by the Master Servicer or the Trustee under either this Section 5.2(a)(I) or subsection (iv) of Section 5.2(a)(II), to defer the reimbursement of Advances and/or Advance Interest shall be construed as an agreement by the Master Servicer to subordinate (in respect of realizing losses), to any Class of Certificates, such party’s right to such reimbursement during such period of deferral.
Expenses incurred with respect to any A/B Whole Loan or Loan Pair shall be allocated in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents). The Master Servicer shall keep and maintain a separate accounting for each Mortgage Loan, Serviced Companion Loan and Serviced B Note for the purpose of justifying any withdrawal or transfer from the Collection Account and any Custodial Account, as applicable. If funds collected in respect of the A Notes (or, in the case of a Loan Pair with a Serviced B Note, if any, in respect of the related Mortgage Loan and Serviced Companion Loan(s)) are insufficient to pay the Master Servicing Fee in respect thereof, then the Master Servicer shall be entitled to withdraw the amount of such shortfall from the collections on, and other proceeds of, the Serviced B Note that are held in the related Custodial Account. The
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Master Servicer shall not be permitted to withdraw any funds from the portion of the Collection Account that does not constitute such Custodial Account unless there are no remaining funds in such Custodial Account available and required to be paid in accordance with the related Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this Section 5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts. If any Advance made with respect to any Mortgage Loan on or before the date on which such Mortgage Loan becomes (or, but for the requirement that the Mortgagor shall have made three (3) consecutive scheduled payments under its modified terms, would then constitute) a Rehabilitated Mortgage Loan, together with Advance Interest accrued thereon, is not, pursuant to the operation of the provisions of Section 5.2(a)(I), reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance, together with such Advance Interest, shall constitute a “Workout-Delayed Reimbursement Amount” to the extent that such amount has not been determined to constitute a Nonrecoverable Advance. All references herein to “Workout-Delayed Reimbursement Amount” shall be construed always to mean the related Advance and any Advance Interest thereon, together with any further Advance Interest that accrues on the unreimbursed portion of such Advance from time to time in accordance with the other provisions of this Agreement. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine that such amount instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below (subject to the terms and conditions thereof) sets forth the terms of and conditions to the right of a Person to be reimbursed for any Workout-Delayed Reimbursement Amount to the extent that such Person is not otherwise entitled to reimbursement and payment of such Workout-Delayed Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above. Subsection (iv) below (subject to the terms and conditions thereof) authorizes the Master Servicer to abstain from reimbursing itself (or, if applicable, the Trustee to abstain from obtaining reimbursement) for Nonrecoverable Advances under certain circumstances at its sole option. Upon any determination that all or any portion of a Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance, then the reimbursement or payment of such amount (and any further Advance Interest that may accrue thereon) shall cease to be subject to the operation of subsection (iii) below, such amount (and further Advance Interest) shall be as fully payable and reimbursable to the relevant Person as would any other Nonrecoverable Advance (and Advance Interest thereon) and, as a Nonrecoverable Advance, such amount may become the subject of the Master Servicer’s (or, if applicable, the Trustee’s) exercise of its sole option authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to
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reimbursement and payment for all Workout-Delayed Reimbursement Amounts in each Collection Period; provided that the aggregate amount (for all such Persons collectively) of such reimbursements and payments in such Collection Period shall not exceed (and the reimbursement and payment shall be made from) the aggregate amount in the Collection Account allocable to principal received with respect to the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances) and net of any Nonrecoverable Advances then outstanding and reimbursable from such principal in accordance with Section 5.2(a)(II)(iv) below. As and to the extent provided in clause (II)(A) of the definition thereof, the Principal Distribution Amount for the Distribution Date related to such Collection Period shall be reduced to the extent that such payment or reimbursement of a Workout-Delayed Reimbursement Amount is made from the aggregate amount in the Collection Account allocable to principal pursuant to the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to Abstain from Reimbursements of Certain Nonrecoverable Advances. To the extent that Section 5.2(a)(I) otherwise entitles each of the Master Servicer, the Special Servicer and the Trustee to reimbursement for any Nonrecoverable Advance (or payment of Advance Interest thereon from a source other than Penalty Charges and Allocable Modification Fees on the related Mortgage Loan) during any Collection Period, then, notwithstanding any contrary provision of subsection (I) above, (a) to the extent that one or more such reimbursements and payments of Nonrecoverable Advances (and such Advance Interest thereon) are made, such reimbursements and payments shall be made, first, from the aggregate amount in the Collection Account allocable to principal received with respect to the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances, and prior to any deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that were reimbursed or paid during the related Collection Period from amounts allocable to principal received with respect to the Mortgage Loans, as described by clause (II)(A) of the definition of Principal Distribution Amount and pursuant to subsection (iii) of Section 5.2(a)(II)), and then from other collections (including interest) on the Mortgage Loans for such Collection Period, and (b) if and to the extent that the amount of such a Nonrecoverable Advance (and Advance Interest thereon), together with all Nonrecoverable Advances (and Advance Interest thereon) theretofore reimbursed during such Collection Period, would exceed such principal on the Mortgage Loans for such Collection Period (and Advance Interest thereon), the Master Servicer (and the Trustee, if it made the relevant Advance) is hereby authorized (but shall not be construed to have any obligation whatsoever), if it elects at its sole option, to abstain from reimbursing itself (notwithstanding that it is entitled to such reimbursement) during that Collection Period for all or a portion of such Nonrecoverable Advance (and Advance Interest thereon), provided that the aggregate amount that is deferred with respect to all Nonrecoverable Advances (and Advance Interest thereon) with respect to all Mortgage Loans for any particular Collection Period is less than or equal to such excess described above in this clause (b). If the Master Servicer (or the Trustee) makes such an election at its sole option to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (and Advance Interest thereon), then such
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Nonrecoverable Advance (and Advance Interest thereon) or portion thereof shall continue to be fully reimbursable in any subsequent Collection Period to the same extent as set forth above. In connection with a potential election by the Master Servicer or the Trustee to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the Master Servicer (or the Trustee) shall further be authorized to wait for principal collections to be received before making its determination of whether to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof until the end of the Collection Period.
None of the Master Servicer or the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this subsection (II)(iv). The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this subsection (II)(iv) or to comply with the terms of this subsection (II)(iv) and the other provisions of this Agreement that apply once such an election, if any, has been made.
Any election by the Master Servicer (or the Trustee) to abstain from reimbursing itself for any Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with respect to any Collection Period shall not be construed to impose on the Master Servicer (or the Trustee) any obligation to make such an election (or any entitlement in favor of any Certificateholder or any other Person to such an election) with respect to any subsequent Collection Period or to constitute a waiver or limitation on the right of the Master Servicer (or the Trustee) to otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest thereon). Any election by the Master Servicer or the Trustee to abstain from reimbursing itself for any Nonrecoverable Advance or portion thereof with respect to any one or more Collection Periods shall not limit the accrual of Advance Interest on the unreimbursed portion of such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. None of the Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any holder of a Serviced B Note or Serviced Companion Loan for any such election that such party makes as contemplated by this subsection or for any losses, damages or other adverse economic or other effects that may arise from such an election. The foregoing statements in this paragraph shall not limit the generality of the statements made in the immediately preceding paragraph. Notwithstanding the foregoing, neither the Master Servicer nor the Trustee shall have the right to abstain from reimbursing itself for any Nonrecoverable Advance to the extent of the amount described in clause (I)(A) of the definition of Principal Distribution Amount. Notwithstanding anything to the contrary contained herein, neither the Master Servicer nor the Trustee may abstain from reimbursing itself for any particular Nonrecoverable Advance for a period in excess of twelve (12) months, and during any Subordinate Control Period and any Collective Consultation Period, neither the Master Servicer nor the Trustee may abstain from reimbursing itself for any particular Nonrecoverable Advance for a period in excess of six (6) months without the consent of the Controlling Class Representative.
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(v) Reimbursement Rights of the Master Servicer, Special Servicer and Trustee Are Senior. Nothing in this Agreement shall be deemed to create in any Certificateholder a right to prior payment of distributions over the Master Servicer’s, the Special Servicer’s or the Trustee’s right to reimbursement for Advances plus Advance Interest (whether those that constitute Workout-Delayed Reimbursement Amounts, those that have been the subject of the Master Servicer’s election authorized in subsection (iv) or otherwise).
(b) On each Master Servicer Remittance Date, the Master Servicer shall withdraw from the Collection Account and apply as follows all Penalty Charges (subject to any allocation provision with respect to Penalty Charges in any related Intercreditor Agreement) and Allocable Modification Fees (in that order) received with respect to a Mortgage Loan or, unless otherwise required to be paid to the holder thereof pursuant to the related Intercreditor Agreement, a Serviced Companion Loan or Serviced B Note during the most recently ended Collection Period:
(i) first, to pay or reimburse the Master Servicer, the Special Servicer and/or the Trustee, as applicable, for all outstanding Nonrecoverable Advances (together with all unpaid Advance Interest on such Nonrecoverable Advances), all unpaid Advance Interest on any other Advances and any other outstanding Additional Trust Expenses, in each case, with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan;
(ii) second, as a reimbursement to the Trust of all Advances (and related Advance Interest) with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan previously determined to be Nonrecoverable Advances and previously reimbursed to the Master Servicer, the Special Servicer and/or Trustee, as applicable, from amounts (other than related Penalty Charges and Allocable Modification Fees) on deposit in the Collection Account (and such amounts will be retained or deposited in the Collection Account as recoveries of such Nonrecoverable Advances and related Advance Interest);
(iii) third, as a reimbursement to the Trust of all other Additional Trust Expenses with respect to such Mortgage Loan or, if applicable, the related Loan Pair or A/B Whole Loan previously paid from the Collection Account (and such amounts will be retained or deposited in the Collection Account as recoveries of such Additional Trust Expenses); and
(iv) fourth, to pay any remaining Penalty Charges and Allocable Modification Fees to the Master Servicer and/or the Special Servicer, as applicable, as compensation as set forth in either Section 8.10 or Section 9.11, as applicable.
(c) With respect to any Master Servicer Remittance Date, Scheduled Payments due in a Collection Period succeeding the Collection Period relating to such Master Servicer Remittance Date, Principal Prepayments received after the related Collection Period, or other amounts not distributable on the related Distribution Date, shall be held in the Collection Account (or a sub-account thereof) and shall be remitted to the Distribution Account on the
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applicable successive Master Servicer Remittance Date or Dates. The Master Servicer shall use commercially reasonable efforts to remit to the Distribution Account on any Master Servicer Remittance Date for a Collection Period any Balloon Payments received during the period that begins two (2) Business Days immediately preceding the related Master Servicer Remittance Date and ends on such Master Servicer Remittance Date. In connection with the deposit of any Balloon Payments to the Distribution Account in accordance with the immediately preceding sentence, the Master Servicer shall promptly notify the Certificate Administrator and the Certificate Administrator shall, if it has already reported anticipated distributions to the Depository, use commercially reasonable efforts to cause the Depository to make the revised distribution on a timely basis on such Distribution Date. Neither the Master Servicer nor the Certificate Administrator shall be liable or held responsible for any resulting delay or failure in the making of such distribution to Certificateholders. For purposes of the definitions of “Available Distribution Amount” and “Principal Distribution Amount,” any Balloon Payments that are received prior to the Master Servicer Remittance Date in any Collection Period but are includable in the distributions on the Distribution Date in such Collection Period as provided above, shall each be deemed to have been collected in the prior Collection Period.
Section 5.3 Distribution Account and Reserve Accounts.
(a) The Certificate Administrator, on behalf of the Trustee shall establish (with respect to clause (i) and clause (ii), on or prior to the Closing Date, and with respect to clause (iii) and clause (iv), on or prior to the date the Certificate Administrator determines is necessary) and maintain in its name, on behalf of the Trustee, (i) an account (the “Distribution Account”), to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “Wells Fargo Bank, National Association, as Certificate Administrator on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Distribution Account”, (ii) an account (the “Interest Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “Wells Fargo Bank, National Association, as Certificate Administrator on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Interest Reserve Account”, (iii) an account (the “Excess Liquidation Proceeds Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “Wells Fargo Bank, National Association, as Certificate Administrator on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Excess Liquidation Proceeds Reserve Account”, and (iv) an account (the “TA Unused Fees Reserve Account”) to be held for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled: “Wells Fargo Bank, National Association, as Certificate Administrator on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, TA Unused Fees Reserve Account”. The Distribution Account and the Reserve Accounts shall be Eligible Accounts. The Distribution Account and the Reserve Accounts shall be held separate and apart from and shall not be commingled with any other monies of or held by the Certificate Administrator, it being understood, however, that each
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Reserve Account shall be a subaccount of the Distribution Account. For the avoidance of doubt, the Distribution Account (other than any Excess Interest (whether now or hereafter arising) and the Excess Interest Sub-account, which shall be assets of the Grantor Trust) and each Reserve Account (including interest, if any, earned on the investment of funds in such accounts) shall be owned by REMIC III for federal income tax purposes.
Funds in the Distribution Account and the Reserve Accounts shall remain uninvested.
(b) The Certificate Administrator shall deposit into the Distribution Account, the Excess Liquidation Proceeds Reserve Account or the TA Unused Fees Reserve Account, as applicable, on the Business Day received all moneys remitted by the Master Servicer pursuant to this Agreement, including P&I Advances made by the Master Servicer and the Trustee, payments of Compensating Interest made by the Master Servicer and all Excess Liquidation Proceeds. The Certificate Administrator shall deposit amounts constituting collections of Excess Interest on the Mortgage Loans into the Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master Servicer shall have no duty to remit to the Distribution Account any amounts other than amounts held in the Collection Account and collected during the related Collection Period as provided in clauses (v) and (xii) of Section 5.2(a)(I) and the P&I Advance Amount.
Except with respect to the final Distribution Date, the Certificate Administrator, with respect to each Distribution Date occurring in January of each year (other than in any leap year and commencing in 2017) and February of each year (commencing in 2016), shall withdraw from the Distribution Account (to the extent of available funds) and deposit in the Interest Reserve Account in respect of each Interest Reserve Loan, an amount equal to one (1) day’s interest at the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date in the month in which such Distribution Date occurs, to the extent a Scheduled Payment or P&I Advance is timely made in respect thereof for such Due Date (all amounts so deposited in any January and/or February in respect of each Interest Reserve Loan, “Interest Reserve Amounts”).
The Certificate Administrator shall make withdrawals from the Distribution Account (including the Excess Interest Sub-account), the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account in error and pay such amounts to the Persons entitled thereto;
(ii) in the case of the Distribution Account only, to pay any amounts payable to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee any fees, indemnification payments, other expenses or other amounts permitted to be paid hereunder and not previously paid to such Persons pursuant to Section 5.2;
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(iii) to make distributions to the Certificateholders pursuant to Sections 6.5, 6.10 and/or 11.1, as applicable;
(iv) in the case of the Distribution Account and the TA Unused Fees Reserve Account only, to reimburse the Trust Advisor for any indemnification payments or expenses payable to the Trust Advisor hereunder solely from amounts otherwise allocable to the Principal Balance Certificates that are not Control Eligible Certificates or Actual Recoveries of Trust Advisor Expenses or TA Unused Fees, in each case pursuant to, and subject to the limitations set forth in, this Agreement; and
(v) to clear and terminate the Distribution Account and the Reserve Accounts pursuant to Section 11.2.
On each Master Servicer Remittance Date in March of every year commencing in March 2016 (and on any other Master Servicer Remittance Date related to the final Distribution Date), the Certificate Administrator shall withdraw all Interest Reserve Amounts then in the Interest Reserve Account and deposit such amounts into the Distribution Account.
Section 5.4 Certificate Administrator Reports.
(a) On or prior to each Distribution Date, based on information provided in monthly reports prepared by the Master Servicer and the Special Servicer and delivered to the Certificate Administrator by the Master Servicer (no later than 2:00 p.m., New York time on the Advance Report Date), the Certificate Administrator shall prepare and make available to the general public on the Certificate Administrator’s Website (or, upon written request from any Certificateholder or Certificate Owner, provide to the requesting party, by first class mail) (i) the Distribution Date Statement for such Distribution Date, and (ii) a report containing information regarding the Mortgage Loans as of the end of the related Collection Period, which report shall be presented in tabular format substantially similar to the format utilized in Exhibit K hereto, which report may be included as part of the Distribution Date Statement.
In addition, the Certificate Administrator, to the extent received by it, shall make available each month via the Certificate Administrator’s Website, to any Privileged Person (provided that the Final Prospectus, this Agreement, the Distribution Date Statements and the Exchange Act Filings will be made available to the general public), or in the case of item (vii) below, solely to Certificateholders and Certificate Owners, the following items (provided that with respect to items not prepared by the Certificate Administrator, the Certificate Administrator shall be required to make such items available only to the extent it has received such items in a readable, uploadable and unlocked electronic format (including, HTML, Word, Excel or searchable PDF)):
(i) the following “deal documents”:
(A) the Final Prospectus and the Private Placement Memorandum;
(B) this Agreement, each sub-servicing agreement delivered to the Certificate Administrator since the Closing Date (if any), the Mortgage Loan Purchase Agreements and any amendments and exhibits hereto or thereto; and
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(C) the CREFC® Loan Setup File;
(ii) the Exchange Act Filings;
(iii) the following “periodic reports”:
(A) the Distribution Date Statement;
(B) CREFC® Reports, in each case, to the extent the Certificate Administrator has received or prepared such report or file (other than the CREFC® Loan Setup File); and
(C) any Trust Advisor Annual Reports;
(iv) the following “additional documents”:
(A) the summary of any Final Asset Status Report delivered to the Certificate Administrator pursuant to Section 10.5(a) of this Agreement; and
(B) any other Third Party Reports (or updates thereto) delivered to the Certificate Administrator in electronic format;
(v) the following “special notices”:
(A) all Special Notices;
(B) notice of any waiver, modification or amendment of any term of any Mortgage Loan;
(C) notice of final payment on the Certificates;
(D) all notices of the occurrence of any Servicer Termination Events, in the case of the Master Servicer, or events described in Section 9.30(b), in the case of the Special Servicer, or Trust Advisor Termination Events, in the case of the Trust Advisor, received by the Certificate Administrator;
(E) notice of termination or resignation of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (and notice of acceptance of appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee);
(F) any and all Officer’s Certificates and other evidence delivered to the Certificate Administrator to support the Master Servicer’s, the Trustee’s or the Special Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(G) any notice of the termination of the Trust;
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(H) all of the annual compliance statements and annual assessments as to compliance delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.9 and Section 13.10, respectively;
(I) all of the annual independent public accountants’ servicing reports caused to be delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.11;
(J) any reports delivered to the Certificate Administrator by the Trust Advisor in connection with its review of the Special Servicer’s Appraisal Reduction and net present value calculations pursuant to Section 10.5;
(K) any recommendation received by the Certificate Administrator from the Trust Advisor for the termination of the Special Servicer during any period when the Trust Advisor is entitled to make such a recommendation, and any direction of the Holders of Certificates evidencing the requisite percentage of Voting Rights to terminate the Special Servicer in response to such recommendation;
(L) notice of any request by the Holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer or notice of any request by the Holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Trust Advisor; and
(M) any other information delivered to the Certificate Administrator pursuant to any other section of this Agreement, which other section expressly provides for posting of such information on the Certificate Administrator’s Website; and
(N) any notice of the commencement or cessation of a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period;
(vi) the Investor Q&A Forum; and
(vii) solely to Certificateholders and Certificate Owners, the Investor Registry.
The Certificate Administrator makes no representations or warranties as to the accuracy or completeness of such information and assumes no responsibility therefor. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by the Certificate Administrator for which it is not the original source. In connection with providing access to the Certificate Administrator’s Website, the Certificate Administrator may require registration and acceptance of a disclaimer that the Certificate Administrator will make no representations or warranties as to the accuracy or completeness of information provided by it that was based, in whole or in part, on information received from third parties, and will assume no responsibility for them. The Certificate Administrator shall not be liable for the dissemination of information in accordance with this Agreement.
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The Certificate Administrator may provide such information through means other than (and in lieu of) the Certificate Administrator’s Website; provided that (i) the Depositor shall have consented to such alternative means and (ii) Certificateholders and the holders of Serviced Companion Loans (but only for purposes of any such holder receiving information regarding its Serviced Companion Loan) shall have received notice of such alternative means (which notice may be given via the Certificate Administrator’s Website).
Any Certificateholder or Certificate Owner that is a Mortgagor, a Manager, an Affiliate of a Mortgagor or a Manager, or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing, shall be entitled to access only the Final Prospectus, the Distribution Date Statements, this Agreement and the Exchange Act Reports on the Certificate Administrator’s Website. The provisions in this section shall not limit the Master Servicer’s ability to make accessible certain information (other than Privileged Information) regarding the Mortgage Loans at a website maintained by the Master Servicer. The Certificate Administrator shall require an Investor Certification from any Certificateholder, Certificate Owner or prospective transferee of a Certificate or interest therein that requests access to any Non-Public Information.
(b) Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate a statement containing the information as to the applicable Class set forth in clauses (a), (b), (j) and (s) of the definition of “Distribution Date Statement” aggregated for such calendar year or applicable portion thereof during which such person was a Certificateholder, together with such other information as the Certificate Administrator determines to be necessary to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.
(c) The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where Certificateholders, Certificate Owners and prospective purchasers of Certificates may (i)(A) submit questions to the Certificate Administrator relating to the Distribution Date Statement, (B) submit questions to the Master Servicer or the Special Servicer, as applicable, relating to the servicing reports prepared by that party and being made available pursuant to this Section 5.4, the Mortgage Loans, the A/B Whole Loans, the Loan Pairs or the Mortgaged Properties and (C) submit questions to the Trust Advisor relating to any Trust Advisor Annual Reports or actions by the Special Servicer referenced in any Trust Advisor Annual Report (collectively, “Inquiries”), and (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the Trust Advisor, the Master Servicer or the Special Servicer, the Certificate Administrator shall forward the Inquiry to the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of an Inquiry, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Trust Advisor, the
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Master Servicer or Special Servicer shall be by email to the Certificate Administrator. The Certificate Administrator shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry with the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) any Inquiry is not of a type described above, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, this Agreement (including the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement) or the applicable Mortgage Loan documents, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, or (v) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the Trust Advisor, the Master Servicer or the Special Servicer, shall promptly notify the Certificate Administrator. The Certificate Administrator shall notify the Person who submitted such Inquiry if the Inquiry will not be answered. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature, and no party shall post or otherwise disclose direct communications with the Controlling Class Representative or a Loan-Specific Directing Holder as part of its response to any Inquiries. The Investor Q&A Forum will not reflect questions, answers and other communications which are not submitted via the Certificate Administrator’s Website. Answers posted on the Investor Q&A Forum shall be attributable only to the respondent, and no other Person will have any responsibility or liability for the content of any such information, nor will any other Person certify as to the accuracy of any of the information posted in the Investor Q&A Forum that is based, in whole or in part, on information received from third parties. Rating Agencies and other NRSROs that provide an NRSRO Certification may have access to the Investor Q&A Forum but will not have a means to submit questions on the Investor Q&A Forum. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Q&A Forum.
(d) The Certificate Administrator shall make available to any Certificateholder and Certificate Owner (other than a Mortgagor, a Manager, an Affiliate of a Mortgagor or a Manager, or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing), the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Certificate Owners can register and thereafter obtain information with respect to any other Certificateholder or Certificate Owner that has so registered. Any person registering to use the Investor Registry will be required to certify that (a) it is a Certificateholder or a Certificate Owner and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such certification to other registered Certificateholders and registered Certificate Owners. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Certificate Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be
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within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry. Rating Agencies and other NRSROs shall not have access to the Investor Registry.
(e) Notwithstanding the foregoing, in no event shall any provision of this Agreement be construed to require the Master Servicer, the Special Servicer or the Certificate Administrator to produce any ad hoc or non-standard written reports (in addition to the CREFC® Reports, inspection reports and other specific periodic reports otherwise required). If the Master Servicer, the Special Servicer or the Certificate Administrator elects to provide any ad hoc or non-standard reports, it may require the Person requesting such report to pay a reasonable fee to cover the costs of the preparation thereof.
(f) Upon filing with the Internal Revenue Service, the Certificate Administrator shall furnish to the Holders of the Class R Certificates the Form 1066 for each REMIC Pool and shall furnish their respective Schedules Q thereto at the times required by the Code or the Internal Revenue Service, and shall provide from time to time such information and computations with respect to the entries on such forms as any Holder of the Class R Certificates may reasonably request.
(g) The specification of information to be furnished by the Certificate Administrator in this Section 5.4 (and any other terms of this Agreement requiring or calling for delivery or reporting of information by the Certificate Administrator to Certificateholders and Certificate Owners) shall not limit the Certificate Administrator in furnishing, and the Certificate Administrator is hereby authorized to furnish, to any Privileged Person any other information (such other information, collectively, “Additional Information”) with respect to the Mortgage Loans, the A/B Whole Loans, the Loan Pairs, the Mortgaged Properties or the Trust as may be provided to it by the Depositor, the Master Servicer or the Special Servicer or gathered by it in any investigation or other manner from time to time, provided that (A) while there exists any Servicer Termination Event, any such Additional Information shall only be furnished with the consent or at the request of the Depositor (to the extent such information is requested by a Certifying Certificateholder), (B) the Certificate Administrator shall be entitled to indicate the source of all information furnished by it, and the Certificate Administrator may affix thereto any disclaimer it deems appropriate in its sole discretion (together with any warnings as to the confidential nature and/or the uses of such information as it may, in its sole discretion, determine appropriate), (C) the Certificate Administrator may notify any Privileged Person of the availability of any such information in any manner as it, in its sole discretion, may determine, (D) the Certificate Administrator shall be entitled (but not obligated) to require payment from each recipient of a reasonable fee for, and its out of pocket expenses incurred in connection with, the collection, assembly, reproduction or delivery of any such Additional Information, (E) the Certificate Administrator shall be entitled to distribute or make available such Additional Information in accordance with such reasonable rules and procedures as it may deem necessary or appropriate (which may include the requirement that an agreement that provides such information shall be used solely for purposes of evaluating the investment characteristics or valuation of the Certificates be executed by the recipient, if and to the extent the Certificate
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Administrator deems the same to be necessary or appropriate), and (F) the delivery of Additional Information shall in no event violate the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement. Nothing herein shall be construed to impose upon the Certificate Administrator any obligation or duty to furnish or distribute any Additional Information to any Person in any instance, and the Certificate Administrator shall neither have any liability for furnishing nor for refraining from furnishing Additional Information in any instance. The Certificate Administrator shall be entitled (but not required) to request and receive direction from the Depositor as to the manner of delivery of any such Additional Information, if and to the extent the Certificate Administrator deems necessary or advisable, and to require that any consent, direction or request given to it pursuant to this Section be made in writing. The Certificate Administrator shall not be obligated to determine whether any information submitted or delivered to it constitutes Privileged Information, and shall not have any liability for posting to the Certificate Administrator’s Website any Privileged Information received from a third party in accordance with this Agreement, unless such Privileged Information is clearly identified as such to the Certificate Administrator upon delivery thereto. The Master Servicer, the Special Servicer and the Trust Advisor shall not deliver any Privileged Information to the Certificate Administrator.
(h) The Depositor hereby authorizes the Certificate Administrator to make available to the Financial Market Publishers or such other vendor chosen by the Depositor upon delivery by such vendor to the Certificate Administrator of a certification in the form of Exhibit M hereto, all the Distribution Date Statements, CREFC® Reports and supplemental notices delivered or made available pursuant to this Section 5.4 to Privileged Persons.
(i) Subject to Section 8.15, upon advance written request, if required by federal regulation, of any Certificateholder (or holder of a Serviced Companion Loan or Serviced B Note) that is a savings association, bank, or insurance company, the Certificate Administrator shall provide (to the extent in its possession) to each such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) such reports and access to non-privileged information and documentation regarding the Mortgage Loans and the Certificates as such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) may reasonably deem necessary to comply with applicable regulations of the Office of Thrift Supervision or successor or other regulatory authorities with respect to investment in the Certificates; provided that the Certificate Administrator shall be entitled to be reimbursed by such Certificateholder (or such holder of a Serviced Companion Loan or Serviced B Note) for the Certificate Administrator’s actual expenses incurred in providing such reports and access. The holder of a Serviced B Note shall be entitled to receive information and documentation only with respect to its related A/B Whole Loan, and the holder of a Serviced Companion Loan shall be entitled to receive information and documentation only with respect to its related Loan Pair, pursuant hereto.
(j) Any party hereto may at any time request from the Certificate Administrator written confirmation of whether there existed a Senior Consultation Period or Collective Consultation Period during the previous calendar year, and the Certificate Administrator shall deliver such confirmation to such party within ten (10) days of such request. In addition, the Certificate Administrator shall notify the Trust Advisor, the Master Servicer and
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the Special Servicer within ten (10) days of the commencement or cessation of any Senior Consultation Period, Collective Consultation Period or Subordinate Control Period.
(k) Upon request and delivery by CREFC® of a certification in the form of Exhibit M hereto, the Certificate Administrator shall make available to CREFC®, with respect to any Distribution Date, the related Distribution Date Statement and CREFC® Investor Reporting Package.
Section 5.5 Certificate Administrator Tax Reports. The Certificate Administrator shall perform all reporting and other tax compliance duties that are the responsibility of each REMIC Pool and the Grantor Trust under the Code, REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority. Consistent with this Agreement, the Certificate Administrator shall provide or cause to be provided (i) to the United States Treasury or other Persons (including, but not limited to, the Transferor of a Class R Certificate to a Disqualified Organization or to an agent that has acquired a Class R Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class R Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or REMIC Provisions; in the case of (i), subject to reimbursement of expenses relating thereto in accordance with Section 7.12. The Master Servicer shall on a timely basis provide the Certificate Administrator with such information concerning the Mortgage Loans as is necessary for the preparation of the tax or information returns or receipts of each REMIC Pool and the Grantor Trust as the Certificate Administrator may reasonably request from time to time. The Special Servicer is required to provide to the Master Servicer all information in its possession with respect to the Specially Serviced Mortgage Loans in order for the Master Servicer to comply with its obligations under this Section 5.5. The Certificate Administrator shall be entitled to conclusively rely on any such information provided to it by the Master Servicer or the Special Servicer and shall have no obligation to verify any such information.
Section 5.6 Access to Certain Information.
(a) The Certificate Administrator and the Custodian shall afford to any Privileged Person access to any documentation (other than Privileged Information identified as such to the Certificate Administrator upon delivery thereto) regarding the Mortgage Loans or the other assets of the Trust that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.
(b) The Certificate Administrator (or, in the case of item (viii) below, the Custodian) shall maintain at its offices (and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available) for review by any Privileged Person (subject to Section 5.7 in the case of a Rating Agency) originals and/or copies (in paper or electronic form) of the following items (to the extent such items were prepared by or delivered to the Certificate Administrator and do not constitute Privileged Information identified as such to the Certificate Administrator upon delivery thereto):
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(i) the Final Prospectus and the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;
(ii) this Agreement, each sub-servicing agreement delivered to the Certificate Administrator since the Closing Date (if any), the Mortgage Loan Purchase Agreements and any amendments and exhibits hereto or thereto;
(iii) all Distribution Date Statements and all CREFC® Reports actually delivered or otherwise made available to Certificateholders pursuant to Section 5.4 of this Agreement since the Closing Date;
(iv) all annual statements of compliance and annual assessments as to compliance delivered to the Certificate Administrator since the Closing Date pursuant to Sections 13.9 and 13.10, respectively;
(v) all annual independent public accountants’ servicing reports caused to be delivered to the Certificate Administrator since the Closing Date pursuant to Section 13.11;
(vi) the most recent inspection report prepared by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator in respect of each Mortgaged Property pursuant to Section 8.17 or Section 9.3 of this Agreement;
(vii) any and all notices and reports delivered to the Certificate Administrator with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 9.12(c) of this Agreement revealed that none of the conditions set forth in clauses (i), (ii) and (iii) thereof was satisfied;
(viii) the Mortgage File, including any and all modifications, waivers and amendments of the terms of the Mortgage Loans (or the A/B Whole Loans or Loan Pairs) entered into or consented to by the Master Servicer or Special Servicer and delivered to the Certificate Administrator pursuant to Section 8.18 or Section 9.5 of this Agreement;
(ix) the annual, quarterly and monthly operating statements, if any, collected by or on behalf of the Master Servicer or the Special Servicer, as applicable, and delivered to the Certificate Administrator for each Mortgaged Property, together with the other information specified in Section 8.14 of this Agreement;
(x) any and all Officer’s Certificates and other evidence delivered to the Certificate Administrator to support the Master Servicer’s, the Special Servicer’s or the Trustee’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;
(xi) notice of termination or resignation of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (and appointments of successors thereto);
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(xii) all Special Notices;
(xiii) any Third Party Reports (or updates of Third Party Reports) delivered to the Certificate Administrator;
(xiv) each of the other documents made available by the Certificate Administrator under Section 5.4(a) on the Certificate Administrator’s Website and not otherwise listed in this Section 5.6(b); and
(xv) any other information in the possession of the Certificate Administrator that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act.
The Certificate Administrator shall provide, or cause to be provided, copies of any and all of the foregoing items upon reasonable written request of any of the parties set forth in the previous sentence.
None of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor or the Trustee shall be liable for its dissemination of information in accordance with the terms of this Agreement or for others providing or disseminating information in violation of the terms of this Agreement.
In connection with its duties or exercise of its rights under this Agreement, LNR Partners, LLC and LNR Securities Holdings, LLC (i) shall not directly or indirectly provide any confidential or Privileged Information related to any Excluded Mortgage Loan to the related Mortgagor, or to any employee involved in the management or oversight of the related direct or indirect equity investment that gives rise to the related Mortgage Loan’s status as an Excluded Mortgage Loan, and (ii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.
Section 5.7 Exchange Act Rule 17g-5 Procedures.
(a) Except as otherwise expressly and specifically provided in this Agreement or as required by law, none of the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Certificate Registrar, the Trustee or the Custodian shall provide any information relevant to the Rating Agencies’ surveillance of the Certificates or the Mortgage Loans directly to, or communicate with, either orally or in writing, any Rating Agency regarding the Certificates or the Mortgage Loans, including, but not limited to, providing responses to inquiries from a Rating Agency regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates. To the extent that a Rating Agency makes an inquiry or initiates communications with any such party regarding the Certificates or the Mortgage Loans relevant to such Rating Agency’s surveillance of the Certificates, all responses to such inquiries or communications from such Rating Agency shall be made in writing by the responding party and delivered to the 17g-5 Information Provider electronically as provided in Section 5.7(g), which written response the 17g-5 Information Provider shall post to the 17g-5 Information Provider’s Website within two (2) Business Days of receipt; provided that the foregoing shall not apply to Inquiries and responses thereto submitted and answered pursuant to the “Rating Agency Q&A Forum and Document Request Tool”.
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(b) To the extent that any party to this Agreement is required to provide any information to, or communicate with, any Rating Agency in accordance with its obligations under this Agreement or applicable law, such party shall provide such information or communication to the 17g-5 Information Provider electronically as provided in Section 5.7(g), and the 17g-5 Information Provider shall upload such information or communication to the 17g-5 Information Provider’s Website within two (2) Business Days of receipt. The foregoing shall include any Rating Agency Communication provided pursuant to this Agreement. The 17g-5 Information Provider shall notify each other party to this Agreement in writing of any change in the identity or contact information of the 17g-5 Information Provider. Any Rating Agency Confirmation request shall be made in accordance with Section 1.7.
In connection with the delivery by the Master Servicer or Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify (which may include automatic electronic notifications) the Master Servicer or Special Servicer when such information, report, notice or document has been posted. The Master Servicer or Special Servicer, as applicable, may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency following the earlier of (a) receipt of such notice from the 17g-5 Information Provider and (b) two (2) Business Days following delivery to the 17g-5 Information Provider.
(c) Each 17g-5 Indemnifying Party hereby expressly agrees to indemnify and hold harmless the Depositor, the Sellers, the Underwriters, the Initial Purchasers and their respective Affiliates, directors, officers, employees, members, managers and agents, and the Trust (each, for purposes of this Section 5.7(c), a “17g-5 Indemnified Party”), from and against any and all losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses), to which any such 17g-5 Indemnified Party may become subject, under the Securities Act, the Exchange Act, by contract or otherwise, insofar as such losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses) arise out of or are based upon (i) such 17g-5 Indemnifying Party’s breach of Section 5.7(a), Section 5.7(b), Section 5.7(f) or Section 1.7 (it being acknowledged that Section 5.7(f) and Section 1.7 do not apply to the Trust Advisor) or any other provision of this Agreement relating to the delivery of any information or communication for posting on, or the posting of any information or communication to, the 17g-5 Information Provider’s Website, or (ii) if the 17g-5 Indemnifying Party is the 17g-5 Information Provider, any negligence, willful misconduct or bad faith on its part in connection with establishing, posting information and communications to, granting access to, and otherwise performing its obligations and duties hereunder with respect to, the 17g-5 Information Provider’s Website, or (iii) a determination by any Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Exchange Act Rule 17g-5(a)(3), to the extent caused by any such breach referred to in clause (i) above by, or any negligence, willful misconduct or bad faith referred to in clause (ii) above on the part of, the applicable 17g-5 Indemnifying Party, and will reimburse such 17g-5 Indemnified Party for any legal or other expenses reasonably incurred by such 17g-5 Indemnified Party in connection with investigating or defending any such action or claim, as such expenses are incurred.
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(d) None of the Depositor, the Sellers, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar, the Trustee, the Certificate Administrator (if it is not also the 17g-5 Information Provider) or the Custodian shall have any liability for (i) the 17g-5 Information Provider’s failure to post information provided by the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Registrar, the Trustee, the Certificate Administrator (if it is not also the 17g-5 Information Provider) or the Custodian in accordance with the terms of this Agreement, or (ii) any malfunction or disabling of the 17g-5 Information Provider’s Website.
(e) None of the foregoing restrictions in this Section 5.7 prohibit or restrict oral or written communications, or providing information, between the Master Servicer, the Special Servicer or the Trust Advisor, on the one hand, and any Rating Agency, on the other hand, with regard to (i) such Rating Agency’s review of the ratings it assigns to the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, (ii) such Rating Agency’s approval of the Master Servicer or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer, or the Trust Advisor as an operating advisor or (iii) such Rating Agency’s evaluation of the Master Servicer’s or the Special Servicer’s, as applicable, servicing operations in general, or the Trust Advisor’s operations in general; provided that the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans to such Rating Agency in connection with such review and evaluation by such Rating Agency unless (x) Mortgagor, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on to the 17g-5 Information Provider’s Website; or (z) the Rating Agency has confirmed in writing to the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, that it will not use such information in undertaking credit rating surveillance for any Class of Certificates (and the party providing such information to a Rating Agency shall, upon request, certify to the Depositor that it received the confirmation described in this clause (z)).
(f) The 17g-5 Information Provider shall, at all times that any Certificates are outstanding and rated by a Rating Agency, maintain the 17g-5 Information Provider’s Website, and grant access thereto to the Rating Agencies and the other NRSROs, in accordance with this Agreement.
(g) The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website and make available solely to the Rating Agencies and other NRSROs the following items, to the extent such items are delivered to it in an electronic document format suitable for website posting (and the parties required to deliver the following information to the 17g-5 Information Provider agree to do so) via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “MSBAM 2015-C23” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:
(i) any and all Officer’s Certificates and other evidence delivered to the 17g-5 Information Provider to support the Master Servicer’s, the Trustee’s or the Special
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Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance and notices of a determination to reimburse Nonrecoverable Advances from sources other than principal collections;
(ii) any Final Asset Status Report delivered by the Special Servicer pursuant to Section 9.32(h);
(iii) any Third Party Reports delivered to the 17g-5 Information Provider;
(iv) all of the annual compliance statements and annual assessments as to compliance delivered to the 17g-5 Information Provider since the Closing Date pursuant to Section 13.9 and Section 13.10, respectively;
(v) all of the annual independent public accountants’ servicing reports caused to be delivered to the 17g-5 Information Provider since the Closing Date pursuant to Section 13.11;
(vi) copies of any Rating Agency Communications that are delivered to the 17g-5 Information Provider;
(vii) copies of any questions or requests submitted by the Rating Agencies directed toward the Master Servicer, Special Servicer, Trust Advisor, Custodian, Certificate Administrator or Trustee, and the responses thereto;
(viii) all notices of termination, resignation or assignment of rights and duties of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator or the Trustee) received by the 17g-5 Information Provider;
(ix) all notices of the occurrence of a Servicer Termination Event, in the case of the Master Servicer, events described in Section 9.30(b), in the case of the Special Servicer, or events described in Section 10.12, in the case of the Trust Advisor, received by the 17g-5 Information Provider;
(x) all notices of merger or consolidation of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trustee) received by the 17g-5 Information Provider;
(xi) any Trust Advisor Annual Reports received by the 17g-5 Information Provider;
(xii) any notice of any amendment of this Agreement pursuant to Section 14.3;
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(xiii) any notice or other information provided to any Rating Agency pursuant to Section 1.7;
(xiv) any Initial Certification, Final Certification and updated schedule of exceptions received by the 17g-5 Information Provider pursuant to Section 2.2;
(xv) notice of any Material Breach or Material Document Defect, and notice of any repurchase or replacement of a Mortgage Loan in connection therewith, received by the 17g-5 Information Provider pursuant to Section 2.3;
(xvi) any requests for a Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 1.7;
(xvii) any other information delivered to the 17g-5 Information Provider pursuant to this Agreement, including pursuant to Section 5.7(a) and Section 5.7(b); and
(xviii) the Rating Agency Q&A Forum and Document Request Tool.
The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website, a link to which shall be provided on NetRoadshow’s website at www.debtx.com or such other website as MSMCH may notify the parties hereto in writing. Information will be posted to the 17g-5 Information Provider’s Website within two (2) Business Days of receipt. The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. If any information is delivered or posted in error, the 17g-5 Information Provider may remove it from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the 17g-5 Information Provider’s Website. Access will be provided by the 17g-5 Information Provider to the Rating Agencies and other NRSROs upon receipt of an NRSRO Certification (which certification may be submitted electronically via the 17g-5 Information Provider’s Website). Questions regarding delivery of information to the 17g-5 Information Provider may be directed to (866) 846-4526 and 17g5informationprovider@wellsfargo.com (or to such other telephone number or email address as the 17g-5 Information Provider may designate).
Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 5.7. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website which Rating Agency requested such additional information.
The 17g-5 Information Provider shall provide a mechanism to notify each Rating Agency or other NRSRO each time the 17g-5 Information Provider posts an additional document to the 17g-5 Information Provider’s Website.
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The 17g-5 Information Provider shall make available, only to the Rating Agencies and other NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where Rating Agencies and other NRSROs may (i) submit questions to the Certificate Administrator relating to the Distribution Date Statement, or submit questions to the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to this Section 5.7, the Mortgage Loans, the A/B Whole Loans, Loan Pairs or the Mortgaged Properties (“Rating Agency Inquiries”), (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the answers thereto and (iii) submit requests for loan-level reports and information. Upon receipt of a Rating Agency Inquiry for the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, the 17g-5 Information Provider shall forward such Rating Agency Inquiry to the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of a Rating Agency Inquiry, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply to the Rating Agency Inquiry, which reply of the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer shall be by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period, and in any event within two (2) Business Days, following preparation or receipt of such answer, as the case may be) such Rating Agency Inquiry and the related answer (or reports, as applicable) to the 17g-5 Information Provider’s Website. Any report posted by the 17g-5 Information Provider in response to a request may be posted on a page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement (including the confidentiality provisions and restrictions on the release of Privileged Information contained in this Agreement) or the applicable Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or (iii)(A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator and the Trust Advisor) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator the Trust Advisor, Master Servicer or Special Servicer, as applicable, under this Agreement, then it shall not be required to answer such Rating Agency Inquiry and, in the case of the Certificate Administrator, the Trust Advisor, the Master Servicer or the Special Servicer, shall promptly notify the 17g-5 Information Provider, and the 17g-5 Information Provider shall post (within two (2) Business Days of its receipt of such notice) such Rating Agency Inquiry on the Rating Agency Q&A Forum and Document Request Tool together with the reason such Rating Agency Inquiry was not answered. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and no other party shall have any responsibility or liability for the content of any such
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information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications between the 17g-5 Information Provider and any other Person that are not submitted via the 17g-5 Information Provider’s Website.
In connection with providing access to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The 17g-5 Information Provider shall not be liable for the dissemination of information in accordance with the terms of this Agreement, makes no representations or warranties as to the accuracy or completeness of such information being made available, and assumes no responsibility for such information. The 17g-5 Information Provider shall not be liable for its failure to make any information available to the Rating Agencies or other NRSROs unless such information was delivered to the 17g-5 Information Provider at the email address set forth herein, with a subject heading of “MSBAM 2015-C23” and sufficient detail to indicate that such information is required to be posted on the 17g-5 Information Provider’s Website.
(h) The costs and expenses of compliance with this Section by any party hereto shall not be Additional Trust Expenses.
(i) The 17g-5 Information Provider shall not be obligated to determine whether any information submitted or delivered to it constitutes Privileged Information, and shall not have any liability for posting to the 17g-5 Information Provider’s Website any Privileged Information received from a third party in accordance with this Agreement, unless such Privileged Information is clearly identified as such to the 17g-5 Information Provider upon delivery thereto. The Master Servicer, the Special Servicer and the Trust Advisor shall not deliver any Privileged Information to the 17g-5 Information Provider.
(j) With respect to each Non-Serviced Mortgage Loan, each of the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall provide to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website, promptly upon receipt from a Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Certificate Administrator or Non-Serviced Mortgage Loan Trustee, all reports, statements, documents, notices and other information it receives in respect of such Non-Serviced Mortgage Loan that would otherwise have been required to be submitted to the 17g-5 Information Provider under this Agreement for posting had such Non-Serviced Mortgage Loan been a Serviced Mortgage Loan. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website all such information it receives in accordance with this Agreement.
(k) It is hereby acknowledged and agreed that none of the Depositor, any other party to this Agreement or any Seller has contracted with the Controlling Class Representative or any Certificateholder or Certificate Owner to provide information to any Rating Agency for the purpose of undertaking credit rating surveillance on the Certificates. For the avoidance of doubt, nothing contained in the foregoing sentence shall be deemed to prohibit, restrict or otherwise limit the ability of the Controlling Class Representative, any
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Certificateholder and/or any Certificate Owner, as applicable, in each case, of their own accord and without any express or implicit authorization of or direction from the Depositor, any other party to this Agreement or any Seller, from communicating or transacting with any Rating Agency with respect to this transaction or otherwise.
(l) If any of the parties to this Agreement receives a Form ABS Due Diligence-15E from any party in connection with any third-party due diligence services such party may have provided with respect to the Mortgage Loans (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or from another party to this Agreement, promptly upon receipt thereof.
ARTICLE
VI
DISTRIBUTIONS
Section 6.1 Distributions Generally. Subject to Section 11.2(a), with respect to the final distribution on the Certificates, on each Distribution Date, the Certificate Administrator shall (1) first, withdraw from the Distribution Account and pay to the Trustee and Custodian any unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then, to the Certificate Administrator, any unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then at the written direction of the Master Servicer, withdraw from the Distribution Account and pay to the Master Servicer and Special Servicer any unpaid servicing compensation or other amounts currently required to be paid pursuant to this Agreement (to the extent not previously retained or withdrawn by the Master Servicer from the Collection Account), and (2) second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder; provided, that (i) remittances to the Certificate Administrator shall be made by wire transfer of immediately available funds to the Distribution Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Reserve Account; and (ii) the final distribution in respect of any Certificate shall be made only upon presentation and surrender of such Certificate at such location specified by the Certificate Administrator in a notice delivered to Certificateholders pursuant to Section 11.2(a). If any payment required to be made on the Certificates is to be made on a day that is not a Business Day, then such payment will be made on the next succeeding Business Day without compensation for such delay. All distributions or allocations made with respect to Holders of Certificates of a particular Class on each Distribution Date shall be made or allocated among the outstanding Certificates of such Class in proportion to their respective initial Certificate Balances, in the case of a Class of
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Principal Balance Certificates, or initial Notional Amounts, in the case of a Class of Class X Certificates, or Percentage Interests, in the case of the Class V and Class R Certificates.
Section 6.2 Compliance with Withholding Requirements. Notwithstanding any other provision of this Agreement to the contrary, the Certificate Administrator on behalf of the Trustee shall comply with all federal withholding requirements with respect to payments to Certificateholders of interest, original issue discount, or other amounts that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders shall not be required for any such withholding and any amount so withheld shall be regarded as distributed to the related Certificateholders for purposes of this Agreement. If the Certificate Administrator withholds any amount from payments made to any Certificateholder pursuant to federal withholding requirements, the Certificate Administrator shall indicate to such Certificateholder the amount withheld. The Trustee shall not be responsible for the Certificate Administrator’s failure to comply with any withholding requirements.
Section 6.3 REMIC I.
(a) On each Distribution Date, the Certificate Administrator shall be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount attributable to interest (other than Excess Interest) collected or advanced or deemed collected or advanced on or with respect to, and any Excess Liquidation Proceeds attributable to, each Mortgage Loan (including each REO Mortgage Loan), to pay any and all Distributable Interest with respect to the Corresponding REMIC I Regular Interest for such Distribution Date;
(ii) from the portion of the Available Distribution Amount attributable to principal collected or advanced or deemed collected or advanced on or with respect to each Mortgage Loan (including each REO Mortgage Loan), to pay such principal with respect to the Corresponding REMIC I Regular Interest, until the REMIC I Principal Amount thereof is reduced to zero; and
(iii) from any remaining amount of the Available Distribution Amount (other than Excess Interest) and any remaining Excess Liquidation Proceeds with respect to each Mortgage Loan (including each REO Mortgage Loan), to reimburse, first, any unreimbursed Collateral Support Deficits previously allocated to the Corresponding REMIC I Regular Interest, together with unpaid interest thereon at the related REMIC I Net Mortgage Rate (in each case from the date of allocation), and then, any unreimbursed Collateral Support Deficits allocated to any other REMIC I Regular Interest, together with unpaid interest thereon at the related REMIC I Net Mortgage Rate (in each case from the date of allocation).
(b) At such time as all Distributable Interest with respect to the REMIC I Regular Interests has been paid, the REMIC I Principal Amounts of all of the REMIC I Regular Interests have been reduced to zero, and all Collateral Support Deficits (including interest thereon) previously allocated thereto to the REMIC I Regular Interests have been reimbursed, the
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Certificate Administrator shall pay to the Holders of the Class R Certificates with respect to the REMIC I Residual Interest any amounts of the Available Distribution Amount (other than Excess Interest) remaining with respect to each Mortgage Loan or, to the extent of the Trust’s interest therein, the related REO Property, as applicable.
(c) Any Prepayment Premium distributed with respect to any Class of REMIC III Regular Certificates or EC REMIC III Regular Interest (and correspondingly, to the applicable Exchangeable Certificates) on any Distribution Date pursuant to Section 6.10, shall be deemed to have first been distributed from REMIC I to REMIC II in respect of the Corresponding REMIC I Regular Interest for the Mortgage Loan (including an REO Mortgage Loan) as to which such Prepayment Premium was received.
Section 6.4 REMIC II.
(a) On each Distribution Date, following any allocations of Trust Advisor Expenses on such Distribution Date pursuant to Section 6.11, the Certificate Administrator shall be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular Interests, amounts distributable to any Class of Principal Balance Certificates (other than the Exchangeable Certificates) and the EC REMIC III Regular Interests, pursuant to Section 6.5, Section 6.10 or Section 11.1, with respect to such Class’s or EC REMIC III Regular Interest’s Corresponding REMIC II Regular Interest.
(b) All distributions made in respect of a Class of Class X Certificates on any Distribution Date pursuant to Section 6.5, Section 6.10 or Section 11.1, and allocable to any particular Class X REMIC III Regular Interest, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of such Class X REMIC III Regular Interest’s Corresponding REMIC II Regular Interest.
(c) All distributions made in respect of the Exchangeable Certificates on any Distribution Date pursuant to Section 6.5, Section 6.10 or Section 11.1, and allocable to any particular EC REMIC III Regular Interest, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of such EC REMIC III Regular Interest’s Corresponding REMIC II Regular Interest.
(d) [Reserved]
(e) For purposes of Section 6.4(a), Section 6.4(b), Section 6.4(c) and Section 6.4(d), if the subject distribution on or in respect of any Class of REMIC III Regular Certificates, Exchangeable Certificates or EC REMIC III Regular Interest was a distribution of interest, principal, Prepayment Premiums or in reimbursement of previously allocated Collateral Support Deficits or Trust Advisor Expenses, then the corresponding distribution deemed to be made on a REMIC II Regular Interest shall be deemed to also be, respectively, a distribution of interest, principal, Prepayment Premiums or in reimbursement of previously allocated Collateral Support Deficits or Trust Advisor Expenses with respect to such REMIC II Regular Interest.
(f) Any amounts remaining in the Distribution Account with respect to REMIC II on any Distribution Date after the foregoing distributions shall be distributed to the Holders of the Class R Certificates with respect to the REMIC II Residual Interest.
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Section 6.5 REMIC III.
(a) On each Distribution Date, following any allocations of Trust Advisor Expenses on such Distribution Date pursuant to Section 6.11, the Certificate Administrator shall withdraw from the Distribution Account an amount equal to the Available Distribution Amount and shall distribute such amount (other than the amount attributable to any Excess Liquidation Proceeds, which shall be distributed in accordance with Section 6.5(b), and any Excess Interest, which shall be distributed in accordance with Section 6.5(d)), in the following amounts and order of priority:
(i) to make payments to the Holders of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-FG and Class X-H Certificates, in an amount up to all Distributable Certificate Interest with respect to such Classes of Certificates for such Distribution Date, pro rata in proportion to the Distributable Certificate Interest payable to each such Class;
(ii) to make payments to the Holders of the Class A-1, Class A-2, Class A-SB, Class A-3 and Class A-4 Certificates, in reduction of the respective Aggregate Certificate Balances thereof, in an amount up to the remaining Principal Distribution Amount for such Distribution Date: first, to the Holders of the Class A-SB Certificates, the Principal Distribution Amount for such Distribution Date, until the Aggregate Certificate Balance thereof has been reduced to the Planned Principal Balance for such Distribution Date, second, to the Holders of the Class A-1 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance thereof is reduced to zero, third, upon payment in full of the Aggregate Certificate Balance of the Class A-1 Certificates, to the Holders of the Class A-2 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-2 Certificates has been reduced to zero, fourth, upon payment in full of the Aggregate Certificate Balance of the Class A-2 Certificates, to the Holders of the Class A-3 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-3 Certificates has been reduced to zero, fifth, upon payment in full of the Aggregate Certificate Balance of the Class A-3 Certificates, to the Holders of the Class A-4 Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-4 Certificates has been reduced to zero, and sixth, upon payment in full of the Aggregate Certificate Balance of the Class A-4 Certificates, to the Holders of the Class A-SB Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder) until the Aggregate Certificate Balance of the Class A-SB Certificates has been reduced to zero;
(iii) to make payments to the Holders of the Class A-1, Class A-2, Class A-SB, Class A-3 and Class A-4 Certificates, first, up to an amount equal to, and pro rata in proportion to, their respective entitlements to reimbursement described in this clause first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, up to an amount equal to, and pro rata
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in proportion to, their respective entitlements to payment described in this clause second, any unpaid interest at the applicable Pass-Through Rate on unreimbursed Collateral Support Deficits previously allocated to each such Class, in each case from the date allocated;
(iv) to make payments concurrently, to the Holders of the Class A-S Certificates, in respect of interest, up to an amount equal to the Class A-S Percentage Interest of the Distributable Certificate Interest with respect to the Class A-S REMIC III Regular Interest for such Distribution Date, and to the Holders of the Class PST Certificates, in respect of interest, up to an amount equal to the Class A-S-PST Percentage Interest of the Distributable Certificate Interest with respect to the Class A-S REMIC III Regular Interest for such Distribution Date, pro rata, in proportion to their respective percentage interests in the Class A-S REMIC III Regular Interest;
(v) upon payment in full of the Aggregate Certificate Balances of the Class A-1, Class A-2, Class A-SB, Class A-3 and Class A-4 Certificates, to make payments concurrently, to the Holders of the Class A-S Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class A-S Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), and to the Holders of the Class PST Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class A-S-PST Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), pro rata, in proportion to their respective percentage interests in the Class A-S REMIC III Regular Interest, until the Aggregate Certificate Balance of the Class A-S Certificates and the Class PST Component A-S Principal Amount have been reduced to zero;
(vi) to make payments concurrently, (A) to the Holders of the Class A-S Certificates, in an amount up to the Class A-S Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class A-S REMIC III Regular Interest (and correspondingly to the Class A-S Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class A-S Certificates from the date the related Collateral Support Deficit was allocated to the Class A-S REMIC III Regular Interest, and (B) to the Holders of the Class PST Certificates, in an amount up to the Class A-S-PST Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class A-S REMIC III Regular Interest (and correspondingly to the Class PST Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class A-S Certificates from the date the related Collateral Support Deficit was allocated to the Class A-S REMIC III Regular Interest, pro rata, in proportion to their respective percentage interests in the Class A-S REMIC III Regular Interest
(vii) to make payments concurrently, to the Holders of the Class B Certificates, in respect of interest, up to an amount equal to the Class B Percentage Interest of the Distributable Certificate Interest with respect to the Class B REMIC III Regular Interest for such Distribution Date, and to the Holders of the Class PST Certificates, in respect of interest, up to an amount equal to the Class B-PST Percentage Interest of the
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Distributable Certificate Interest with respect to the Class B REMIC III Regular Interest for such Distribution Date, pro rata, in proportion to their respective percentage interests in the Class B REMIC III Regular Interest;
(viii) upon payment in full of the Aggregate Certificate Balance of the Class A-S Certificates and the Class PST Component A-S Principal Amount, to make payments concurrently, to the Holders of the Class B Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class B Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), and to the Holders of the Class PST Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class B-PST Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), pro rata, in proportion to their respective percentage interests in the Class B REMIC III Regular Interest, until the Aggregate Certificate Balance of the Class B Certificates and the Class PST Component B Principal Amount have been reduced to zero;
(ix) to make payments concurrently, (A) to the Holders of the Class B Certificates, in an amount up to the Class B Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class B REMIC III Regular Interest (and correspondingly to the Class B Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class B Certificates from the date the related Collateral Support Deficit was allocated to the Class B REMIC III Regular Interest, and (B) to the Holders of the Class PST Certificates, in an amount up to the Class B-PST Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class B REMIC III Regular Interest (and correspondingly to the Class PST Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class B Certificates from the date the related Collateral Support Deficit was allocated to the Class B REMIC III Regular Interest, pro rata, in proportion to their respective percentage interests in the Class B REMIC III Regular Interest;
(x) to make payments concurrently, to the Holders of the Class C Certificates, in respect of interest, up to an amount equal to the Class C Percentage Interest of the Distributable Certificate Interest with respect to the Class C REMIC III Regular Interest for such Distribution Date, and to the Holders of the Class PST Certificates, in respect of interest, up to an amount equal to the Class C-PST Percentage Interest of the Distributable Certificate Interest with respect to the Class C REMIC III Regular Interest for such Distribution Date, pro rata, in proportion to their respective percentage interests in the Class C REMIC III Regular Interest;
(xi) upon payment in full of the Aggregate Certificate Balance of the Class B Certificates and the Class PST Component B Principal Amount, to make payments concurrently, to the Holders of the Class C Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class C Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), and to the Holders of the Class PST Certificates, in
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reduction of the Aggregate Certificate Balance thereof, in an amount up to the Class C-PST Percentage Interest of the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), pro rata, in proportion to their respective percentage interests in the Class C REMIC III Regular Interest, until the Aggregate Certificate Balance of the Class C Certificates and the Class PST Component C Principal Amount have been reduced to zero;
(xii) to make payments concurrently, (A) to the Holders of the Class C Certificates, in an amount up to the Class C Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class C REMIC III Regular Interest (and correspondingly to the Class C Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class C Certificates from the date the related Collateral Support Deficit was allocated to the Class C REMIC III Regular Interest, and (B) to the Holders of the Class PST Certificates, in an amount up to the Class C-PST Percentage Interest of, first, any unreimbursed Collateral Support Deficit previously allocated to the Class C REMIC III Regular Interest (and correspondingly to the Class PST Certificates), and second, unpaid interest on that amount at the Pass-Through Rate for the Class C Certificates from the date the related Collateral Support Deficit was allocated to the Class C REMIC III Regular Interest, pro rata, in proportion to their respective percentage interests in the Class C REMIC III Regular Interest;
(xiii) to make payments to the Holders of the Class D Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xiv) upon payment in full of the Aggregate Certificate Balance of the Class C Certificates and the Class PST Certificates, to make payments to the Holders of the Class D Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class D Certificates has been reduced to zero;
(xv) to make payments to the Holders of the Class D Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xvi) to make payments to the Holders of the Class E Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xvii) upon payment in full of the Aggregate Certificate Balance of the Class D Certificates, to make payments to the Holders of the Class E Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof
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hereunder), until the Aggregate Certificate Balance of the Class E Certificates has been reduced to zero;
(xviii) to make payments to the Holders of the Class E Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xix) to make payments to the Holders of the Class F Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xx) upon payment in full of the Aggregate Certificate Balance of the Class E Certificates, to make payments to the Holders of the Class F Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class F Certificates has been reduced to zero;
(xxi) to make payments to the Holders of the Class F Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxii) to make payments to the Holders of the Class G Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xxiii) upon payment in full of the Aggregate Certificate Balance of the Class F Certificates, to make payments to the Holders of the Class G Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Aggregate Certificate Balance of the Class G Certificates has been reduced to zero;
(xxiv) to make payments to the Holders of the Class G Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxv) to make payments to the Holders of the Class H Certificates, in an amount up to all Distributable Certificate Interest with respect to such Class of Certificates for such Distribution Date;
(xxvi) upon payment in full of the Aggregate Certificate Balance of the Class G Certificates, to make payments to the Holders of the Class H Certificates, in reduction of the Aggregate Certificate Balance thereof, in an amount up to the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof
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hereunder), until the Aggregate Certificate Balance of the Class H Certificates has been reduced to zero;
(xxvii) to make payments to the Holders of the Class H Certificates, first, to reimburse any unreimbursed Collateral Support Deficits previously allocated thereto and not previously fully reimbursed, and second, any unpaid interest at the applicable Pass-Through Rate on such Collateral Support Deficits, in each case from the date allocated;
(xxviii) to each Class of Principal Balance Certificates (other than any Class of Control Eligible Certificates) in sequential order as specified in clauses (i) through (xv) above (taking into account the payment priority of the Class PST Certificates and treating each Class PST Component as if it were a separate Class), until all amounts of Trust Advisor Expenses (including Excess Trust Advisor Expenses) previously allocated to such Classes of Certificates, whether as a reduction of interest or as a reduction of the Aggregate Certificate Balance of such Class, but not previously reimbursed, have been reimbursed in full (it being understood that previously allocated Trust Advisor Expenses are not reimbursable as part of the reimbursement of previously allocated Collateral Support Deficits); and
(xxix) to make payments to the Holders of the Class R Certificates, up to the amount of any remaining portion of Available Distribution Amount on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on or after the earliest date, if any, upon which the Aggregate Certificate Balance of all Classes of Subordinate Certificates has been reduced to zero, or the aggregate Appraisal Reduction allocable to the Mortgage Loans is greater than or equal to the Aggregate Certificate Balance of all Classes of Subordinate Certificates, distributions of principal pursuant to clause (ii) of this Section 6.5(a) will be made to the Holders of the Class A-1, Class A-2, Class A-SB, Class A-3 and Class A-4 Certificates, pro rata, based on the respective Aggregate Certificate Balances of such Classes of Certificates, in reduction of the respective Aggregate Certificate Balances of such Classes of Certificates, in an amount up to the Principal Distribution Amount for such Distribution Date, until the Aggregate Certificate Balance of each such Class is reduced to zero.
All distributions of interest, if any, made with respect to any Class of Class X Certificates on any Distribution Date, pursuant to this Section 6.5(a), shall be made, and shall be deemed to have been made, in respect of the various Class X REMIC III Regular Interests that relate to the subject Class of Class X Certificates, pro rata in accordance with the respective amounts of Distributable Interest in respect of such Class X REMIC III Regular Interests for such Distribution Date.
All amounts distributed to the Holders of the Exchangeable Certificates pursuant to the provisions set forth above will be deemed to have been distributed simultaneously by the Certificate Administrator to itself on behalf of the Trustee as the holder of, and on, the EC REMIC III Regular Interest with the same letter designation as the Class of Certificates (or, in the case of the Class PST Certificates, the same letter designation as the Class PST Component) on which such distribution was made.
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(b) On each Distribution Date, the Certificate Administrator shall withdraw amounts in the Excess Liquidation Proceeds Reserve Account and make payments in the following priority:
(i) first, to reimburse the holders of the respective Classes of the REMIC III Regular Certificates and the EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any Unpaid Interest then owing to such Classes or EC REMIC III Regular Interests (and correspondingly, attributable to the applicable Exchangeable Certificates);
(ii) second, to reimburse the holders of the Principal Balance Certificates (other than the Exchangeable Certificates) and the EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any unreimbursed Collateral Support Deficits previously allocated to them, together with interest on such Collateral Support Deficits at the applicable Pass-Through Rate, in each case from the date of allocation; and
(iii) third, upon the reduction of the Aggregate Certificate Balance of the Principal Balance Certificates to zero, to pay any amounts remaining on deposit in such account, to the Holders of the Class R Certificates.
(c) On each Distribution Date, following application of amounts on deposit in the Excess Liquidation Proceeds Reserve Account as provided in Section 6.5(b), the Certificate Administrator shall withdraw any amounts on deposit in the TA Unused Fees Account and shall apply such amounts as follows: first, to pay any current outstanding indemnification payments and other unreimbursed expenses payable to the Trust Advisor pursuant to this Agreement; second, to reimburse the holders of Class A Senior Certificates, EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) and the Class D Certificates to the extent of any Trust Advisor Expenses that were actually applied to reduce the Distributable Certificate Interest of such Classes or EC REMIC III Regular Interests or the Aggregate Certificate Balance of such Classes and EC REMIC III Regular Interests (and correspondingly, the Aggregate Certificate Balance of the applicable Exchangeable Certificates), as applicable, on any Distribution Date, which amounts will be allocated first as recoveries of principal of such Classes or EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates), as applicable, in the reverse order (subject to the payment allocation priority of the Class PST Certificates set forth in Section 6.11) in which the applicable Excess Trust Advisor Expenses were allocated to reduce the respective Aggregate Certificate Balances of such Classes and EC REMIC III Regular Interests (and correspondingly, the Aggregate Certificate Balance of the applicable Exchangeable Certificates) and then as recoveries of interest shortfalls on such Classes (other than the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4 and Class A-S Certificates and the Class PST Component A-S), Class B REMIC III Regular Interest (and correspondingly, the applicable Exchangeable Certificates) and Class C REMIC III Regular Interest (and correspondingly, the applicable Exchangeable Certificates) in the reverse order (subject to the payment allocation priority of the Class PST Certificates set forth in Section 6.11) in which the applicable Trust Advisor Expenses were allocated to reduce Distributable
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Certificate Interest on such Classes or EC REMIC III Regular Interests; third, if such Distribution Date coincides with or follows the earlier of (x) the final Distribution Date and (y) the date that the Aggregate Certificate Balance of the Principal Balance Certificates, other than the Control Eligible Certificates, has been reduced to zero, to reimburse the holders of the Class A Senior Certificates, the EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) and the Class D, Class E, Class F, Class G and Class H Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any unreimbursed Collateral Support Deficits previously allocated to such Classes or EC REMIC III Regular Interests, together with interest on such Collateral Support Deficits at the applicable Pass-Through Rate, in each case from the date of allocation; fourth, if such Distribution Date coincides with or follows the earlier of (x) the final Distribution Date and (y) the date that the Aggregate Certificate Balance of the Principal Balance Certificates, other than the Control Eligible Certificates, has been reduced to zero, to reimburse the Class A Senior Certificates, the EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) and the Class D, Class E, Class F, Class G, Class H and Class X Certificates (in the same order of priority that the Available Distribution Amount would be applied for this purpose) for, and to the extent of, any Unpaid Interest due and owing to such Classes or EC REMIC III Regular Interests; and fifth, upon the reduction of the Aggregate Certificate Balance of the Principal Balance Certificates to zero, to pay any amounts remaining on deposit in such account, to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Certificate Administrator shall withdraw from the Excess Interest Sub-account any Excess Interest on deposit therein, and the Certificate Administrator shall pay such Excess Interest on such Distribution Date to the Holders of the Class V Certificates.
Section 6.6 Allocation of Collateral Support Deficits.
(a) REMIC I. On each Distribution Date, following the deemed distributions with respect to the REMIC I Regular Interests on such Distribution Date pursuant to Section 6.3, the Collateral Support Deficits, if any, with respect to each REMIC I Regular Interest on such Distribution Date will be allocated to such REMIC I Regular Interest in reduction of the REMIC I Principal Amount of such REMIC I Regular Interest.
(b) REMIC II. On each Distribution Date, following the deemed distributions with respect to the REMIC II Regular Interests on such Distribution Date pursuant to Section 6.4, any Collateral Support Deficits with respect to the REMIC II Regular Interests on such Distribution Date will be allocated to the respective REMIC II Regular Interests as follows:
(i) first, to REMIC II Regular Interest H, REMIC II Regular Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E, REMIC II Regular Interest D, REMIC II Regular Interest C, REMIC II Regular Interest B and REMIC II Regular Interest A-S, in that order, in each case in reduction of the REMIC II Principal Amount of the subject REMIC II Regular Interest until such REMIC II Principal Amount is reduced to zero; and
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(ii) then, to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest A-SB, REMIC II Regular Interest A-3 and REMIC II Regular Interest A-4, on a pro rata basis in accordance with, and in reduction of, the respective REMIC II Principal Amounts of such REMIC II Regular Interests until such REMIC II Principal Amounts are reduced to zero.
(c) REMIC III. On each Distribution Date, following the distributions with respect to the Principal Balance Certificates on such Distribution Date pursuant to Section 6.5, any Collateral Support Deficits with respect to the Principal Balance Certificates on such Distribution Date will be allocated to the respective Classes of Principal Balance Certificates (other than the Exchangeable Certificates) and the respective EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) as follows:
(i) first, to the Class H Certificates, the Class G Certificates, the Class F Certificates, the Class E Certificates and the Class D Certificates, in that order, in each case in reduction of the Aggregate Certificate Balance of the subject Class of Principal Balance Certificates until such Aggregate Certificate Balance is reduced to zero;
(ii) second, to the Class C REMIC III Regular Interest (and correspondingly, the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest);
(iii) third, to the Class B REMIC III Regular Interest (and correspondingly, the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest);
(iv) fourth, to the Class A-S REMIC III Regular Interest (and correspondingly, the Class A-S Certificates and the Class PST Certificates, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest); and
(v) fifth, to the Class A-1 Certificates, the Class A-2 Certificates, Class A-SB Certificates, Class A-3 Certificates and Class A-4 Certificates, on a pro rata basis in accordance with, and in reduction of, the respective Aggregate Certificate Balances of such Classes of Principal Balance Certificates until such Aggregate Certificate Balances are reduced to zero.
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls. On each Distribution Date, the portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocable to any Principal Prepayment of any Mortgage Loan during the related Collection Period shall be allocated to the Corresponding REMIC I Regular Interest to reduce the Distributable Interest for such REMIC I Regular Interest in accordance with the definition of “Distributable Interest”. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date shall be allocated among the respective REMIC II Regular Interests, pro rata in proportion to the
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Accrued Interest for each REMIC II Regular Interest for such Distribution Date and shall reduce Distributable Interest for each REMIC II Regular Interest in accordance with the definition of “Distributable Interest”. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date shall be allocated among the respective Classes of the REMIC III Regular Certificates and the EC REMIC III Regular Interests (and, correspondingly, the applicable Exchangeable Certificates), pro rata in proportion to the amount of Accrued Certificate Interest payable to each such Class of REMIC III Regular Certificates or EC REMIC III Regular Interest for such Distribution Date and shall reduce the Distributable Certificate Interest for each such Class of REMIC III Regular Certificates or EC REMIC III Regular Interest for such Distribution Date in accordance with the definition of “Distributable Certificate Interest”. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocated to the Class A-S REMIC III Regular Interest shall be allocated between the Class A-S Certificates and the Class PST Component A-S, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocated to the Class B REMIC III Regular Interest shall be allocated between the Class B Certificates and the Class PST Component B, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest. On each Distribution Date, the amount of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocated to the Class C REMIC III Regular Interest shall be allocated between the Class C Certificates and the Class PST Component C, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest. On each Distribution Date, the portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocable to a Class of Class X Certificates shall, in turn, be allocated to the respective Class X REMIC III Regular Interests related to such Class, pro rata in proportion to the Accrued Interest with respect to each Class X REMIC III Regular Interest for such Distribution Date and shall reduce the Distributable Interest for each Class X REMIC III Regular Interest for such Distributable Date in accordance with the definition of “Distributable Interest”. No Prepayment Interest Shortfall with respect to a Serviced Companion Loan or a Serviced B Note shall be allocated to any Class of Certificates.
Section 6.8 Adjustment of Master Servicing Fees. The Master Servicing Fee payable to the Master Servicer shall be adjusted as provided in Section 5.2(a)(I)(iv) herein. Any amount retained by REMIC I as a result of a reduction of the Master Servicing Fee shall be treated as interest collected with respect to the prepaid Mortgage Loans with respect to which the Master Servicing Fee adjustment occurs. The Master Servicer shall deposit in the Distribution Account prior to each Distribution Date any Compensating Interest for such Distribution Date not covered by the foregoing adjustment to Master Servicing Fees.
Section 6.9 Appraisal Reductions. If an Appraisal Event occurs, the Special Servicer shall obtain (and shall use reasonable efforts to obtain within sixty (60) days of such Appraisal Event) (A) an Appraisal of the Mortgaged Property securing the related Mortgage Loan (other than any Non-Serviced Mortgage Loan), Loan Pair or A/B Whole Loan, if the Stated Principal Balance of such Mortgage Loan, Loan Pair or A/B Whole Loan exceeds $2,000,000 or (B) at the option of the Special Servicer, if such Stated Principal Balance is less than or equal to $2,000,000, either an internal valuation prepared by the Special Servicer in accordance with MAI
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standards or an Appraisal; provided that if the Special Servicer had completed or obtained an Appraisal or internal valuation within the immediately prior nine (9) months, the Special Servicer may rely on such Appraisal or internal valuation and shall have no duty to prepare a new Appraisal or internal valuation, unless the Special Servicer is aware of any material change to the related Mortgaged Property, its earnings potential or risk characteristics, or marketability, or market conditions that have occurred that would affect the validity of the appraisal or valuation; and provided, further, that an updated Appraisal shall not be required with respect to any Mortgage Loan, A/B Whole Loan or Loan Pair, as applicable, and an Appraisal Reduction will not be required, so long as a debt service reserve, letter of credit, guaranty or surety bond is available and has the ability to pay off the then Unpaid Principal Balance of the subject Mortgage Loan, A/B Whole Loan or Loan Pair in full except to the extent that the Special Servicer, in accordance with the Servicing Standard, determines that obtaining an Appraisal is in the best interests of the Certificateholders. The Special Servicer shall update such Appraisal or valuation in accordance with the definition of “market value” as set forth in 12 C.F.R. § 225.62 at least annually, and shall use reasonable efforts to do so within thirty (30) days of each annual anniversary of the related Appraisal Event, to the extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by the Special Servicer, shall be an expense of the Trust (and any related Serviced B Note) and may be paid from REO Income or, to the extent collections from such related Mortgage Loan, Serviced B Note, Loan Pair or Mortgaged Property does not cover the expense, such unpaid expense shall be, subject to Section 4.4 hereof, advanced by the Master Servicer at the request of the Special Servicer or by the Special Servicer pursuant to Section 4.2 in which event it shall be treated as a Servicing Advance. The Special Servicer, based on the Appraisal or internal valuation prepared or obtained by the Special Servicer and receipt of information requested by the Special Servicer from the Master Servicer pursuant to this Section 6.9, shall calculate any Appraisal Reduction and promptly report such amount to the Master Servicer, the Trustee, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor. The Special Servicer shall calculate or recalculate the Appraisal Reduction for any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced B Note and Loan Pair based on updated Appraisals or internal valuations prepared or obtained from time to time by the Special Servicer and report such amount to the Master Servicer, the Trustee, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor annually. The Master Servicer shall provide the Special Servicer with information (via electronic delivery) in its possession that is required to calculate or recalculate any Appraisal Reduction pursuant to the definition thereof, using reasonable efforts to deliver such information within four (4) Business Days of the Special Servicer’s written request (which request shall be made promptly, but in no event later than ten (10) Business Days, after the Special Servicer’s receipt of the applicable Appraisal or preparation of the applicable internal valuation); provided the Special Servicer’s failure to timely make such request shall not relieve the Master Servicer of its obligation to provide such information to the Special Servicer in the manner and timing set forth in this sentence. The Master Servicer shall not calculate Appraisal Reductions.
On each and every day following the Closing Date, the then Aggregate Certificate Balance of each Class of the Principal Balance Certificates and each EC REMIC III Regular Interest shall be notionally reduced (for purposes of determining the identity of the Controlling
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Class, whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect and, as and to the extent contemplated by the definition of “Voting Rights”, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates) to the extent of the then existing Appraisal Reduction(s) (without giving effect to, and exclusive of, any Appraisal Reduction calculated pursuant to the last sentence of the definition of “Appraisal Reduction” (other than the proviso contained in such sentence)) allocable to such Class or EC REMIC III Regular Interest. The aggregate Appraisal Reduction in respect of or allocable to the Mortgage Loans as of any date of determination shall be applied (solely for purposes of determining the identity of the Controlling Class, whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect and, as and to the extent contemplated by the definition of “Voting Rights”, the allocation of Voting Rights among the respective Classes of Principal Balance Certificates) to notionally reduce the respective Aggregate Certificate Balances of the various Classes of Principal Balance Certificates and the EC REMIC III Regular Interests in the following order of priority: first, to the Class H Certificates; second, to the Class G Certificates; third, to the Class F Certificates; fourth, to the Class E Certificates; fifth, to the Class D Certificates; sixth, to the Class C REMIC III Regular Interest (and correspondingly, to the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest); seventh, to the Class B REMIC III Regular Interest (and correspondingly, to the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest); eighth, to the Class A-S REMIC III Regular Interest (and correspondingly, to the Class A-S Certificates and the Class PST Certificates, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest); and finally, pro rata to the (i) Class A-1 Certificates, (ii) Class A-2 Certificates, (iii) Class A-SB Certificates, (iv) Class A-3 Certificates and (v) Class A-4 Certificates based on their respective Aggregate Certificate Balances (provided in each case that no Aggregate Certificate Balance in respect of any such Class may be notionally reduced below zero). With respect to any Appraisal Reduction calculated for the purposes of determining the identity of the Controlling Class, the appraised value of the related Mortgaged Property shall be determined on an “as-is” basis. If all or any portion of an Appraisal Reduction ceases to exist as of any date of determination, then such Appraisal Reduction or applicable portion thereof shall no longer thereafter be applied in accordance with the foregoing two (2) sentences to notionally reduce the Aggregate Certificate Balance of any Class of Principal Balance Certificates or EC REMIC III Regular Interest, and (consistent with the foregoing) the Aggregate Certificate Balances of the applicable Classes of Principal Balance Certificates, the Class A-S REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class A-S Certificates and the Class PST Certificates, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest), the Class B REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest) and the Class C REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular
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Interest) shall be notionally restored to the extent such Appraisal Reduction or portion thereof ceases to exist.
Any Appraisal Reduction with respect to an A/B Whole Loan shall be allocated to notionally reduce the outstanding principal balance of the related Serviced B Note prior to any allocation to the related A Note.
Any Appraisal Reduction with respect to a Loan Pair shall be allocated between the related Mortgage Loan and the related Serviced Companion Loan on a pro rata basis by Unpaid Principal Balance.
The Master Servicer shall deliver to the Special Servicer notice of the occurrence of an Appraisal Event promptly following the Master Servicer’s knowledge of the occurrence thereof, and the Special Servicer shall deliver to the Master Servicer notice of the occurrence of an Appraisal Event promptly following the Special Servicer’s knowledge of the occurrence thereof. With respect to any Loan Pair, the Master Servicer shall deliver to any related Other Master Servicer, Other Special Servicer and Other Trustee (i) notice of the occurrence of any Appraisal Event in respect of such Loan Pair promptly following its knowledge, or receipt of notice from the Special Servicer, of the occurrence thereof and (ii) a statement of any Appraisal Reduction in respect of such Loan Pair promptly following its receipt from the Special Servicer of the calculation or recalculation thereof.
The Holders of the majority (based on Certificate Balance) of any Class of Control Eligible Certificates the Aggregate Certificate Balance of which has been reduced to less than 25% of the initial Aggregate Certificate Balance thereof as a result of an allocation of Appraisal Reductions in respect of such Class (such Class, an “Appraised-Out Class”) shall have the right, at their sole expense, to present to the Special Servicer a second (2nd) Appraisal of the Mortgaged Property securing any Required Appraisal Loan (other than any Non-Serviced Mortgage Loan) (such holders, the “Requesting Holders”) prepared by an Independent MAI appraiser on an “as-is” basis and acceptable to the Special Servicer in accordance with the Servicing Standard. Upon receipt of such second (2nd) Appraisal, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such second (2nd) Appraisal, any recalculation of the applicable Appraisal Reduction is warranted and, if so warranted, shall recalculate such Appraisal Reduction based upon such second (2nd) Appraisal. Any Appraised-Out Class(es) (together with any other Classes of Control Eligible Certificates affected by such Appraisal Reduction) shall have the related Aggregate Certificate Balance(s) notionally restored to the extent required by such recalculation of the Appraisal Reduction, and there will be a redetermination of whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect, as applicable. The right of any Appraised-Out Class to present a second (2nd) Appraisal in connection with any Required Appraisal Loan is limited to one Appraisal with respect to each Mortgaged Property relating to such Required Appraisal Loan.
In addition, if subsequent to a Class of Control Eligible Certificates becoming an Appraised-Out Class there is a material change with respect to any of the Mortgaged Properties related to the Appraisal Reduction that caused such Class to become an Appraised-Out Class, the applicable Requesting Holders shall have the right (except in the case of a Non-Serviced
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Mortgage Loan), at their sole expense, to present to the Special Servicer an additional Appraisal prepared by an Independent MAI appraiser on an “as-is” basis and acceptable to the Special Servicer in accordance with the Servicing Standard. Subject to the Special Servicer’s confirmation, determined in accordance with the Servicing Standard, that there has been a change with respect to the related Mortgaged Property and such change was material, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such additional Appraisal, any recalculation of the applicable Appraisal Reduction is warranted and, if so warranted, shall recalculate such Appraisal Reduction based upon such additional Appraisal. Any Appraised-Out Class(es) (together with any other Classes of Control Eligible Certificates affected by such Appraisal Reduction) shall have the related Aggregate Certificate Balance(s) notionally restored to the extent required by such recalculation of the Appraisal Reduction, and there shall be a redetermination of whether a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period is then in effect, as applicable. With respect to each Class of Control Eligible Certificates, the right to present the Special Servicer with additional Appraisals as provided in this paragraph is limited to no more frequently than once in any 12-month period.
Appraisals that are permitted to be presented by any Appraised-Out Class will be in addition to any Appraisals that the Special Servicer may otherwise be required to obtain in accordance with the Servicing Standard upon the occurrence of such material change or that the Special Servicer is otherwise required or permitted to order under this Agreement without regard to any appraisal requests made by any Requesting Holder.
Any Appraised-Out Class shall not be entitled to exercise any rights of the Controlling Class until such time, if any, as such Class is reinstated as the Controlling Class; and the rights of the Controlling Class will be exercised by the Holders of the next most senior Class of Control Eligible Certificates that is not an Appraised-Out Class, if any.
Copies of all Appraisals and other Third Party Reports obtained pursuant to this Agreement by the Special Servicer or the Master Servicer with respect to any Mortgaged Property shall be delivered (in electronic format or hard copy) to the other such servicer and to the Trustee, the Certificate Administrator (in electronic format), the 17g-5 Information Provider (in electronic format) and the Trust Advisor.
Section 6.10 Prepayment Premiums. Any Prepayment Premium collected with respect to a Mortgage Loan (but not a Serviced B Note or Serviced Companion Loan, which Prepayment Premium is payable to the holder of the related Serviced B Note or the related Serviced Companion Loan, as applicable) during any particular Collection Period shall be distributed by the Certificate Administrator on the following Distribution Date as follows:
(i) The respective Classes of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4 and Class D Certificates and the EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) then entitled to distributions of principal from the Principal Distribution Amount for such Distribution Date will be entitled to, and the Certificate Administrator on behalf of the Trustee will pay to such Classes and EC REMIC III Regular Interests, an amount equal to, in the case of each such Class or EC REMIC III Regular Interest, the product of (A) a fraction, the numerator of which is the amount
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distributed as principal to that Class or EC REMIC III Regular Interest on that Distribution Date, and the denominator of which is the total amount distributed as principal to the Holders of all Classes of Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests on that Distribution Date, multiplied by (B) the Base Interest Fraction for the related Principal Prepayment and that Class or EC REMIC III Regular Interest, multiplied by (C) the amount of the Prepayment Premium collected in respect of such Principal Prepayment during the related Collection Period.
(ii) Any portion of any such Prepayment Premium that is not so distributed to any of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4 or Class D Certificates or EC REMIC III Regular Interests (and correspondingly, the applicable Exchangeable Certificates) in accordance with the immediately preceding clause (i) distributed (the applicable “Class X YM Distribution Amount”) will be distributed to the Holders of the respective Classes of the Class X Certificates as follows: first, to the Holders of the Class X-A Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class A Senior Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount; second, to the Holders of the Class X-B Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class A-S REMIC III Regular Interest (and correspondingly, the Class A-S Certificates and the Class PST Component A-S) on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount; third, to the Holders of the Class X-FG Certificates in an amount equal to the product of (A) a fraction, the numerator of which is the total amount distributed as principal with respect to the Class F and Class G Certificates on the applicable Distribution Date, and the denominator of which is the total amount distributed as principal with respect to all Classes of Principal Balance Certificates (other than the Exchangeable Certificates) and EC REMIC III Regular Interests on the applicable Distribution Date, multiplied by (B) the applicable Class X YM Distribution Amount; and then, to the Holders of the Class X-H Certificates in an amount equal to any portion of the applicable Class X YM Distribution Amount remaining after the foregoing distributions to the Holders of the Class X-A, Class X-B and Class X-FG Certificates.
All distributions of Prepayment Premiums, if any, made with respect to a Class of Class X Certificates on any Distribution Date, pursuant to this Section 6.10, shall be made, and shall be deemed to have been made, in respect of the various Class X REMIC III Regular Interests that relate to the subject Class of Class X Certificates, pro rata in accordance with the respective amounts by which the Notional Amounts of such Class X REMIC III Regular Interests declined on such Distribution Date.
On each Distribution Date, all Prepayment Premiums, if any, distributed on the Class A-S REMIC III Regular Interest on such Distribution Date pursuant to this Section 6.10 shall be further distributed by the Certificate Administrator on behalf of the Trustee to the
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Holders of the Class A-S Certificates and the Class PST Certificates, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest. On each Distribution Date, all Prepayment Premiums, if any, distributed on the Class B REMIC III Regular Interest on such Distribution Date pursuant to this Section 6.10 shall be further distributed by the Certificate Administrator on behalf of the Trustee to the Holders of the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest. On each Distribution Date, all Prepayment Premiums, if any, distributed on the Class C REMIC III Regular Interest on such Distribution Date pursuant to this Section 6.10 shall be further distributed by the Certificate Administrator on behalf of the Trustee to the Holders of the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest.
Section 6.11 Allocation of Trust Advisor Expenses.
(a) On each Distribution Date, immediately prior to the distributions to be made to the Certificateholders for such Distribution Date pursuant to Section 6.5(a), the Certificate Administrator shall allocate Trust Advisor Expenses to reduce the Distributable Certificate Interest for such Distribution Date for the Class D Certificates, the Class C REMIC III Regular Interest (and correspondingly, the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) and the Class B REMIC III Regular Interest (and correspondingly, the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest), in that order, in each case, until the Distributable Certificate Interest of such Class for such Distribution Date has been reduced to zero. Trust Advisor Expenses shall not be allocated to reduce interest distributable to the Class A Senior Certificates, the Class A-S REMIC III Regular Interest (or, correspondingly, the Class A-S Certificates or the Class PST Component A-S), the Class X Certificates, the Class V Certificates (with respect to Excess Interest), the Control Eligible Certificates or any Serviced B Note or Serviced Companion Loan.
To the extent that the amount of Trust Advisor Expenses that are payable with respect to any Distribution Date is greater than the aggregate amount of Distributable Certificate Interest otherwise distributable on the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest and the Class D Certificates for such Distribution Date, the resulting Excess Trust Advisor Expenses shall reduce the Principal Distribution Amount for such Distribution Date otherwise allocable to (i) the Principal Balance Certificates (other than Exchangeable Certificates) that are not Control Eligible Certificates and (ii) the EC REMIC III Regular Interests. In addition, such Excess Trust Advisor Expenses shall be allocated to reduce the Aggregate Certificate Balances of the respective Classes of Principal Balance Certificates (other than the Exchangeable Certificates) that are not Control Eligible Certificates, the Certificate Balance of the Class A-S REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class A-S and Class PST Certificates, pro rata as set forth below), the Certificate Balance of the Class B REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class B and Class PST Certificates, pro rata as set forth
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below) and the Certificate Balance of the Class C REMIC III Regular Interest (and correspondingly, the Aggregate Certificate Balance of the Class C and Class PST Certificates, pro rata as set forth below) up to the aggregate amount of such reduction of the Principal Distribution Amount in the following order: first, to the Class D Certificates, until the remaining Aggregate Certificate Balance of such Class of Certificates has been reduced to zero, second, to the Class C REMIC III Regular Interest (and correspondingly, the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) until the Certificate Balance of the Class C REMIC III Regular Interest has been reduced to zero, third, to the Class B REMIC III Regular Interest (and correspondingly, the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest) until the Certificate Balance of the Class B REMIC III Regular Interest has been reduced to zero, fourth, to the Class A-S REMIC III Regular Interest (and correspondingly, the Class A-S Certificates and the Class PST Certificates, pro rata, based on the Class A-S Percentage Interest and the Class A-S-PST Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest) until the Certificate Balance of the Class A-S REMIC III Regular Interest has been reduced to zero; and then, among the respective Classes of Class A Senior Certificates, pro rata (based upon their respective Aggregate Certificate Balances), until the remaining Aggregate Certificate Balances of the Class A Senior Certificates have been reduced to zero.
Any Trust Advisor Expenses (including Excess Trust Advisor Expenses) allocated to a Class of Certificates (including any of the Exchangeable Certificates following the prior corresponding allocation to the related EC REMIC III Regular Interest) shall be allocated among the respective Certificates of such Class in proportion to the Percentage Interests evidenced by such Certificates. Any Trust Advisor Expenses remaining unreimbursed after the allocations set forth in the preceding paragraphs shall remain unreimbursed until the next Distribution Date that such applicable amounts are available. In no event shall any Trust Advisor Expenses (including Excess Trust Advisor Expenses) reduce or delay any principal or interest payable in respect of the Class V Certificates (with respect to Excess Interest) or the Control Eligible Certificates.
(b) On any Distribution Date, the amount reimbursable to the Trust Advisor in respect of Trust Advisor Expenses for such Distribution Date shall not exceed the sum of (i) the portion of the Principal Distribution Amount for such Distribution Date otherwise distributable to the Principal Balance Certificates that are not Control Eligible Certificates and (ii) the aggregate amount of Distributable Certificate Interest (for such purposes, calculated without regard to any reductions therein as a result of Trust Advisor Expenses for such Distribution Date) that would otherwise be distributable to the Class B, Class PST (in respect of Class PST Component B or Class PST Component C), Class C and Class D Certificates for such Distribution Date. Any amount of Trust Advisor Expenses that are not reimbursed on a Distribution Date shall be payable on the next Distribution Date to the extent funds are sufficient, in accordance with this Section 6.11(b), to make such payments.
(c) To the extent any Actual Recoveries of Trust Advisor Expenses are received during any Collection Period, such amounts shall be allocated first, as an increase in the Aggregate Certificate Balance of each applicable Class of Principal Balance Certificates or EC
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REMIC III Regular Interest in the reverse order in which the Excess Trust Advisor Expenses were allocated in reduction of the Aggregate Certificate Balance of the Class A Senior Certificates, the Class D Certificates and/or any EC REMIC III Regular Interest pursuant to Section 6.11(a), with a corresponding increase in the Principal Distribution Amount for the related Distribution Date in the aggregate amount of such increases to such Aggregate Certificate Balances and then, as an increase in the Distributable Certificate Interest for the related Distribution Date in respect of the Class B REMIC III Regular Interest (and correspondingly, the portions thereof distributable on the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest), Class C REMIC III Regular Interest (and correspondingly, the portions thereof distributable on the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) and Class D Certificates, in that order, in each case, up to an amount equal to the aggregate reduction of the subject Class’s or EC REMIC III Regular Interest’s Distributable Certificate Interest for all prior Distribution Dates (including as payment to a more senior Class of Certificates or EC REMIC III Regular Interest in respect of interest shortfalls created by previously allocated Trust Advisor Expenses), to the extent not previously reimbursed.
On each Distribution Date, if and to the extent that Trust Advisor Expenses have been allocated to the Class B REMIC III Regular Interest on any prior Distribution Date in reduction of the Distributable Certificate Interest for such EC REMIC III Regular Interest, and such reductions in Distributable Certificate Interest for such EC REMIC III Regular Interest have not been previously reimbursed, then the Class B REMIC III Regular Interest (and correspondingly, the Class B Certificates and the Class PST Certificates, pro rata, based on the Class B Percentage Interest and the Class B-PST Percentage Interest, respectively, in the Class B REMIC III Regular Interest) will be entitled to reimbursement for the Trust Advisor Expense Interest Shortfall in respect of the Class B REMIC III Regular Interest for such Distribution Date (with a corresponding increase in the Distributable Certificate Interest with respect to the Class B REMIC III Regular Interest for such Distribution Date): first, out of amounts otherwise distributable as interest to the Holders of the Class D Certificates for such Distribution Date, up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class D Certificates for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”); and second, out of amounts otherwise distributable as interest to the Class C REMIC III Regular Interest (and correspondingly, the portions thereof distributable on the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) for such Distribution Date, up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class C REMIC III Regular Interest (and correspondingly, the portions thereof distributable on the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”).
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On each Distribution Date, if and to the extent that Trust Advisor Expenses have been allocated to the Class C REMIC III Regular Interest on any prior Distribution Date in reduction of the Distributable Certificate Interest for such EC REMIC III Regular Interest, and such reductions in Distributable Certificate Interest for such EC REMIC III Regular Interest have not been previously reimbursed, then the Class C REMIC III Regular Interest (and correspondingly, the Class C Certificates and the Class PST Certificates, pro rata, based on the Class C Percentage Interest and the Class C-PST Percentage Interest, respectively, in the Class C REMIC III Regular Interest) will be entitled to reimbursement for the Trust Advisor Expense Interest Shortfall in respect of the Class C REMIC III Regular Interest for such Distribution Date (with a corresponding increase in the Distributable Certificate Interest with respect to the Class C REMIC III Regular Interest for such Distribution Date) out of amounts otherwise distributable as interest to the Holders of the Class D Certificates for such Distribution Date, up to (and with a corresponding reduction in) the Distributable Certificate Interest with respect to the Class D Certificates for such Distribution Date (calculated for purposes of this paragraph without regard to clause (A)(3) of the definition of “Distributable Certificate Interest”), reduced by any reimbursement made on such Distribution Date to the Class B REMIC III Regular Interest pursuant to the prior paragraph out of amounts otherwise distributable as interest to the Holders of the Class D Certificates.
Any reimbursement made out of amounts otherwise distributable as interest to the Class C REMIC III Regular Interest or the Class D Certificates on any Distribution Date pursuant to any of the prior two (2) paragraphs, shall be deemed an allocation to such Class or EC REMIC III Regular Interest of the Trust Advisor Expenses being reimbursed to the Holders of a more senior Class of Certificates or the applicable EC REMIC III Regular Interest (and correspondingly, the Holders of the related Classes of Exchangeable Certificates).
(d) On each Distribution Date, if any Trust Advisor Expense is allocated to the Class B REMIC III Regular Interest, the Class C REMIC III Regular Interest or the Class D Certificates in reduction of the Distributable Certificate Interest of such Class of Certificates or EC REMIC III Regular Interest for such Distribution Date, then such Trust Advisor Expense will be deemed allocated to the Corresponding REMIC II Regular Interest in reduction of the Distributable Interest of such Corresponding REMIC II Regular Interest for such Distribution Date. In addition, on each Distribution Date, if any Excess Trust Advisor Expense is allocated to the Class A Senior Certificates, an EC REMIC III Regular Interest or the Class D Certificates in reduction of the Aggregate Certificate Balance of such Class of Certificates or EC REMIC III Regular Interest, then such Excess Trust Advisor Expense will be deemed allocated to the Corresponding REMIC II Regular Interest in reduction of the REMIC II Principal Amount of such Corresponding REMIC II Regular Interest.
(e) For the avoidance of doubt and notwithstanding anything to the contrary contained herein, each of the parties hereto acknowledges and agrees (and each Certificateholder, by its acceptance of such Certificate, is deemed to acknowledge and agree) that all calculations to be made hereunder in respect of the entitlement of the Control Eligible Certificates to receive interest, principal and other amounts (including P&I Advances in respect to such Certificates) shall be made such that (i) the Control Eligible Certificates shall be paid the amounts to which they are entitled on each Distribution Date as if no Trust Advisor Expenses had been incurred, reimbursed or reimbursable, and (ii) in no event shall any Trust Advisor Expenses reduce or
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delay in any manner any principal, interest or other amounts (including P&I Advances) payable or reimbursable to the Control Eligible Certificates.
ARTICLE
VII
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR
Section 7.1 Duties of the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee, the Custodian and the Certificate Administrator each shall undertake to perform only those duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Trustee, the Custodian or the Certificate Administrator. Any permissive right of the Trustee, the Custodian or the Certificate Administrator provided for in this Agreement shall not be construed as a duty of the Trustee, the Custodian or the Certificate Administrator. The Trustee, the Custodian and the Certificate Administrator each shall exercise such of the rights and powers vested in it by this Agreement and following the occurrence and during the continuation of any Servicer Termination Event or Trust Advisor Termination Event hereunder, the Trustee, the Custodian and the Certificate Administrator each shall use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) The Trustee, the Custodian or the Certificate Administrator, as applicable, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee, the Custodian or the Certificate Administrator, as the case may be, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement; provided that the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer or any other Person to it pursuant to this Agreement. If any such instrument is found on its face not to conform to the requirements of this Agreement, the Trustee, the Custodian or the Certificate Administrator shall request the providing party to correct the instrument and if not so corrected, the Certificate Administrator shall inform the Certificateholders.
(c) None of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall have any liability to the Trust or the Certificateholders arising out of or in connection with this Agreement, except for their respective negligent failure to act or their own negligence, willful misconduct or bad faith. No provision of this Agreement shall be construed to relieve the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons from liability for their own negligent action, their own negligent failure to act or their own willful misconduct or bad faith; provided that:
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(i) none of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or, to the extent not expressly inconsistent with the other terms of this Agreement, at the direction of Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates;
(ii) no provision of this Agreement shall require the Trustee, the Custodian or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(iii) except as specifically provided hereunder in connection with the performance of its specific duties, none of the Trustee, the Custodian, the Certificate Administrator or any of their respective directors, officers, employees, agents or Controlling Persons shall be responsible for any act or omission of the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor or any Seller, or for the acts or omissions of each other, including, without limitation, in connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee, the Custodian or the Certificate Administrator of any forms or plans of liquidation in connection with any REMIC Pool shall not constitute a representation by the Trustee, the Custodian or the Certificate Administrator as to the adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Custodian or the Certificate Administrator shall be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Trustee, the Custodian or the Certificate Administrator, as applicable in accordance with this Agreement. In such event, all legal expense and costs of such action shall be expenses and costs of the Trust, and the Trustee, the Custodian and the Certificate Administrator shall be entitled to be reimbursed therefor from the Collection Account pursuant to Section 5.2(a)(I)(vi); and
(vi) none of the Trustee, the Custodian or the Certificate Administrator shall be charged with knowledge of any failure by the Master Servicer, the Special Servicer or the Trust Advisor or by each other to comply with its obligations under this Agreement or any act, failure, or breach of any Person upon the occurrence of which the Trustee, the Custodian or the Certificate Administrator may be required to act, unless a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as the case may be, obtains actual knowledge of such failure.
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Section 7.2 Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Custodian and the Certificate Administrator each may request, and may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Custodian and the Certificate Administrator each may consult with counsel and the advice of such counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel;
(iii) the Trustee, the Custodian and the Certificate Administrator shall not be under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document (provided the same appears regular on its face), unless requested in writing to do so by Holders of Certificates evidencing at least 25% of the Voting Rights of all the Certificates; provided that, if the payment within a reasonable time to the Trustee, the Custodian or the Certificate Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the foregoing is, in the opinion of such Person not reasonably assured to such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding. The reasonable expenses of the Trustee, the Custodian or the Certificate Administrator, as applicable, shall be paid by the Certificateholders requesting such examination;
(iv) the Trustee, the Custodian and the Certificate Administrator each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee, the Custodian and the Certificate Administrator conferred on them by such appointment; provided that (i) each of the Trustee, the Custodian and the Certificate Administrator, as the case may be, shall continue to be responsible for its duties and obligations hereunder as if it had not retained such agent or attorney and (ii) the Trustee, the Custodian or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party without the consent of the Depositor acting in its sole discretion;
(v) none of the Trustee, the Custodian or the Certificate Administrator (in its capacity as such) shall be required to obtain a deficiency judgment against a Mortgagor;
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(vi) none of the Trustee, the Custodian or the Certificate Administrator shall be liable for any loss on any investment of funds pursuant to this Agreement, except as expressly provided herein; and
(vii) unless otherwise specifically required by law, none of the Trustee, the Custodian or the Certificate Administrator shall be required to post any surety or bond of any kind in connection with the execution or performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by the Trustee without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise solely out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Trustee.
(e) The Certificate Administrator shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise solely out of a breach by the Certificate Administrator of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Certificate Administrator.
Section 7.3 The Trustee, the Custodian and the Certificate Administrator Not Liable for Certificates or Interests or Mortgage Loans. The Trustee, the Custodian and the Certificate Administrator each makes no representations as to the validity or sufficiency of this Agreement, the Certificates or the information contained in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus (other than the Certificate of Authentication on the Certificates if the Certificate Administrator is the Authenticating Agent and the information in the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Trustee, the Custodian and the Certificate Administrator indemnify certain parties pursuant to the Trustee Indemnification Agreement, the Custodian
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Indemnification Agreement and the Certificate Administrator Indemnification Agreement, respectively) or of any Mortgage Loan, Assignment of Mortgage or related document save that each of the Trustee, the Custodian and the Certificate Administrator, as to itself, represents that, assuming due execution and delivery by the other parties hereto, this Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms except that such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law. None of the Trustee, the Custodian or the Certificate Administrator shall be accountable for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of any of the Certificates or any of the proceeds of such Certificates, or for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of funds paid in consideration of the assignment of the Mortgage Loans to the Trust or deposited into the Distribution Account or any other fund or account maintained with respect to the Certificates or any account maintained pursuant to this Agreement or for investment of any such amounts. No recourse shall be had for any claim based on any provisions of this Agreement, the Certificates or the Private Placement Memorandum or the Preliminary Prospectus or the Final Prospectus (except (i) with respect to the Trustee, to the extent of the information regarding the Trustee in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Trustee indemnifies certain parties pursuant to the Trustee Indemnification Agreement, (ii) with respect to the Custodian, to the extent of the information regarding the Custodian in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Custodian indemnifies certain parties pursuant to the Custodian Indemnification Agreement and (iii) with respect to the Certificate Administrator, to the extent of the information regarding the Certificate Administrator in each of the Private Placement Memorandum, the Free Writing Prospectus and the Prospectus Supplement for which the Certificate Administrator indemnifies certain parties pursuant to the Certificate Administrator Indemnification Agreement), the Mortgage Loans or the assignment thereof against the Trustee, the Custodian or the Certificate Administrator in such Person’s individual capacity and any such claim shall be asserted solely against the Trust or any indemnitor who shall furnish indemnity as provided herein. None of the Trustee, the Custodian or the Certificate Administrator (in its capacity as such) shall be liable for any action or failure of any action by the Depositor or the Master Servicer or the Special Servicer or the Trust Advisor or by each other hereunder. None of the Trustee, the Custodian or the Certificate Administrator shall at any time have any responsibility or liability for or with respect to the legality, validity or enforceability of the Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages or the maintenance of any such perfection and priority, or for or with respect to the efficacy of the Trust or its ability to generate the payments to be distributed to Certificateholders under this Agreement, including, without limitation, the existence, condition and ownership of any Mortgaged Property; the existence and enforceability of any hazard insurance thereon; the validity of the assignment of the Mortgage Loans to the Trust or of any intervening assignment; the completeness of the Mortgage Loans; the performance or enforcement of the Mortgage Loans (other than if the Trustee shall assume the duties of the Master Servicer); the compliance by the Depositor, each Seller, the Mortgagor, the Master Servicer, the Special Servicer, the Trust Advisor or each other with any warranty or representation made under this Agreement or in any
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related document or the accuracy of any such warranty or representation made under this Agreement or in any related document prior to the receipt by a Responsible Officer of the Trustee of notice or other discovery of any non-compliance therewith or any breach thereof; any investment of monies by or at the direction of the Master Servicer or the Special Servicer or any loss resulting therefrom; the failure of the Master Servicer or the Special Servicer to act or perform any duties required of it on behalf of the Trustee hereunder; or any action by the Trustee taken at the instruction of the Master Servicer or the Special Servicer.
Section 7.4 The Trustee, the Custodian and the Certificate Administrator May Own Certificates. Each of the Trustee, the Custodian and the Certificate Administrator in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Trustee, the Custodian or the Certificate Administrator, as the case may be.
Section 7.5 Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A2” by Moody’s (or in the case of Wilmington Trust, National Association, a long-term senior unsecured debt rating of at least “Baa2” by Moody’s if the Master Servicer has a long-term senior unsecured debt rating of at least “A2” by Moody’s and a short-term debt rating of at least “P-1 by Moody’s), at least “A-” by Fitch, and at least “AA (low)” by DBRS (or “A” by DBRS if such institution has a short-term unsecured debt rating of at least “R-1 (middle)” from DBRS (or “R-1 (low)” in the case of Wilmington Trust, National Association) (or, in the case of Wilmington Trust, National Association, a long-term senior unsecured debt rating of at least “A (low)” by DBRS if the Master Servicer has a long-term senior unsecured debt rating of at least “A” by DBRS or, if such institution is not rated by DBRS, “A” or higher by any two other NRSROs), and that has a short-term unsecured debt rating of at least “P-1” by Moody’s and at least “F1” by Fitch (or, in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(a), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency) and (iv) a Person that is not a Prohibited Party. If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.6.
(b) The Custodian hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing
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business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A2” by Moody’s, at least “A-” by Fitch and at least “AA (low)” by DBRS (or “A” by DBRS if such institution has a short-term unsecured debt rating of at least “R-1 (middle)” from DBRS or, if such institution is not rated by DBRS, “A” or higher by any two other NRSROs), and whose short-term unsecured debt is at all times rated at least “F1” by Fitch and at least “P-1” by Moody’s (or, in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(b), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency) and (iv) a Person that is not a Prohibited Party. If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Custodian shall cease to be eligible in accordance with provisions of this Section, the Custodian shall resign immediately in the manner and with the effect specified in Section 7.6.
(c) The Certificate Administrator shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association, organized and doing business under the laws of the United States of America or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, (iii) an institution whose long-term senior unsecured debt is at all times rated at least “A2” by Moody’s, at least “A-” by Fitch and at least “AA (low)” by DBRS (or “A” by DBRS if such institution has a short-term unsecured debt rating of at least “R-1 (middle)” from DBRS or, if such institution is not rated by DBRS, “A” or higher by any two other NRSROs), and whose short-term unsecured debt is at all times rated at least “P-1” by Moody’s and at least “F1” by Fitch (or, in the case of any Rating Agency with respect to either the long-term or short-term ratings specified in this Section 7.5(c), such lower rating or ratings as is the subject of a Rating Agency Confirmation from such Rating Agency) and (iv) a Person that is not a Prohibited Party. In case at any time the Certificate Administrator shall cease to be eligible in accordance with provisions of this Section, the Certificate Administrator shall resign immediately in the manner and with the effect specified in Section 7.6.
Section 7.6 Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator.
(a) The Trustee, the Custodian or the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the other such party, the Depositor, the Master Servicer, the Trust Advisor, each holder of a Serviced B Note or Serviced Companion Loan and the 17g-5 Information Provider; provided that such resignation shall not be effective until its successor shall have accepted the appointment. The Trustee, the Custodian and the Certificate Administrator, as applicable, shall bear all costs associated with its respective resignation and the appointment of a successor trustee, custodian or certificate administrator, as applicable. Upon receiving such notice of resignation, the Depositor
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shall promptly appoint a successor trustee, custodian or certificate administrator, as the case may be, except in the case of the initial Trustee and Certificate Administrator, in which case both shall be so replaced but may be replaced under this paragraph sequentially, by written instrument, one copy of which instrument shall be delivered to the resigning Trustee, one copy to the successor trustee and one copy to each of the Master Servicer, the Custodian, the Certificate Administrator and, subject to Section 5.7, the Rating Agencies. If no successor trustee, custodian or certificate administrator shall have been so appointed, as the case may be, and shall have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Trustee, Custodian or Certificate Administrator, as the case may be, may petition any court of competent jurisdiction for the appointment of a successor trustee, custodian or certificate administrator, as the case may be. It shall be a condition to the appointment of a successor trustee, custodian or certificate administrator that such entity satisfies the eligibility requirements set forth in Section 7.5 and if, and for so long as, the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, such appointment shall have been consented to by the Depositor or the depositor under the Other Companion Loan Pooling and Servicing Agreement, as the case may be (which consent shall not be unreasonably withheld).
(b) If at any time (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.5(a) and shall fail to resign after written request therefor by the Depositor, (ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Trustee or the Trust held by the Trustee is located solely because of the location of the Trustee in such state; provided, that, if the Trustee agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Trustee as such would result in a downgrade, qualification or withdrawal of the rating by the Rating Agencies of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor may remove such Trustee and appoint a successor trustee by written instrument, one copy of which instrument shall be delivered to the Trustee so removed, one copy to the successor trustee and one copy to each of the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the 17g-5 Information Provider. In the case of removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear all such costs of transfer. Such succession shall take effect after a successor trustee has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Trustee or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Trustee fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such failure to perform does not result from a failure to perform of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Trustee, the Trustee shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such request and, if the Trustee fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Trustee in accordance with the provisions set forth in this Section 7.6(b).
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(c) If at any time (i) the Custodian shall cease to be eligible in accordance with the provisions of Section 7.5(b) and shall fail to resign after written request therefor by the Depositor, (ii) the Custodian shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Custodian or of its property shall be appointed, or any public officer shall take charge or control of the Custodian or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Custodian or the Trust is located solely because of the location of the Custodian in such state; provided, that, if the Custodian agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Custodian as such would result in a downgrade, qualification or withdrawal of the rating by the Rating Agencies of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor may remove such Custodian and appoint a successor custodian by written instrument, one copy of which instrument shall be delivered to the Custodian so removed, one copy to the successor custodian and one copy to each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the 17g-5 Information Provider. In the case of removal under clauses (i), (ii), (iii) and (iv) above, the Custodian shall bear all such costs of transfer. Such succession shall take effect after a successor custodian has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Custodian or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Custodian fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such default does not result from a failure to perform of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Custodian, the Custodian shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such request and, if the Custodian fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Custodian in accordance with the provisions set forth in this Section 7.6(c).
(d) If at any time (i) the Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 7.5(c) and shall fail to resign after written request therefor by the Depositor, (ii) the Certificate Administrator shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Certificate Administrator or of its property shall be appointed, or any public officer shall take charge or control of the Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Certificate Administrator or the Trust is located solely because of the location of the Certificate Administrator in such state; provided, that, if the Certificate Administrator agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Certificate Administrator as such would result in a downgrade, qualification or withdrawal, as applicable, of the rating by any Rating Agency of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies, then the Depositor or the Trustee shall send a written notice of termination to the Certificate Administrator and the 17g-5 Information Provider (which notice shall specify the reason for such termination) and remove such Certificate Administrator and the Depositor shall appoint a successor Certificate Administrator by written instrument, one copy of which instrument shall be delivered to the Certificate Administrator so removed, one copy to the successor Certificate
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Administrator, and one copy to each of the Trustee, the Master Servicer, the Special Servicer and the 17g-5 Information Provider. In all such cases, the Certificate Administrator shall bear all costs of transfer to a successor Certificate Administrator, such succession only to take effect after a successor Certificate Administrator has been appointed. If the Trust, or any Other Securitization that holds a Serviced Companion Loan, is subject to the reporting requirements of the Exchange Act, and the Certificate Administrator or any Additional Servicer, Sub-Servicer, or Servicing Function Participant engaged by the Certificate Administrator fails to perform (subject to any applicable grace periods set forth therein) any of its obligations under Article XIII of this Agreement, and such failure to perform does not result from a default of any other party to this Agreement to deliver within the time frames required by Article XIII any reports or other information as set forth in such Article to the Certificate Administrator, the Certificate Administrator shall, if so requested by the Depositor, resign from its obligations hereunder within sixty (60) calendar days of such request and, if the Certificate Administrator fails to resign within such sixty (60) day period, the Depositor shall have the right to remove and replace the Certificate Administrator in accordance with the provisions set forth in this Section 7.6(d).
(e) The Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates may for cause upon thirty (30) days’ written notice to the Trustee, the Custodian or the Certificate Administrator, as the case may be, and to the Depositor, the Master Servicer and the Special Servicer, remove the Trustee, the Custodian or the Certificate Administrator, as the case may be, by such written instrument, signed by such Holders or their attorney-in-fact duly authorized, one copy of which instrument shall be delivered to the Depositor and one copy to the Trustee, the Custodian or the Certificate Administrator, as the case may be, so removed; and the Depositor shall thereupon use its best efforts to appoint a successor Trustee, the Custodian or Certificate Administrator, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Custodian or the Certificate Administrator, as the case may be, and appointment of a successor trustee, custodian or certificate administrator pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee, custodian or certificate administrator, as the case may be, as provided in Section 7.7. Upon any succession of the Trustee, the Custodian or the Certificate Administrator under this Agreement, the predecessor Trustee, Custodian or Certificate Administrator, as the case may be, shall be entitled to the payment of compensation and reimbursement agreed to under this Agreement for services rendered and expenses incurred. The Trustee, the Custodian or the Certificate Administrator shall not be liable for any action or omission of any successor trustee, custodian or certificate administrator, as the case may be.
(g) Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor, or upon the removal of the Trustee, the outgoing Trustee at its own expense (without right of reimbursement therefor, except in the case of removal without cause) shall ensure that, prior to consummation of such transaction or as part of its transfer of duties to any successor or at such later time as may be consented to by the Master Servicer and the Special Servicer, (A) the original executed Note for each Mortgage Loan is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered holders of Morgan Stanley Bank of America Merrill Lynch Trust
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2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 or in blank (or, alternatively, if the original executed Note has been lost, a lost note affidavit and indemnity with a copy of such Note), and (B) in the case of the other Mortgage Loan documents, are delivered or assigned as necessary to such successor, and such successor shall review the documents delivered to it or the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made.
Upon the resignation, assignment, merger, consolidation, or transfer of the Custodian or its business to a successor, or upon the removal of the Custodian, the outgoing Custodian, at its own expense (without right of reimbursement therefor, except in the case of removal without cause), shall ensure that, prior to consummation of such transaction or as part of its transfer of duties to any successor custodian, all Mortgage Loan documents in the Mortgage File for each Mortgage Loan, are delivered as necessary to such successor custodian, and such successor shall review the documents delivered to it with respect to each Mortgage Loan and certify in writing that, as to each Mortgage Loan then subject to this Agreement, it will accept delivery of the Mortgage File (on behalf of the Trustee) in accordance with Section 2.2.
(h) Following the Closing Date, for so long as the Trust, and, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, neither the Certificate Administrator nor the Custodian may appoint any sub-servicer that is or could become a Reporting Servicer without the prior written consent of the Depositor or the depositor with respect to the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, as the case may be, which consent shall not be unreasonably withheld.
Section 7.7 Successor Trustee, Custodian or Certificate Administrator.
(a) Any successor trustee, custodian or certificate administrator appointed as provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its predecessor Trustee, Custodian or Certificate Administrator, as the case may be, an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee, Custodian or Certificate Administrator, as the case may be, shall become effective and such successor trustee, custodian or certificate administrator, as the case may be, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee, Custodian or Certificate Administrator herein. The predecessor Trustee, Certificate Administrator or Custodian shall deliver (at such predecessor’s own expense) to the successor trustee, certificate administrator or custodian all Mortgage Files and documents and statements related to the Mortgage Files held by it hereunder, and the predecessor Trustee, Certificate Administrator or Custodian shall duly assign, transfer, deliver and pay over (at such predecessor’s own expense) to the successor trustee, certificate administrator or custodian, the entire Trust, together with all instruments of transfer and assignment or other documents properly executed necessary to effect such transfer. The predecessor Trustee, the Custodian or Certificate Administrator, as the case may be, shall also deliver all records or copies thereof maintained by the predecessor Trustee, Custodian or Certificate Administrator in the administration hereof as may be reasonably requested by the successor trustee, custodian or
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certificate administrator, as applicable, and shall thereupon be discharged from all duties and responsibilities under this Agreement. In addition, the Depositor and the predecessor Trustee, Custodian or Certificate Administrator shall execute and deliver such other instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee, custodian or certificate administrator, as the case may be, all such rights, powers, duties and obligations. Anything herein to the contrary notwithstanding, in no event shall the combined fees payable to the Certificate Administrator or a successor certificate administrator (inclusive of fees paid to the Trustee (or successor trustee) and the Custodian (or successor custodian)) exceed the Certificate Administrator Fee.
(b) No successor trustee, custodian or certificate administrator shall accept appointment as provided in this Section unless at the time of such appointment such successor trustee, custodian or certificate administrator, as the case may be, shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor trustee, custodian or certificate administrator as provided in this Section, the successor trustee, custodian or certificate administrator shall promptly provide written notice to the 17g-5 Information Provider and mail notice of the succession of such Trustee, Custodian or Certificate Administrator hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register and to each holder of a Serviced B Note or Serviced Companion Loan. The expenses of such mailing shall be borne by the successor trustee, custodian or certificate administrator. If the successor trustee, custodian or certificate administrator fails to mail such notice within ten (10) days after acceptance of appointment by the successor trustee, custodian or certificate administrator, the Master Servicer shall cause such notice to be mailed at the expense of the successor trustee, custodian or certificate administrator, as applicable.
Section 7.8 Merger or Consolidation of Trustee, Custodian or Certificate Administrator. Any Person into which the Trustee, Custodian or Certificate Administrator may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Trustee, Custodian or Certificate Administrator shall be a party, or any Persons succeeding to the corporate trust business of such Trustee, Custodian or Certificate Administrator, shall be the successor of such Trustee, Custodian or Certificate Administrator, as the case may be, hereunder, as applicable, provided that (i) such Person shall be eligible under the provisions of Section 7.5 and (ii) if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, such appointment shall have been consented to by the Depositor or the depositor under such Other Companion Loan Pooling and Servicing Agreement, as the case may be (which consent shall not be unreasonably withheld), without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The successor or surviving Person shall provide prompt notice of the merger or consolidation to the other parties hereto and the 17g-5 Information Provider.
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Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee, the Depositor or, in the case of the Trust, the Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates shall each have the power from time to time to appoint one or more Persons to act either as co-trustees jointly with the Trustee or as separate trustees, for the purpose of holding title to, foreclosing or otherwise taking action with respect to any Mortgage Loan outside the state where the Trustee has its principal place of business where such separate trustee or co-trustee is necessary or advisable (or the Trustee is advised by the Master Servicer or Special Servicer that such separate trustee or co-trustee is necessary or advisable) under the laws of any state in which a property securing a Mortgage Loan is located or for the purpose of otherwise conforming to any legal requirement, restriction or condition in any state in which a property securing a Mortgage Loan is located or in any state in which any portion of the Trust is located. The separate trustees, co-trustees, or custodians so appointed shall be trustees or custodians for the benefit of all the Certificateholders, shall have such powers, rights and remedies as shall be specified in the instrument of appointment and shall be deemed to have accepted the provisions of this Agreement; provided that no such appointment shall, or shall be deemed to, constitute the appointee an agent of the Trustee; provided, further, that the Trustee shall not be liable for the actions of any co-trustee or separate trustee appointed by it with due care and shall have no liability for the actions of any co-trustee or separate trustee appointed by the Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee, the Custodian or the Certificate Administrator, as the case may be, may from time to time appoint one or more independent third-party agents to perform all or any portion of its administrative duties hereunder (i.e., collection and distribution of funds, preparation and dissemination of reports, monitoring compliance, etc.). The Trustee, the Custodian or the Certificate Administrator, as the case may be, shall supervise and oversee such agents appointed by it. The terms of any arrangement or agreement between the Trustee, the Custodian or the Certificate Administrator, as the case may be, and such agent, may be terminated, without cause and without the payment of any termination fees if the Trustee, the Custodian or the Certificate Administrator, as the case may be, is terminated in accordance with this Agreement. In addition, neither the Trust nor the Certificateholders shall have any liability or direct obligation to such agent. Notwithstanding the terms of any such agreement, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall remain at all times obligated and liable to the Trust and the Certificateholders for performing its duties hereunder and for all acts of its agents.
(c) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the Trustee in respect of the receipt, custody and payment of moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the
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Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer hereunder) the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations, including the holding of title to the Trust or any portion thereof in any such jurisdiction, shall be exercised and performed by such separate trustee or co-trustee;
(iii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iv) the Trustee or, in the case of the Trust, the Holders of Certificates evidencing not less than a majority of the Voting Rights of all the Certificates may at any time accept the resignation of or remove any separate trustee or co-trustee, so appointed by it or them, if such resignation or removal does not violate the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
(f) No separate trustee or co-trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 7.5 hereof and no notice to Certificateholders of the appointment of any separate trustee or co-trustee hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the extent necessary to fulfill the Trustee’s obligations hereunder.
(h) The reasonable compensation of the co-trustees or separate trustees appointed shall be paid by the Trust pursuant to this Section 7.9 to the extent, and in accordance with the standards, specified in Section 7.12 hereof.
Section 7.10 Authenticating Agents.
(a) The Certificate Administrator shall serve as the initial Authenticating Agent hereunder for the purpose of executing and authenticating Certificates. Any successor
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Authenticating Agent must be acceptable to the Depositor and must be a corporation, national bank or national banking association organized and doing business under the laws of the United States of America or of any state and having a principal office and place of business in the Borough of Manhattan in the City and State of New York, having a combined capital and surplus of at least $50,000,000, authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Authenticating Agent shall be a party, or any Person succeeding to the corporate agency business of the Authenticating Agent, shall continue to be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least thirty (30) days’ advance written notice of resignation to the Trustee, the Custodian, the Certificate Administrator and the Depositor. The Trustee may at any time terminate the agency of the Authenticating Agent by giving written notice of termination to the Authenticating Agent and the Depositor; provided that the Trustee may not terminate the Certificate Administrator as Authenticating Agent unless the Certificate Administrator shall be removed as Certificate Administrator hereunder. Upon receiving a notice of resignation or upon such a termination, or in case at any time the Authenticating Agent shall cease to be eligible in accordance with the provisions of Section 7.10(a), the Trustee may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Depositor and shall mail notice of such appointment to all Holders of Certificates. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. No such Authenticating Agent shall be appointed unless eligible under the provisions of Section 7.10(a). No Authenticating Agent shall have responsibility or liability for any action taken by it as such at the direction of the Trustee.
Section 7.11 Indemnification of Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee (whether individually, or in its capacity as Trustee), the Custodian, the Certificate Registrar and the Certificate Administrator and each of their respective directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action incurred without negligence, bad faith or willful misconduct on their respective part, arising out of, or in connection with this Agreement, the Mortgage Loans, the Certificates and the acceptance or administration of the trusts or duties created hereunder (including, without limitation, any unanticipated loss, liability or expense incurred in connection with any action or inaction of the Master Servicer, the Special Servicer, the Trust Advisor or the Depositor or of each other such Person hereunder but only to the extent the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, is unable to recover within a reasonable period of time such amount from such third party pursuant to this
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Agreement) including the costs and expenses of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, and the Trustee, the Custodian, the Certificate Registrar and the Certificate Administrator and each of their respective directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for any unanticipated loss, liability or expense incurred without negligence, bad faith or willful misconduct in connection with the provision by the Trustee, the Custodian, the Certificate Registrar and the Certificate Administrator of the reports required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall have given the Depositor, the Master Servicer, the Sellers, each other and the Holders of the Certificates written notice thereof promptly after a Responsible Officer of the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall have actual knowledge thereof; provided that failure to give such notice to the Depositor, Master Servicer, the Sellers, each other and the Holders of Certificates shall not affect the Trustee’s, the Custodian’s, Certificate Registrar’s or Certificate Administrator’s, as the case may be, rights to indemnification herein unless the Depositor’s defense of such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section 7.11, the Trust shall not be liable for settlement of any such claim by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, entered into without the prior consent of the Depositor (unless the Depositor is in bankruptcy or otherwise legally unable to consent), which consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination of this Agreement and the resignation or removal of the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees or agents and Controlling Persons from and against any loss, claim, damage or liability, and any action in respect thereof, to which the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees or agents or Controlling Persons may become subject under the Securities Act, insofar as such loss, claim, damage, liability or action arises out of, or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus, or arises out of, or is based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and shall reimburse the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, their respective directors, officers, employees,
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agents or Controlling Persons for any legal and other expenses reasonably incurred by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, or any such director, officer, employee, agent or Controlling Person in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action; provided, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission made in the Private Placement Memorandum, the Preliminary Prospectus or the Final Prospectus in reliance upon and in conformity with written information concerning the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, furnished to the Depositor by or on behalf of such person specifically for inclusion therein. It is hereby expressly agreed that the only written information provided by the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, for inclusion in the Private Placement Memorandum, the Preliminary Prospectus and the Final Prospectus is, in the case of the Trustee, the information for which the Trustee indemnifies certain parties pursuant to the Trustee Indemnification Agreement, in the case of the Custodian, the information for which the Custodian indemnifies certain parties pursuant to the Custodian Indemnification Agreement and, in the case of the Certificate Administrator, the information for which the Certificate Administrator indemnifies certain parties pursuant to the Certificate Administrator Indemnification Agreement. The Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, shall immediately notify the Depositor, the Underwriters, the Initial Purchasers and the Sellers if a claim is made by a third party that would entitle such Person, its directors, officers, employees, agents or Controlling Persons to indemnification under this Section 7.11(c), whereupon the Depositor shall assume the defense of any such claim (with counsel reasonably satisfactory to such person) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Depositor shall not affect any rights the Trustee, the Custodian, the Certificate Registrar or the Certificate Administrator, as the case may be, or any of their respective directors, officers, employees, agents or Controlling Persons may have to indemnification under this Section 7.11(c), unless the Depositor’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or removal of the Trustee, the Custodian or the Certificate Administrator. The Depositor shall not be indemnified by the Trust for any expenses incurred by the Depositor arising from any violation or alleged violation of the Securities Act or Exchange Act by the Depositor.
(d) The Custodian agrees to indemnify the Depositor, the Trust, the Trustee, the Certificate Administrator and any director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Custodian’s duties hereunder or by reason of negligent disregard of the Custodian’s obligations and duties hereunder (including a breach of such obligations and duties, a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Custodian is replaced, the parties hereto agree that the amount of such claims, losses, penalties,
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fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor custodian.
(e) Each of the Trustee and the Certificate Administrator agrees (severally and not jointly) to indemnify the Depositor, the Trust, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Custodian and any director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of such indemnifying party’s duties hereunder or by reason of negligent disregard of such indemnifying party’s obligations and duties hereunder (including a breach of such obligations, a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Trustee or Certificate Administrator, as applicable, is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor trustee or certificate administrator, as applicable.
Section 7.12 Fees and Expenses of Trustee, the Custodian and the Certificate Administrator. The Trustee shall be entitled to receive the Trustee Fee, the Certificate Administrator shall be entitled to receive the Certificate Administrator Fee (other than the portions thereof constituting the Trustee Fee and the Custodian Fee) and the Custodian shall be entitled to receive the Custodian Fee, pursuant to Section 5.3(b)(ii) (which shall not be limited by any provision of law with respect to the compensation of a trustee of an express trust), for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties, respectively, hereunder of the Trustee, the Custodian and the Certificate Administrator. Each of the Trustee, the Custodian and the Certificate Administrator shall also be entitled to recover from the Trust all reasonable unanticipated out-of-pocket expenses and disbursements incurred or made by such party in connection with the exercise of such party’s rights or duties under this Agreement (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and other Persons not regularly in its employ), not including expenses incurred in the ordinary course of performing its duties (including allocable overhead expenses) as Trustee, the Custodian or Certificate Administrator, respectively, hereunder, and except any such expense, disbursement or advance as may arise from the negligence, willful misconduct or bad faith of such Person or which is the responsibility of the Holders of the Certificates hereunder. The provisions of this Section 7.12 shall survive any termination of this Agreement and the resignation or removal of the Trustee, the Custodian or the Certificate Administrator.
Section 7.13 Collection of Moneys. Except as otherwise expressly provided in this Agreement, the Trustee, the Custodian and the Certificate Administrator may demand payment or delivery of, and shall receive and collect, all money and other property payable to or receivable by the Trustee, the Custodian or the Certificate Administrator, as the case may be, pursuant to this Agreement. The Trustee, the Custodian or the Certificate Administrator, as the case may be, shall hold all such money and property received by it as part of the Trust and shall distribute it as provided in this Agreement. If the Trustee, the Custodian or the Certificate
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Administrator, as the case may be, shall not have timely received amounts to be remitted with respect to the Mortgage Loans from the Master Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall request the Master Servicer to make such distribution as promptly as practicable or legally permitted. If the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall subsequently receive any such amount, it may withdraw such request.
Section 7.14 Trustee To Act; Appointment of Successor.
(a) On and after the time the Master Servicer is terminated or resigns pursuant to this Agreement, and if no successor to the terminated or resigning Master Servicer is otherwise appointed hereunder, the Trustee shall be the successor in all respects to the Master Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Master Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Master Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder. In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Master Servicer contained in this Agreement or (ii) any obligation incurred by the Master Servicer prior to its termination or resignation (including, without limitation, the Master Servicer’s obligation to repay losses resulting from the investment of funds in any account established under this Agreement). In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Master Servicer in this Agreement. As compensation therefor, the Trustee shall be entitled to receive all the compensation payable to the Master Servicer set forth in this Agreement, including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint any established commercial or multifamily mortgage finance institution, servicer or master servicer or mortgage servicing institution having a net worth of not less than $15,000,000, meeting such other standards for a successor master servicer as are set forth in this Agreement and with respect to which the Trustee has provided a Rating Agency Communication to each Rating Agency, as the successor to the Master Servicer hereunder in the assumption of all of the responsibilities, duties or liabilities of a servicer as Master Servicer hereunder. Pending any such appointment, the Trustee shall act as the Master Servicer as hereinabove provided. Any entity designated by the Trustee as successor Master Servicer may be an Affiliate of the Trustee; provided that, such Affiliate must meet the standards for the Master Servicer as set forth herein. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall agree subject to Section 8.10, provided that no such compensation shall be in excess of that permitted to be paid to the Master Servicer under this Agreement. The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession. The Master Servicer shall cooperate with the Trustee and any successor servicer in effecting the termination of the Master Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the Trustee and successor servicer all documents and
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records in its possession in electronic or other form reasonably requested by the successor servicer to enable the successor servicer to assume the Master Servicer’s functions hereunder and the transfer to the Trustee or such successor servicer of all amounts which shall at the time be or should have been deposited by the Master Servicer in the Collection Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Master Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other successor servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer. The Trustee shall be reimbursed by the Trust for all of its out-of-pocket expenses incurred in connection with obtaining such successor Master Servicer within thirty (30) days of the Trustee’s submission of an invoice with respect thereto, to the extent such expenses have not been reimbursed by the Master Servicer as provided herein; and such expenses paid by the Trust shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant to this Agreement, in accordance with Section 9.30, or resigns pursuant to this Agreement, and if a successor to the terminated or resigning Special Servicer is not otherwise appointed hereunder, the Trustee shall be the successor in all respects to the Special Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Special Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Special Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder. In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Special Servicer contained in this Agreement or (ii) any obligation incurred by the Special Servicer prior to its termination or resignation. In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Special Servicer in this Agreement. As compensation therefor, the Trustee shall be entitled to receive all the compensation payable to the Special Servicer set forth in this Agreement, including, without limitation the Special Servicer Compensation (other than any Workout Fee payable to the predecessor Special Servicer pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be unwilling to so act, or shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint, any established commercial or multifamily mortgage finance institution, special servicer or mortgage servicing institution having a net worth of not less than $15,000,000, and meeting such other standards for a successor Special Servicer as are set forth in Section 9.30(g), and with respect to which the Trustee has provided a Rating Agency Communication to each Rating Agency, as the successor to the Special Servicer hereunder in the assumption of all of the responsibilities, duties or liabilities of a special servicer as Special Servicer hereunder. Pending any such appointment, the Trustee shall act as the Special Servicer as hereinabove provided. Any entity designated by the Trustee as successor Special Servicer may be an Affiliate of the Trustee; provided that, such Affiliate must meet the standards for a successor Special Servicer set forth herein. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor
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out of payments on Mortgage Loans as it and such successor shall agree; provided that no such compensation shall be in excess of that permitted to the Special Servicer under this Agreement. The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession. The Special Servicer shall cooperate with the Trustee and any successor Special Servicer in effecting the termination of the Special Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors under Specially Serviced Mortgage Loans of the assignment of the special servicing function and providing the Trustee and successor Special Servicer all documents and records in its possession in electronic or other form reasonably requested by the successor Special Servicer to enable the successor Special Servicer to assume the Special Servicer’s functions hereunder and the transfer to the Trustee or such successor Special Servicer of all amounts which shall at the time be or should have been deposited by the Special Servicer in the Collection Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other successor Special Servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Special Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Special Servicer. The Trustee shall be reimbursed by the Trust for all of its out-of-pocket expenses incurred in connection with obtaining such successor Special Servicer within thirty (30) days of submission of an invoice with respect thereto but only to the extent such expenses have not been reimbursed by the Special Servicer as provided herein; and such expenses paid by the Trust shall be deemed to be an Additional Trust Expense. During any Subordinate Control Period, any appointment of a successor Special Servicer by the Trustee (or the Trustee’s acting as successor Special Servicer) shall be subject to the rights of the Controlling Class Representative to terminate and replace such successor Special Servicer, with or without cause, in accordance with this Agreement (including Section 9.30).
Section 7.15 Notification to Holders. Upon termination of, or a Servicer Termination Event by, the Master Servicer, the Certificate Administrator, the Custodian or the Special Servicer, or appointment of a successor to the Master Servicer, the Custodian, the Certificate Administrator or the Special Servicer, the Trustee shall promptly provide written notice to the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period or any Collective Consultation Period), the Trust Advisor, the Depositor, the Initial Purchasers, the Underwriters, the Sellers and the Certificateholders at their respective addresses appearing on the Certificate Register.
Section 7.16 Representations and Warranties of the Trustee, the Custodian and the Certificate Administrator.
(a) The Trustee hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
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(ii) the execution and delivery by the Trustee of this Agreement have been duly authorized by all necessary action on the part of the Trustee; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Trustee or its properties that would materially and adversely affect the Trustee’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Trustee, or (iii) the terms of any material agreement or instrument to which the Trustee is a party or by which it is bound; and the Trustee is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Trustee to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Trustee and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee’s knowledge, threatened, against the Trustee that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Trustee to perform under the terms of this Agreement.
(b) The Custodian hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Custodian is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Custodian of this Agreement have been duly authorized by all necessary action on the part of the Custodian; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Custodian or its
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properties that would materially and adversely affect the Custodian’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Custodian, or (iii) the terms of any material agreement or instrument to which the Custodian is a party or by which it is bound; and the Custodian is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Custodian of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Custodian to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Custodian and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Custodian, enforceable against the Custodian in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Custodian’s knowledge, threatened, against the Custodian that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Custodian to perform under the terms of this Agreement.
(c) The Certificate Administrator hereby represents and warrants to each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date that:
(i) the Certificate Administrator is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Certificate Administrator of this Agreement have been duly authorized by all necessary action on the part of the Certificate Administrator; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Certificate Administrator or its properties that would materially and adversely affect the Certificate Administrator’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Certificate Administrator, or (iii) the terms of any material agreement or instrument to which the Certificate Administrator is a party or by which it is bound; and the Certificate Administrator is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental
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agency, which default would materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Certificate Administrator of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Certificate Administrator to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the Certificate Administrator and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the best of the Certificate Administrator’s knowledge, threatened, against the Certificate Administrator that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Certificate Administrator to perform under the terms of this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee, the Custodian and the Certificate Administrator. Each of the Trustee, the Custodian and the Certificate Administrator, at its own respective expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified Insurer in form and in amount customary for trustees, custodians or certificate administrators in similar transactions (unless the Trustee, the Custodian or the Certificate Administrator, as the case may be, self-insures as provided below). If any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Trustee, the Custodian or the Certificate Administrator, as the case may be, is not less than “A (low)” as rated by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two other NRSRO’s (which may include S&P, Fitch and/or Moody’s)), not less than “A3” as rated by Moody’s and not less than “A-” as rated by Fitch, the Trustee, the Custodian or the Certificate Administrator, as the case may be, may self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Capacities. The rights, privileges, protections and indemnities afforded to the Trustee, the Custodian or the Certificate Administrator in such capacity pursuant to this Agreement shall also be for the benefit of the Trustee, the Custodian or the Certificate Administrator, as the case may be, in each other capacity that such Person serves hereunder,
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including as Certificate Registrar, Authenticating Agent and 17g-5 Information Provider, as applicable.
ARTICLE
VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.
(a) Subject to the express provisions of this Agreement, for and on behalf of the Trust and for the benefit of the Certificateholders as a whole, and, solely as it relates to any A/B Whole Loan, for the benefit of the holder of the related Serviced B Note and, solely as it relates to any Loan Pair, for the benefit of the holder of the related Serviced Companion Loan, the Master Servicer (except as otherwise expressly set forth herein to the contrary) shall service and administer the Mortgage Loans, any Serviced B Note and any Serviced Companion Loan in accordance with the Servicing Standard and the terms of this Agreement; provided, that notwithstanding anything herein to the contrary, the Special Servicer shall process all Major Decisions and Special Servicer Decisions with respect to the Mortgage Loans (other than Non-Serviced Mortgage Loans), any Serviced B Note and any Serviced Companion Loan (except that the Master Servicer and the Special Servicer may mutually agree that the Master Servicer shall process, and obtain the prior written consent of the Special Servicer with respect to, any such Major Decision or Special Servicer Decision with respect to Mortgage Loans (other than Non-Serviced Mortgage Loans) that are not Specially Serviced Mortgage Loans); provided, further, that each Non-Serviced Mortgage Loan shall be serviced by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer in accordance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Certain of the provisions of this Article VIII make explicit reference to their applicability to Mortgage Loans, any Serviced B Note and any Serviced Companion Loan; notwithstanding such explicit references, references to “Mortgage Loans” contained in this Article VIII, unless otherwise specified, shall be construed to refer also to such Serviced B Note and Serviced Companion Loan (but any other terms that are defined in Article I and used in this Article VIII shall be construed according to such definitions without regard to this sentence).
In connection with such servicing and administration, the Master Servicer shall seek to maximize the timely collection of principal and interest on the Mortgage Notes in the best economic interests of the Certificateholders as a whole (or, in the case of any A/B Whole Loan or Loan Pair the Certificateholders and the holder of the related Serviced B Note and/or Serviced Companion Loan, as applicable, all taken as a collective whole); provided, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer of the collectability of payments on the Mortgage Loans or shall be construed as impairing or adversely affecting any rights or benefits specifically provided by this Agreement to the Master Servicer, including with respect to Master Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause (x) of this subsection (b), and the Special Servicer, in the case of an event specified in clause (y) of this subsection (b), shall each send a written notice to the other and to the Trustee, the Custodian, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control
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Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Depositor, the applicable Seller and, in the case of an A/B Whole Loan, the holder of the related Serviced B Note and, in the case of a Loan Pair, the holder of the related Serviced Companion Loan, within five (5) Business Days after becoming aware (x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan (and, in the case of an A Note (or Serviced B Note) that was a Specially Serviced Mortgage Loan, any related Serviced B Note (or A Note) has also become a Rehabilitated Mortgage Loan and, in the case of a Serviced Pari Passu Mortgage Loan (or Serviced Companion Loan) that was a Specially Serviced Mortgage Loan, its related Serviced Companion Loan (or Serviced Pari Passu Mortgage Loan) has also become a Rehabilitated Mortgage Loan, which notice shall be effective upon receipt and shall identify the applicable Mortgage Loan and, in the case of an event specified in clause (x) of this subsection (b), the Servicing Transfer Event that occurred. After the transfer of servicing with respect to any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with the Servicing Standard, the Master Servicer shall notify, in writing, the Mortgagor under such Specially Serviced Mortgage Loan transferred to the Special Servicer, of such transfer.
(c) With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) that is subject to an Environmental Insurance Policy, for as long as it is not a Specially Serviced Mortgage Loan, if the Master Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, the Master Servicer shall notify the Special Servicer to such effect and the Master Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer or the Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a Non-Specially Serviced Mortgage Loan (other than a Non-Serviced Mortgage Loan), the Special Servicer shall give prompt written notice of such extension to the insurer under the Environmental Insurance Policy (if any) and shall execute such documents as are reasonably required by such insurer to procure an extension of such policy (if available). The Special Servicer shall provide copies of any such notice or documents to the Master Servicer promptly following the execution or delivery thereof, as applicable.
(e) The parties hereto acknowledge that each Serviced Pari Passu Mortgage Loan and its related Serviced Companion Loan and each A Note and its related Serviced B Note is subject to the terms and conditions of the related Intercreditor Agreement, and each such party agrees that the provisions of each Intercreditor Agreement that are required by their terms to be set forth in this Agreement are hereby incorporated herein. With respect to each Loan Pair and each A/B Whole Loan, the Trustee, the Master Servicer and the Special Servicer recognize the respective rights and obligations of the Trust and the holders of each Serviced Companion Loan and/or Serviced B Note, as applicable, under the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents), including with respect to the allocation of collections on or in respect of any Serviced Pari Passu Mortgage Loan, Serviced Companion Loan, A Note and
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Serviced B Note, as the case may be, in accordance with the related Intercreditor Agreement. The Master Servicer shall comply with the applicable provisions of each Intercreditor Agreement, and if any Serviced Pari Passu Mortgage Loan, Serviced Companion Loan, A Note or Serviced B Note are then Specially Serviced Mortgage Loans, the Special Servicer shall comply with the applicable provisions of the related Intercreditor Agreement. The parties hereto agree that any conflict between the terms of this Agreement and the terms of any Intercreditor Agreement shall be resolved in favor of the Intercreditor Agreement.
(f) Promptly following the Closing Date (or, with respect to the TKG 3 Retail Portfolio Mortgage Loan, the TKG 3 Retail Portfolio Companion Loan Securitization Date), the Master Servicer shall send written notice to each Non-Serviced Mortgage Loan Master Servicer in accordance with the provisions of the related Intercreditor Agreement including payment instructions for distributions on such Non-Serviced Mortgage Loan and stating that, as of such date, the Trustee is the holder of the applicable Non-Serviced Mortgage Loan, and directing such Non-Serviced Mortgage Loan Master Servicer to remit to the Master Servicer all amounts payable to, and directing such Non-Serviced Mortgage Loan Master Servicer to forward, deliver or otherwise make available, as the case may be, to, the Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, such holder of the applicable Non-Serviced Mortgage Loan under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement. On the TKG 3 Retail Portfolio Companion Loan Securitization Date, in connection with the transfer of servicing (including transmittal of the foregoing information as part of that servicing transfer) to the related Non-Serviced Mortgage Loan Master Servicer, the Master Servicer shall be deemed to have provided such written notice in respect of the TKG 3 Retail Portfolio Mortgage Loan. Notwithstanding anything to the contrary herein, the Master Servicer shall be deemed to have provided to the related Non-Serviced Mortgage Loan Master Servicer the notices described in this clause (f) if it is the same entity as such Non-Serviced Mortgage Loan Master Servicer.
(g) Each Non-Serviced Mortgage Loan shall be serviced and administered by the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement, except as otherwise specifically provided in this Agreement. If any Non-Serviced Companion Loan that is an asset under the trust created by the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement is removed from the pool of mortgage loans created under such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise terminated, the servicing of the Non-Serviced Mortgage Loan shall be transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor Agreement, and shall be serviced and administered by a successor servicing agreement, which shall have similar provisions to such Non-Serviced Mortgage Loan Pooling and Servicing Agreement to the extent set forth in the related Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be subject to the delivery by the Master Servicer of a Rating Agency Communication to each Rating Agency.
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer. The Master Servicer, at its expense, shall maintain in
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effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master Servicer self-insures as provided below) and be in form and amount consistent with the Servicing Standard. If any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, then the Master Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Master Servicer is not less than “A (low)” as rated by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two other NRSROs (which may include S&P, Fitch and/or Moody’s) (or an A.M. Best equivalent)), not less than “A3” as rated by Moody’s and not less than “A-” as rated by Fitch (or an A.M. Best equivalent)), the Master Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicer’s General Power and Duties.
(a) The Master Servicer shall (except as otherwise expressly set forth herein to the contrary) service and administer the Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and 10.3 and Article XII hereof and as otherwise provided herein and by the Code, have full power and authority to do any and all things which it may deem necessary or desirable in connection with such servicing and administration in accordance with the Servicing Standard (in the case of any A/B Whole Loan and any Loan Pair, subject to the applicable Intercreditor Agreement and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable). To the extent consistent with the foregoing and subject to any express limitations and provisions set forth in this Agreement (and, in the case of any A/B Whole Loan and any Loan Pair, subject to the applicable Intercreditor Agreement and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), including Section 10.3, such power and authority shall include, without limitation, any right to process Major Decisions and Special Servicer Decisions as mutually agreed between the Master Servicer and the Special Servicer pursuant to the terms hereof and the right, subject to the terms hereof, to perform the following actions (solely to the extent that they do not constitute Major Decisions or Special Servicer Decisions): (A) to execute and deliver, on behalf of the Certificateholders (and in connection with any Serviced B Note, the holder of the Serviced B Note and, in connection with any Loan Pair, the holder of the Serviced Companion Loan) and the Trustee, customary consents or waivers and other instruments and documents (including, without limitation, estoppel certificates, financing statements, continuation statements, title endorsements and reports and other documents and instruments necessary to preserve and maintain the lien on the related Mortgaged Property and related collateral), (B) to consent to assignments and assumptions or substitutions, and transfers of interest of any Mortgagor, in each case subject to and in accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any subordinate financings to be secured by any related Mortgaged Property to the extent that such consent is required pursuant to the terms of the related Mortgage or which otherwise is required, and subject to Section 8.7, to
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consent to any mezzanine debt to the extent such consent is required pursuant to the terms of the related Mortgage, (E) to consent to the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise and to administer and monitor the application of such proceeds and awards in accordance with the terms of the Mortgage Loan as the Master Servicer deems reasonable under the circumstances, (F) to execute and deliver, on behalf of the Certificateholders (and the holders of any Serviced B Note and Serviced Companion Loan) and the Trustee, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties, including agreements and requests by the Mortgagor with respect to modifications of the standards of operation and management of the Mortgaged Properties or the replacement of asset managers, (G) to consent to any operation or action under a Mortgage Loan that is contemplated or permitted under a Mortgage or other documents evidencing or securing the applicable Mortgage Loan (either as a matter of right or upon satisfaction of specified conditions), (H) to obtain, release, waive or modify any term other than a Money Term of a Mortgage Loan and related documents subject to and to the extent permitted by Section 8.18, (I) to exercise all rights, powers and privileges granted or provided to the holder of the Mortgage Notes, any Serviced Companion Loan and any Serviced B Note under the terms of the Mortgage, including all rights of consent or approval thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter into lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements which may be requested by the Mortgagor or the Mortgagor’s tenants, (K) to join the Mortgagor in granting, modifying or releasing any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties to the extent such does not adversely affect the value of the related Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of itself, the Trustee, the Trust (and the holders of any Serviced B Note and Serviced Companion Loan) or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties, and (M) to hold in accordance with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing clauses (A) through (M) are referred to collectively as “Master Servicer Consent Matters.” Notwithstanding the above, the Master Servicer shall have no power to (i) waive any Prepayment Premiums, (ii) consent to any modification of a Money Term of a Mortgage Loan or (iii) to exercise such rights or take any of the foregoing actions in violation of Section 10.3 or the terms and conditions of any related Intercreditor Agreement, or otherwise in contravention of the Controlling Class Representative’s or any related Loan-Specific Directing Holder’s, as applicable, rights to consent to or consult in respect of any such matters pursuant to this Agreement (subject to the Master Servicer’s duty to service in accordance with the Servicing Standard). Nothing contained in this Agreement shall limit the ability of the Master Servicer or the Special Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property), accept deposits from and otherwise generally engage in any kind of business or dealings with any Mortgagor as though the Master Servicer or the Special Servicer, as applicable, was not a party to this Agreement or to the transactions contemplated hereby; provided, that this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and administer any Mortgage Loan if it has become and continues to be a Specially Serviced Mortgage Loan, nor shall it be obligated to process Major Decisions or Special Servicer Decisions with respect to the
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Mortgage Loans, in each case except as specifically provided herein. The Master Servicer shall be required to make all calculations and prepare all reports required hereunder with respect to Specially Serviced Mortgage Loans (other than calculations and reports expressly required to be made by the Special Servicer hereunder) as if no Servicing Transfer Event had occurred and shall continue to collect all Scheduled Payments, make Advances as set forth herein and render such incidental services with respect to Specially Serviced Mortgage Loans, all as are specifically provided for herein, but shall have no other servicing or other duties with respect to Specially Serviced Mortgage Loans. Notwithstanding the foregoing, the Master Servicer shall not be liable for its failure to make the calculations or prepare the reports required pursuant to the immediately preceding sentence with respect to any Specially Serviced Mortgage Loan if such failure is directly caused by the Special Servicer’s failure to provide the Master Servicer with the information that it is required to deliver to the Master Servicer pursuant to Section 9.32(a). The Master Servicer shall give notice within three (3) Business Days to the Special Servicer of any collections it receives from any Specially Serviced Mortgage Loans, subject to changes agreed upon from time to time by the Special Servicer and the Master Servicer. The Special Servicer shall instruct the Master Servicer within two (2) Business Days after receiving such notice on how to apply such funds. The Master Servicer within one (1) Business Day after receiving such instructions shall apply such funds in accordance with the Special Servicer’s instructions. Each Mortgage Loan if it becomes a Specially Serviced Mortgage Loan shall continue as such until it becomes a Rehabilitated Mortgage Loan. The Master Servicer shall not be required to initiate extraordinary collection procedures or legal proceedings with respect to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee shall sign a Power of Attorney substantially in the form attached hereto as Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer). From time to time until the termination of the Trust, upon written request from a Servicing Officer for additional powers of attorney from the Trustee to the Master Servicer, the Trustee shall execute and return to the Master Servicer any additional powers of attorney, substantially in the form of Exhibit O-1 (or such other form as mutually agreed to by the Trustee and the Master Servicer) and other documents necessary or appropriate to enable the Master Servicer to service and administer the Mortgage Loans including, without limitation, documents relating to the management, operation, maintenance, repair, leasing or marketing of the Mortgaged Properties. The Master Servicer shall indemnify the Trustee for any costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee in connection with the intentional or negligent misuse of such power of attorney by the Master Servicer. Notwithstanding anything contained herein to the contrary, but subject to Section 9.34 herein, the Master Servicer shall not without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s representative capacity, or (ii) knowingly take any action that causes the Trustee to be registered to do business in any state, provided that the preceding clause (i) shall not apply to the initiation of actions relating to a Mortgage Loan that the Master Servicer is servicing pursuant to its respective duties herein (in which case the Master Servicer shall give prompt prior notice to the Trustee of the initiation of such action). The limitations of the preceding clause shall not be construed to limit any duty or obligation imposed on the Trustee under any other provision of this Agreement.
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(d) The Master Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all payments (including servicing fees, special servicing fees, workout fees and liquidation fees) called for under the terms and provisions of the applicable Mortgage Loans (other than Specially Serviced Mortgage Loans or REO Properties); provided, that with respect to any Non-Serviced Mortgage Loan, such payments shall be collected from the related Non-Serviced Mortgage Loan Master Servicer or Non-Serviced Mortgage Loan Special Servicer, as applicable.
(e) The Master Servicer shall segregate and hold all funds collected and received pursuant to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) constituting Escrow Amounts separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Amounts shall be deposited within one (1) Business Day after receipt. Each Escrow Account shall be an Eligible Account, to the extent permitted under the related Mortgage Loan documents. The Master Servicer shall also deposit into each Escrow Account any amounts representing losses on Eligible Investments pursuant to the immediately succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow Account shall be maintained in accordance with the requirements of the related Mortgage Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow Account may be made only for the following purposes (in no order of priority):
(i) to effect timely payments of items constituting Escrow Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Collection Account (or any sub-account thereof) to reimburse the Master Servicer for any Advance (or the Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from amounts received with respect to the related Mortgage Loan which represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the related Mortgagor under applicable law or by the terms of the related Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in an Escrow Account that were not required to be deposited therein or to refund amounts to the Mortgagors determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master Servicer may direct any depository institution or trust company in which the Escrow Accounts are maintained
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to invest the funds held therein in one or more Eligible Investments; provided, that such funds shall be either (x) immediately available or (y) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the Escrow Account was established; (ii) the Master Servicer shall be entitled to all income and gain realized from any such investment of funds as additional servicing compensation; and (iii) the Master Servicer shall deposit from its own funds in the applicable Escrow Account the amount of any loss incurred in respect of any such investment of funds immediately upon the realization of such loss; provided, that unless otherwise set forth in the related Mortgage Loan documents, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person or an Affiliate thereof that made the relevant investment. The Master Servicer shall not direct the investment of funds held in any Escrow Account and retain the income and gain realized therefrom if the terms of the related Mortgage Loan or applicable law permit the Mortgagor to be entitled to the income and gain realized from the investment of funds deposited therein, and the Master Servicer shall not be required to invest amounts on deposit in Escrow Accounts in Eligible Investments or deposit such amounts in Eligible Accounts to the extent that the Master Servicer is required by either law or under the terms of any related Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the deposit or investment of) such amounts in another type of investments or accounts. If the Master Servicer is not entitled to direct the investment of such funds, then: (1) the Master Servicer shall direct the depository institution or trust company in which such Escrow Accounts are maintained to invest the funds held therein in accordance with the Mortgagor’s written investment instructions, if the terms of the related Mortgage Loan or applicable law require the Master Servicer to invest such funds in accordance with the Mortgagor’s directions; and (2) in the absence of appropriate written instructions from the Mortgagor, the Master Servicer shall have no obligation to direct the investment of such funds; provided, that if such funds shall be either (y) immediately available or (z) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the Escrow Account was established, then the Master Servicer shall have no liability for any loss in investments of such funds that are invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special Servicer to the Trustee, the Certificate Administrator and the Custodian and to each other under this Agreement is intended by the parties to be that of an independent contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan), if required by the terms of the related Mortgage Loan documents, any Lock-Box Agreement or similar agreement, the Master Servicer shall establish and maintain, in accordance with the Servicing Standard, one or more lock-box, cash management or similar accounts (“Lock-Box Accounts”) to be held outside the Trust and maintained by the Master Servicer in accordance with the terms of the related Mortgage. No Lock-Box Account is required to be an Eligible Account, unless otherwise required pursuant to the related Mortgage Loan documents. The Master Servicer shall apply the funds deposited in such accounts in accordance with terms
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of the related Mortgage Loan documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer shall process all defeasances of Mortgage Loans (other than any Non-Serviced Mortgage Loan), Serviced B Notes and Serviced Companion Loans in accordance with the terms of the related Mortgage Loan documents, and shall be entitled to any defeasance fees paid relating thereto (provided, that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that the Special Servicer is entitled to under this Agreement). The Master Servicer shall not permit defeasance (or partial defeasance if permitted under the related Mortgage Loan documents) of any Mortgage Loan on or before the second (2nd) anniversary of the Closing Date, or in the case of a Serviced Companion Loan the second (2nd) anniversary of the startup date of any REMIC holding such Serviced Companion Loan, unless such defeasance will not result in an Adverse REMIC Event (or in the case of a Serviced Companion Loan an adverse REMIC event for any REMIC holding such Serviced Companion Loan) and the Master Servicer has received an Opinion of Counsel to such effect (which Opinion of Counsel, to the extent not inconsistent with the related Mortgage Loan documents, shall be paid for by the related Mortgagor) and all items in the following sentence have been satisfied. Subsequent to the second (2nd) anniversary of the Closing Date, or in the case of a Serviced Companion Loan the second (2nd) anniversary of the startup date of any REMIC holding such Serviced Companion Loan, the Master Servicer, in connection with the defeasance of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced B Note or a Serviced Companion Loan shall (to the extent it is not inconsistent with the Servicing Standard): (i) require that the defeasance collateral consists of Government Securities that are acceptable as defeasance collateral under the current guidelines of the Rating Agencies, (ii) determine that the defeasance will not result in an Adverse REMIC Event (or in the case of a Serviced Companion Loan an adverse REMIC event for any REMIC holding such Serviced Companion Loan), (iii) either (A) require that the related Mortgagor designate a Single-Purpose Entity to own the Defeasance Collateral (subject to customary qualifications) or (B) establish a Single-Purpose Entity to hold all Defeasance Collateral relating to the Defeasance Loans, (iv) request and receive from the Mortgagor (A) an opinion of counsel that the Trustee will have a perfected, first priority security interest in such Defeasance Collateral and (B) written confirmation from a firm of independent accountants stating that payments made on such Defeasance Collateral in accordance with the terms thereof will be sufficient to pay the subject Mortgage Loan, and if applicable the related Serviced B Note and/or Serviced Companion Loan, (or the defeased portion thereof in connection with a partial defeasance) in full on or before its Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to timely pay each subsequent Scheduled Payment and (v) provide a Rating Agency Communication to each Rating Agency. Any customary and reasonable out-of-pocket expense incurred by the Master Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other pertinent document, if so allowed by the terms of such documents. Notwithstanding anything herein or in the related Mortgage Loan documents to the contrary (but subject to the Special Servicer’s right to process any request with respect to a Major Decision or Special Servicer Decision or to consent to the Master Servicer processing such request pursuant to Section 8.7(f)), the Master Servicer may accept as Defeasance Collateral Government Securities that are rated below “AAA” (or its equivalent) by any NRSRO notwithstanding any requirements in the related Mortgage Loan documents that require such Defeasance Collateral to
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be rated “AAA” (or its equivalent) by the applicable NRSROs; provided, that, in any case, the Master Servicer has received an Opinion of Counsel that acceptance of such Defeasance Collateral will not cause an Adverse REMIC Event (which Opinion of Counsel, to the extent not inconsistent with the related Mortgage Loan documents, shall be paid for by the related Mortgagor).
The parties hereto acknowledge that if the payments described in paragraph 32 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the obligation of a Mortgagor to pay the reasonable costs and expenses associated with a defeasance of the related Mortgage Loan are insufficient to reimburse the Trust, including, but not limited to, rating agency fees, then the sole obligation of the related Seller shall be to pay an amount equal to such insufficiency or expense to the extent the related Mortgagor is not required to pay such amount. If any amount is due under the preceding sentence for any Joint Mortgage Loan, then each of the applicable Sellers shall be required to pay only such party’s pro rate share. Promptly upon receipt of notice of such insufficiency or unpaid expense, the Master Servicer shall request the related Seller to make such payment by deposit to the Collection Account.
In the case of a Specially Serviced Mortgage Loan, the Master Servicer shall process any defeasance of such Specially Serviced Mortgage Loan in accordance with the original terms of the respective Mortgage Loan documents, subject to the Special Servicer’s right to service Specially Serviced Mortgage Loans, manage any related REO Properties and process Major Decisions and Special Servicer Decisions pursuant to Section 9.1(a) herein.
Notwithstanding the foregoing, with respect to the Mortgage Loans originated or acquired by MSMCH and subject to defeasance, MSMCH has retained the right to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral (“MSMCH Seller Defeasance Rights and Obligations”). If the Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan originated or acquired by MSMCH and subject to defeasance, the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to MSMCH or its assignee. Until such time as MSMCH provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with MSMCH Defeasance Rights and Obligations shall be delivered to MSMCH pursuant to the notice provisions of this Agreement.
Notwithstanding the foregoing, BANA has retained the right of the lender under the Mortgage Loan documents with respect to the BANA Loans to receive a percentage of the economic benefit associated with the ownership of the successor borrower, and the right to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral, if there is a defeasance of a BANA Loan (“BANA Lender Successor Borrower Right”). If the Master Servicer receives notice of a defeasance request with respect to a BANA Loan subject to defeasance, the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to BANA or its assignee. Until such time as BANA provides written notice to the contrary, notice of a defeasance of a BANA Loan with a BANA Lender Successor Borrower Right shall be delivered to BANA pursuant to the notice provisions of this Agreement. In addition, to the extent that the Master Servicer receives any amount in respect of a BANA Lender Successor Borrower Right that is required to be remitted to BANA pursuant to the related defeasance documents, the
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Master Servicer shall remit such amounts to BANA pursuant to the terms of the defeasance documents.
Notwithstanding the foregoing, CIBC has retained the right to establish or designate or approve the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral (“CIBC Lender Successor Borrower Right”) for all CIBC Loans subject to defeasance other than the Mortgage Loans secured by the Mortgaged Properties identified as “Town Center at Celebration”, “Parkview Townhomes” and “103 Market Place Drive” on the Mortgage Loan Schedule. If the Master Servicer receives notice of a defeasance request with respect to a CIBC Loan subject to defeasance (other than the Mortgage Loans secured by the Mortgaged Properties identified as “Town Center at Celebration”, “Parkview Townhomes” and “103 Market Place Drive” on the Mortgage Loan Schedule), the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to CIBC or its assignee. Until such time as CIBC provides written notice to the contrary, notice of a defeasance of a CIBC Loan with a CIBC Lender Successor Borrower Right shall be delivered to CIBC pursuant to the notice provisions of this Agreement.
Notwithstanding the foregoing, SMF III has retained the right to establish or designate the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral (“SMF III Lender Successor Borrower Right”) for all SMF III Loans subject to defeasance. If the Master Servicer receives notice of a defeasance request with respect to a SMF III Loan subject to defeasance, the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to SMF III or its assignee. Until such time as SMF III provides written notice to the contrary, notice of a defeasance of a SMF III Loan with a SMF III Lender Successor Borrower Right shall be delivered to SMF III pursuant to the notice provisions of this Agreement.
(i) The Master Servicer shall, as to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) set forth on Schedule V hereto, each of which is secured by the interest of the related Mortgagor under a ground lease, Space Lease or air rights lease, promptly (and, in any event, within forty-five (45) days) after the Closing Date (or, if later, ten (10) Business Days after its receipt of a copy of the related ground lease, Space Lease or air rights lease) notify the related lessor of the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and inform such lessor that any notices of default under the related ground lease, Space Lease or air rights lease should thereafter be forwarded to the Master Servicer. The Master Servicer shall promptly forward any such notices to the Special Servicer.
(j) Subject to the rights of the Controlling Class Representative set forth in this Agreement, (A) the Master Servicer shall be entitled (other than with respect to Non-Serviced Mortgage Loans), during any period when (i) the A Note and Serviced B Note under any A/B Whole Loan, (ii) the Serviced Pari Passu Mortgage Loan and Serviced Companion Loan under any Loan Pair, and (iii) any Mortgage Loan with any related mezzanine loan, does not constitute a Specially Serviced Mortgage Loan, and (B) the Special Servicer shall be entitled (other than with respect to Non-Serviced Mortgage Loans), during any period when the notes or other obligations listed in clauses (A)(i) through (iii) above constitute Specially Serviced Mortgage Loans, to exercise the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement to the “Controlling Note Holder”, “Note A
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Holder”, the “Note A Controlling Holder”, the “Senior Lender”, the “Senior Loan Controlling Holder”, or such other similar term as may be set forth in any such Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, and/or the “Servicer” referred to therein. For the avoidance of doubt, the parties acknowledge that neither the Master Servicer nor the Special Servicer shall be entitled or required to exercise the rights and powers granted to any “Note B Holder” or such other analogous term as may be set forth in any such Intercreditor Agreement.
(k) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s obligations and responsibilities hereunder and the Master Servicer’s authority with respect to any Non-Serviced Mortgage Loan are limited by and subject to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer with respect thereto under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall use reasonable efforts consistent with the Servicing Standard to monitor the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and shall use reasonable efforts consistent with the Servicing Standard to enforce the rights of the Trustee (as holder of the Non-Serviced Mortgage Loans) under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement. The Master Servicer shall take such actions as it shall deem reasonably necessary to facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer including, but not limited to, delivering appropriate Requests for Release to the Custodian in order to deliver any portion of the related Mortgage File to the applicable Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 8.4 Sub-Servicing.
(a) The Master Servicer shall supervise, administer, monitor, enforce and oversee the servicing of the applicable Mortgage Loans by any sub-servicer appointed by it. Other than with respect to the agreements with any other sub-servicer (including the Seller Sub-Servicer) under agreements that are in effect on the Closing Date (each a “Surviving Sub-Servicer”), the terms of any arrangement or agreement between the Master Servicer and a sub-servicer shall provide that such agreement or arrangement may be terminated, without cause and without the payment of any termination fees, by the Trustee if such Master Servicer is terminated in accordance with this Agreement. In addition, none of the Trustee, the Certificate Administrator, the Custodian, the Certificateholders, the holder of any Serviced Companion Loan or the holder of any Serviced B Note shall have any direct obligation or liability (including, without limitation, indemnification obligations) with respect to any sub-servicer. The Master Servicer shall be solely responsible for the payment of compensation to any sub-servicer appointed by it. The Master Servicer shall pay the costs of enforcement against any of its sub-servicers at its own expense, but shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement only to the extent that such recovery exceeds all amounts due in
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respect of the related Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorney’s fees against the party against whom such enforcement is directed. Notwithstanding the provisions of any primary servicing agreement or sub-servicing agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer or a sub-servicer, or reference to actions taken through a sub-servicer or otherwise, the Master Servicer shall remain obligated and liable to the Trust, the Trustee, the Certificate Administrator, the Custodian, the Special Servicer and the Certificateholders for the servicing and administering of the applicable Mortgage Loans and the Serviced Companion Loans in accordance with (and subject to the limitations contained within) the provisions of this Agreement without diminution of such obligation or liability by virtue of indemnification from a sub-servicer and to the same extent and under the same terms and conditions as if the Master Servicer alone were servicing and administering such Mortgage Loans and Serviced Companion Loans, as applicable. No sub-servicer shall be permitted under any sub-servicing agreement to make material servicing decisions, such as loan modifications or determinations as to the manner or timing of enforcing remedies under the Mortgage Loan documents, without the consent of the Master Servicer, whose consent will be subject to the consent of the Special Servicer to the extent provided in accordance with the terms of this Agreement.
(b) Subject to the limitations of subsection (a), the Master Servicer may appoint one or more sub-servicers to perform all or any portion of its duties hereunder for the benefit of the Trust, the Trustee and the Certificateholders provided that, after the Closing Date, if and for so long as the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, the Master Servicer shall not enter into a sub-servicing agreement with any Prohibited Party.
(c) Notwithstanding anything herein to the contrary, any sub-servicing agreement with a Sub-Servicer shall provide that (i) the failure of such Sub-Servicer to comply with any of the requirements of Article XIII of this Agreement, (ii) if and for so long as the Trust or, with respect to any Serviced Companion Loan that is deposited into a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, such other trust, is subject to the reporting requirements of the Exchange Act, the failure of such Sub-Servicer to comply with any requirements to deliver any items required by Items 1122 and 1123 of Regulation AB under any other pooling and servicing agreement relating to any commercial mortgage loan securitization or (iii) the status of such Sub-Servicer as a Prohibited Party at any time during which the Trust is subject to the reporting requirements of the Exchange Act, shall each constitute an event of default by such Sub-Servicer under such sub-servicing agreement upon the occurrence of which any of the Master Servicer (with respect to any Sub-Servicer engaged by it), the Special Servicer (with respect to any Sub-Servicer engaged by it) or the Depositor shall have the right to immediately terminate such Sub-Servicer and that such termination shall be deemed for cause.
Section 8.5 Master Servicer May Own Certificates. The Master Servicer and any agent of the Master Servicer in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Master Servicer or such agent. Any such interest of the Master Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Master Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether
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such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other. Subject to the limitations set forth below, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain for each Mortgage Loan (other than any REO Mortgage Loans and any Non-Serviced Mortgage Loans) (A) a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage Loan documents and the related Mortgage so require or so permit the holder of such Mortgage Loan to require, contains no exclusion for damages due to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002) and which does not provide for reduction due to depreciation in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or (ii) the outstanding Unpaid Principal Balance of such Mortgage Loan and any related Serviced B Note and/or Serviced Companion Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (B) any other insurance coverage for such Mortgage Loan which the related Mortgagor is required to maintain under the related Mortgage. If the related Mortgagor does not maintain the insurance set forth in clauses (A) and (B) above, then the Master Servicer shall cause such insurance to be maintained with a Qualified Insurer, provided the Master Servicer shall not be required to maintain earthquake insurance on any Mortgaged Property unless (x) such insurance was required at origination and is available at commercially reasonable rates and (y) the Trustee has an insurable interest. The Master Servicer shall be deemed to have satisfied its obligations with respect to clause (A) above if the Mortgagor maintains, or the Master Servicer shall have otherwise caused to be obtained, a Standard Hazard Insurance Policy that is in compliance with the related Mortgage Loan documents, and, if required by such Mortgage Loan documents or if such Mortgage Loan documents permit the holder of such Mortgage Loan to require, the Mortgagor pays, or the Master Servicer shall have otherwise caused to be paid, the premium required by the related insurance provider that is necessary to avoid an exclusion in such policy against “acts of terrorism” as defined by the Terrorism Risk Insurance Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect to any Mortgaged Property that is not an REO Property shall contain, or have an accompanying endorsement that contains, a standard mortgagee clause. If the improvements on the Mortgaged Property are located in a designated special flood hazard area by the Federal Emergency Management Agency in the Federal Register, as amended from time to time (to the extent permitted under the related Mortgage Loan documents or as required by law), the Master Servicer (with respect to any Mortgaged Property that is not an REO Property) shall, consistent with the Servicing Standard, cause flood insurance to be maintained. Such flood insurance shall be in an amount equal to the lesser of (i) the Unpaid Principal Balance of the related Mortgage Loan, Loan Pair or A/B Whole Loan, as applicable, or (ii) the maximum amount of such insurance available for the related Mortgaged Property under the national flood insurance program, if the area in which the improvements on the Mortgaged Property are located is participating in such program. Any amounts collected by the Master Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or property thus acquired or amounts released to the Mortgagor in accordance with the terms of the applicable Mortgage Loan documents) shall be deposited in the Collection Account.
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Any cost (such as insurance premiums and insurance broker fees but not internal costs and expenses of obtaining such insurance) incurred by the Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall not, for the purpose of calculating monthly distributions to the Certificateholders or remittances to the Certificate Administrator for their benefit, be added to the principal balance of the related Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan documents permit such cost to be added to the outstanding principal balance thereof. Such costs shall be paid as a Servicing Advance by the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to enforce such insurance requirements. Furthermore, the Master Servicer shall not be required in any event to cause the Mortgagor to maintain or itself obtain insurance coverage (i) beyond what is available on commercially reasonable terms at a cost customarily acceptable (in each case, as determined by the Master Servicer, which shall be entitled to rely, at its sole expense, on insurance consultants in making such determination, consistent with the Servicing Standard) and consistent with the Servicing Standard or (ii) in the case of the Master Servicer obtaining such insurance, if the Trustee does not have an insurable interest; provided that the Master Servicer shall be obligated to cause the Mortgagor to maintain or itself obtain insurance against property damage resulting from terrorism or similar acts if the terms of the related Mortgage Loan documents and the related Mortgage so require unless the Special Servicer determines, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that the failure to maintain such insurance would constitute an Acceptable Insurance Default (based on information and documents provided by the Master Servicer as reasonably requested by the Special Servicer). The Master Servicer shall notify the holder of the related Serviced Companion Loan of any determination that it makes pursuant to the proviso to the prior sentence with respect to any Serviced Pari Passu Mortgage Loan.
The Master Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 8.6 either (i) if the Master Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all of the applicable Mortgage Loans (other than a Non-Serviced Mortgage Loan), any Serviced Companion Loan and any Serviced B Note serviced by it, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is issued by a Qualified Insurer or (ii) if the Master Servicer, for so long as its long-term rating is not less than “A (low)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two other NRSROs (which may include S&P, Fitch and/or Moody’s) (or an A.M. Best equivalent)), not less than “A3” as rated by Moody’s and not less than “A-” as rated by Fitch), self-insures for its obligations as set forth in the first paragraph of this Section 8.6. If the Master Servicer shall cause any Mortgage Loan to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such Mortgage Loan (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Loan is then covered thereby), if not borne by the related Mortgagor, shall be paid by the Master Servicer as a Servicing Advance. If such policy contains a deductible clause, the Master Servicer shall, if there shall not have been maintained on the related Mortgaged Property a policy complying with this Section 8.6 and there
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shall have been a loss that would have been covered by such policy, deposit in the Collection Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan documents or (ii) if there is no deductible limitation required under such Mortgage Loan documents, the deductible amount with respect to insurance policies generally available on properties similar to the related Mortgaged Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount. In connection with its activities as administrator and servicer of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note, the Master Servicer agrees to present, on its behalf and on behalf of the Trustee and the holders of any Serviced Companion Loan or any Serviced B Note, claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan (other than any Non-Serviced Mortgage Loan), the Master Servicer shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of taxes, assessments and other similar items that are or may become a lien on the related Mortgaged Property and the status of insurance premiums payable with respect thereto. From time to time, the Master Servicer (other than with respect to any REO Mortgage Loan, REO Serviced B Note or Non-Serviced Mortgage Loan) shall (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) except in the case of Mortgage Loans under which Escrow Amounts are not held by the Master Servicer, effect payment of all such bills, taxes and other assessments with respect to such Mortgaged Properties prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Amounts as allowed under the terms of the related Mortgage Loan documents. If a Mortgagor fails to make any such payment on a timely basis or collections from the Mortgagor are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer in accordance with the Servicing Standard shall use its reasonable efforts to pay as a Servicing Advance the amount necessary to effect the payment of any such item prior to such penalty or termination date, subject to Section 4.4 hereof. No costs incurred by the Master Servicer or the Trustee as the case may be, in effecting the payment of taxes and assessments on the Mortgaged Properties and related insurance premiums and ground rents shall, for the purpose of calculating distributions to Certificateholders, be added to the principal balance of the Mortgage Loans, notwithstanding that the terms of the related Mortgage Loan documents permit such costs to be added to the outstanding principal balances thereof.
Section 8.7 Enforcement of Due-on-Sale Clauses; Assumption Agreements; Due-on-Encumbrance Clause.
(a) If the Master Servicer receives a request from a Mortgagor (or other obligor) pursuant to the provisions of any Mortgage Loan, Serviced Companion Loan or Serviced B Note (other than a Specially Serviced Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the related Mortgage Loan documents, the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan, Serviced Companion Loan or Serviced B Note by, another Person, then the Master Servicer shall obtain relevant information for purposes of evaluating such request. For the purpose of the foregoing sentence, the term “expressly permits” shall include outright permission to assign, permission to assign upon satisfaction of certain conditions or prohibition
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against assignment except upon the satisfaction of stated conditions, in each case without lender discretion. In addition, if any Mortgage Loan, Serviced Companion Loan or Serviced B Note, in each case that is not a Specially Serviced Mortgage Loan, or a Non-Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms (i) provides that it shall (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or ownership interest in the related Mortgagor, or (ii) provides that it may not be assumed, or ownership interests in the related Mortgagor may not be transferred, without the consent of the related mortgagee in connection with any such sale or other transfer, then, upon the request of the related Mortgagor or other appropriate party or a potential or actual breach of such “due-on-sale” clause, the Master Servicer shall obtain relevant information for purposes of evaluating such request and in all cases, shall send such information to the Special Servicer for determination of the satisfaction of such conditions in accordance with the terms of this Section 8.7(a).
In connection with the foregoing, and subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Master Servicer shall promptly deliver any such request that involves a Major Decision or Special Servicer Decision to the Special Servicer (and the holder of any related Serviced B Note and, if required by the related Intercreditor Agreement, the holder of any related Serviced Companion Loan), together with any information in the possession of the Master Servicer that is reasonably necessary for the Special Servicer to make a decision with respect to such Mortgagor’s request. Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall, in accordance with the Servicing Standard (and, with respect to any such request that constitutes a Major Decision or Special Servicer Decision, while directly processing such request), grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the related Mortgage Loan, Serviced Companion Loan or Serviced B Note and this Agreement, or to any such waiver of a due-on-sale clause. With respect to any such request processed by the Master Servicer in accordance with Section 8.7(f), (x) the Master Servicer shall obtain the consent of the Special Servicer and such consent of the Special Servicer shall be deemed given if not denied within the period contemplated by Section 10.3, (y) the Master Servicer shall act accordingly and shall not permit any such assignment or assumption or waive any such due-on-sale clause unless (i) it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as set forth in the preceding clause (x), and (ii) with respect to any A/B Whole Loan or Loan Pair, the Master Servicer has obtained the approval of the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, to the extent provided for in the related Intercreditor Agreement, and in accordance with any procedures therefor set forth in Section 10.13 and (z) if the Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the Master Servicer with a written statement and a verbal explanation, as necessary, as to its reasoning and analysis.
The Special Servicer (upon deciding to grant consent (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed assignment and assumption) or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision, the Master Servicer (upon consent or deemed consent by the Special Servicer (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed assignment and assumption) shall process such request of the related Mortgagor (or other obligor) and shall be authorized to enter into an assignment and assumption or
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substitution agreement with the Person to whom the related Mortgaged Property has been or is proposed to be conveyed, and/or release the original Mortgagor from liability under the related Mortgage Loan, Serviced Companion Loan or Serviced B Note and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided that neither the Special Servicer nor the Master Servicer shall enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or an Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. To the extent permitted by applicable law, neither the Special Servicer nor the Master Servicer shall enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor (or other obligor) is in conformity to the terms of the related Mortgage Loan and, if applicable, Serviced B Note or Serviced Companion Loan documents. The Master Servicer, in making its recommendation to the Special Servicer and the Special Servicer, in consenting to the action of the Master Servicer, shall evaluate such conformity in accordance with the Servicing Standard.
Neither the Master Servicer nor the Special Servicer shall have any liability, and each of them shall be indemnified by the Trust for any liability to the Mortgagor or the proposed assignee, for any delay in responding to requests for assumption, if the same shall occur as a result of the failure of any Rating Agency to respond to such request in a reasonable period of time.
(b) Prior to consenting to any assignment and assumption or waiver of a “due-on-sale” clause pursuant to Section 8.7(a) with respect to any Mortgage Loan, Serviced Companion Loan or B Note, the Special Servicer or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision, the Master Servicer, as applicable, shall provide a Rating Agency Communication to the 17g-5 Information Provider with respect to any securities that are rated by any such NRSRO and evidence direct beneficial interests in a Serviced Companion Loan or Serviced B Note regarding such assignment and assumption or waiver if (A) the Unpaid Principal Balance of the related Mortgage Loan at such time equals or exceeds 5% of the Aggregate Certificate Balance of the Principal Balance Certificates or exceeds $35,000,000 or (B) the related Mortgage Loan is one of the then current ten (10) largest Mortgage Loans or groups of Crossed Mortgage Loans (by Unpaid Principal Balance) in the Trust Fund; provided, no Rating Agency Communication will be required under such circumstances if the Unpaid Principal Balance of the related Mortgage Loan is less than $5,000,000. In connection with each such Rating Agency Communication, the Special Servicer or the Master Servicer, as applicable, shall prepare and, subject to Section 5.7, deliver to the Rating Agencies a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation, and shall promptly forward copies of the assignment and assumption documents relating to the applicable Mortgage Loan, Serviced Companion Loan or Serviced B Note to the Special Servicer (if the Master Servicer is processing the matter), the Master Servicer (if the Special Servicer is processing the matter), the Certificate Administrator, the Custodian, the 17g-5 Information Provider and the Trustee, and the Special Servicer or the Master Servicer, as applicable, shall promptly thereafter, subject to Section 5.7, forward such documents to the Rating Agencies.
(c) The Special Servicer and the Master Servicer, in each case, for the benefit of the Certificateholders, the holder of any related Serviced Companion Loan and the holder of
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any related Serviced B Note, shall execute any necessary instruments (pursuant to subsection (a)) for such assignment and assumption agreements. Upon the closing of the transactions contemplated by such documents, the Special Servicer or the Master Servicer, as applicable, shall cause the originals of the assignment and assumption agreement, the release (if any), or the modification or supplement to the related Mortgage Loan, Serviced Companion Loan or Serviced B Note to be delivered to the Custodian (with a copy thereof to the Master Servicer (if delivered by the Special Servicer) or the Special Servicer (if delivered by the Master Servicer)) except to the extent such documents have been submitted to the recording office, in which event the Special Servicer or the Master Servicer, as applicable, shall promptly deliver copies of such documents to the Custodian, the Master Servicer (if the Special Servicer is processing the matter) and the Special Servicer (if the Master Servicer is processing the matter).
(d) If any Mortgage Loan, Serviced Companion Loan or Serviced B Note (other than a Specially Serviced Mortgage Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:
(i) provides that such Mortgage Loan, Serviced Companion Loan or Serviced B Note, as applicable, shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor,
then, if the Master Servicer receives a request for a waiver of, or gains actual knowledge of any potential or actual breach of, such “due-on-encumbrance” clause, the Master Servicer shall obtain relevant information for purposes of evaluating such request. The Master Servicer shall then, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, promptly deliver any such request to the Special Servicer, together with any information in the possession of the Master Servicer that is reasonably necessary for the Special Servicer to make a decision with respect to such Mortgagor’s request. Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall, in accordance with the Servicing Standard (and, with respect to any such request that constitutes a Major Decision or Special Servicer Decision, while directly processing such request), grant or withhold consent to any such request for waiver of such due-on-encumbrance clause. With respect to any such request processed by the Master Servicer in accordance with Section 8.7(f), (x) the Master Servicer shall obtain the consent of the Special Servicer and such consent of the Special Servicer shall be deemed given if not denied within the time period contemplated by Section 10.3, (y) the Master Servicer shall act accordingly and shall not permit any such waiver unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as set forth in this sentence and (z) if the Special Servicer withholds consent pursuant to the foregoing provisions, it shall provide the Master Servicer with a written statement and a verbal explanation, as necessary, as to its reasoning and analysis.
The Special Servicer (upon deciding to grant consent (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed waiver) or the
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Master Servicer (upon consent or deemed consent by the Special Servicer (subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement) to any proposed waiver) shall process such request of the related Mortgagor subject to the other requirements set forth above.
(e) Prior to consenting to any waiver of a “due-on-encumbrance” clause pursuant to Section 8.7(d) with respect to any Mortgage Loan, Serviced Companion Loan or Serviced B Note, the Special Servicer or, with respect to any request that does not constitute a Major Decision or Special Servicer Decision, the Master Servicer, as applicable, shall provide a Rating Agency Communication regarding such waiver to each Rating Agency, the 17g-5 Information Provider and each Other NRSRO with respect to any securities that are rated by any such NRSRO and evidence direct beneficial interests in a Serviced Companion Loan or Serviced B Note.
Notwithstanding anything to the contrary contained in this Section 8.7 that requires the consent of the Master Servicer or the Special Servicer, as applicable, any such consent with respect to any A/B Whole Loan or any Loan Pair shall be obtained in accordance with the related Intercreditor Agreement and within the time periods specified therein.
(f) With respect to any non-Specially Serviced Mortgage Loan (other than Non-Serviced Mortgage Loans), the Master Servicer shall forward any request for consent to an assignment or assumption or for a waiver of a “due-on-sale” or “due-on-encumbrance” clause described above that, in each case, involves a Major Decision or Special Servicer Decision to the Special Servicer. Unless the Master Servicer and Special Servicer mutually agree that the Master Servicer shall process such request, the Special Servicer shall process such request. If such request does not involve a Major Decision or Special Servicer Decision, the Master Servicer shall process such request.
(g) Notwithstanding anything in this Agreement to the contrary, to the extent that the Master Servicer does not process a Major Decision or Special Servicer Decision, the Master Servicer shall have no duty to deliver to the Special Servicer any analysis or recommendations in connection with any such action but shall be required to provide all available information that is reasonably necessary for the Special Servicer to make a decision with respect to the applicable Major Decision or Special Servicer Decision.
Section 8.8 Custodian to Cooperate; Release of Trust Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, the complete defeasance of a Mortgage Loan, satisfaction or discharge in full of any Specially Serviced Mortgage Loan, the purchase of an A Note by the holder of a Serviced B Note pursuant to the related Intercreditor Agreement, or the receipt by the Master Servicer of a notification that payment in full (or such payment, if any, in connection with the satisfaction and discharge in full of any Specially Serviced Mortgage Loan) will be escrowed in a manner customary for such purposes, and upon notification by the Master Servicer in the form of a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the Collection Account have been or will be so deposited) of a Servicing Officer and a request for release of the Trust Mortgage File
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in the form of Exhibit C hereto delivered to the Custodian (on the Trustee’s behalf), the Custodian (on the Trustee’s behalf) shall promptly release the related Trust Mortgage File to the Master Servicer, and the Custodian (on the Trustee’s behalf) shall deliver to the Master Servicer the deed of reconveyance or release, satisfaction or assignment of mortgage or such instrument releasing the lien of the Mortgage, as directed by the Master Servicer together with the Mortgage Note (or Mortgage Notes) with written evidence of cancellation thereon. The provisions of the immediately preceding sentence shall not, in any manner, limit or impair the right of the Master Servicer to execute and deliver, on behalf of the Trustee, the Certificateholders, the holder of any Serviced Companion Loan, the holder of any Serviced B Note or any of them, any and all instruments of satisfaction, cancellation or assignment without recourse, representation or warranty, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, any Serviced Companion Loan or any Serviced B Note, and with respect to the Mortgaged Properties held for the benefit of the Certificateholders, the holder of any Serviced Companion Loan and the holder of any Serviced B Note. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Distribution Account but shall be paid by the Master Servicer except to the extent that such expenses are paid by the related Mortgagor in a manner consistent with the terms of the related Mortgage and applicable law. From time to time and as shall be appropriate for the servicing of any Mortgage Loan, including for such purpose, collection under any policy of flood insurance, any Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes of effecting a partial or total release of any Mortgaged Property from the lien of the Mortgage or the making of any corrections to the Mortgage Note (or Mortgage Notes) or the Mortgage or any of the other documents included in the Trust Mortgage File, the Custodian shall, upon request of the Master Servicer and the delivery to the Custodian of a Request for Release signed by a Servicing Officer, in the form of Exhibit C hereto, release the Trust Mortgage File to the Master Servicer.
(b) With respect to any Non-Serviced Loan Combination or the TKG 3 Retail Portfolio Loan Pair (on and after the TKG 3 Retail Portfolio Companion Loan Securitization Date), if pursuant to the related Intercreditor Agreement and the Other Companion Loan Pooling and Servicing Agreement, and as appropriate for enforcing the terms of such Non-Serviced Loan Combination or the TKG 3 Retail Portfolio Loan Pair, as applicable, the related Other Master Servicer requests delivery to it of the original Mortgage Note, then the Custodian shall release or cause the release of such original Mortgage Note to the related Other Master Servicer or its designee and shall retain a copy thereof, subject to the execution of an agreement by such Other Master Servicer to safeguard such original Mortgage Note and to return such original Mortgage Note promptly when no longer required by such Other Master Servicer for such purpose.
(c) With respect to any Loan Pair, if pursuant to the related Intercreditor Agreement, and as appropriate for enforcing the terms of such Loan Pair, the Master Servicer requests from the related Other Custodian delivery to it of the original mortgage note evidencing the related Serviced Companion Loan, the Master Servicer shall agree to safeguard such original mortgage note and to return such original mortgage note promptly when no longer required by it for such purpose.
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for the Benefit of the Certificateholders. Notwithstanding any other provisions of this Agreement, the Master Servicer shall transmit to
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the Trustee, the Certificate Administrator and the Custodian, to the extent required by this Agreement, all documents and instruments coming into the possession of the Master Servicer from time to time and shall account fully to the Trustee, the Certificate Administrator and the Custodian for any funds received or otherwise collected thereby, including Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files and funds collected or held by, or under the control of, the Master Servicer in respect of any Mortgage Loans (or any Serviced B Note or Serviced Companion Loan), whether from the collection of principal and interest payments or from Liquidation Proceeds or Insurance Proceeds, including any funds on deposit in the Collection Account (or any Custodial Account), shall be held by the Master Servicer for and on behalf of the Trustee and the Certificateholders (or the holder of any Serviced B Note or Serviced Companion Loan, as applicable) and shall be and remain the sole and exclusive property of the Trust, subject to the applicable provisions of this Agreement. The Master Servicer agrees that it shall not create, incur or subject any Servicer Mortgage Files or Trust Mortgage File or any funds that are deposited in the Collection Account or any Escrow Account, or any funds that otherwise are or may become due or payable to the Trustee, the Certificate Administrator or the Custodian, to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, or assert by legal action or otherwise any claim or right of setoff against any Servicer Mortgage Files or Trust Mortgage File or any funds collected on, or in connection with, a Mortgage Loan, except, however, that the Master Servicer shall be entitled to receive from any such funds any amounts that are properly due and payable to the Master Servicer under this Agreement.
Section 8.10 Servicing Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall be entitled to the Master Servicing Fee, which shall be payable by the Trust from amounts held in the Collection Account (and from the related Custodial Account to the extent related solely to any Serviced B Note or Serviced Companion Loan) or otherwise collected from the Mortgage Loans and, if applicable, A/B Whole Loans and Loan Pairs (including a Mortgage Loan, A/B Whole Loan or Loan Pair that relates to an REO Property or is a Defeasance Loan), including any Non-Serviced Mortgage Loan, as provided in Section 5.2. The Master Servicer’s rights to the Master Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer’s responsibilities and obligations under this Agreement or as provided in the following paragraph with respect to the Excess Servicing Fee.
The Master Servicer and any successor holder of the Excess Servicing Fee Rights shall be entitled, at any time, at its own expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in either case, to any Qualified Institutional Buyer or Institutional Accredited Investor (other than a Plan); provided, that no such transfer, sale, pledge or other assignment shall be made unless (i) that transfer, sale, pledge or other assignment is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws and is otherwise made in accordance with the Securities Act and such state securities laws, (ii) the prospective transferor shall have delivered to the Depositor a certificate substantially in the form of Exhibit S-1 attached hereto, and (iii) the prospective transferee shall have delivered to the Master Servicer and the Depositor a certificate substantially in the form of Exhibit S-2 attached hereto. None of the Depositor, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor or the Certificate
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Registrar shall have any obligation to register or qualify an Excess Servicing Fee Right under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee Right without registration or qualification. The Master Servicer and each holder of an Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other assignment of such Excess Servicing Fee Right shall, and the Master Servicer hereby agrees, and each such holder of an Excess Servicing Fee Right by its acceptance of such Excess Servicing Fee Right shall be deemed to have agreed, in connection with any transfer of such Excess Servicing Fee Right effected by such Person, to indemnify the Certificateholders, the Trust, the Depositor, the Underwriters, the Initial Purchasers, the Certificate Administrator, the Custodian, the Trustee, the Master Servicer, the Certificate Registrar, the Trust Advisor and the Special Servicer against any liability that may result if such transfer is not exempt from registration and/or qualification under the Securities Act or other applicable federal and state securities laws or is not made in accordance with such federal and state laws or in accordance with the foregoing provisions of this paragraph. By its acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed to have agreed not to use or disclose such information in any manner that could result in a violation of any provision of the Securities Act or other applicable securities laws or that would require registration of such Excess Servicing Fee Right or any Certificate pursuant to the Securities Act. From time to time following any transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the Master Servicer with respect to the related Mortgage Loan, Serviced Companion Loan or any successor REO Loan with respect thereto to which the Excess Servicing Fee Right relates, shall pay, out of the Master Servicing Fee paid to the Master Servicer with respect to such Mortgage Loan, Serviced Companion Loan or any successor REO Loan, as the case may be, the related Excess Servicing Fee to the holder of such Excess Servicing Fee Right within one Business Day following the payment of such Master Servicing Fee to the Master Servicer, in each case in accordance with payment instructions provided by such holder in writing to the Master Servicer. The holder of an Excess Servicing Fee Right shall not have any rights under this Agreement except as set forth in the preceding sentences of this paragraph. None of the Certificate Administrator, the Custodian, the Certificate Registrar, the Trust Advisor, the Depositor, the Special Servicer or the Trustee shall have any obligation whatsoever regarding payment of the Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee Right.
(b) Notwithstanding anything herein to the contrary (and, in the case of any A/B Whole Loan, Loan Pair or Non-Serviced Loan Combination, subject to any provisions of the applicable Intercreditor Agreement relating to the allocation of the amounts set forth below), the Master Servicer shall be entitled to receive the following items as additional servicing compensation:
(i) 100% of defeasance fees (provided, that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that the Special Servicer is entitled to under this Agreement) actually collected during the related Collection Period;
(ii) (x) 50% of Unallocable Modification Fees actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that (A) is processed by the Special
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Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer, in each case under the other provisions of this Agreement and (y) 100% of Unallocable Modification Fees actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that the Special Servicer is not otherwise processing and that the Master Servicer is permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(iii) After application as set forth in Section 5.2(b) hereof, (x) 50% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement and (y) 100% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans and paid in connection with a consent, approval or other action that the Special Servicer is not otherwise processing and that the Master Servicer is permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(iv) 100% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that the Special Servicer is not otherwise processing and that the Master Servicer is permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement, and 50% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that (A) is processed by the Special Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(v) 100% of assumption application fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans (regardless of whether the Master Servicer or the Special Servicer processes the assumption);
(vi) 100% of Consent Fees on Non-Specially Serviced Mortgage Loans in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent, approval or other action that the Special Servicer is not otherwise processing and that the Master Servicer is permitted to grant or take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement, and 50% of Consent Fees on Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent that (A) is processed by the Special Servicer or (B) the Master Servicer is not
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permitted to grant or take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(vii) Any and all amounts collected for checks returned for insufficient funds on all Mortgage Loans and Serviced Companion Loans;
(viii) 100% of charges for beneficiary statements or demands actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans;
(ix) (a) 100% of other loan processing fees actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans to the extent that the Special Servicer is not otherwise processing the associated action and the consent of the Special Servicer is not required in connection with the associated action and (b) 50% of other loan processing fees actually paid by the Mortgagors under Non-Specially Serviced Mortgage Loans to the extent that the consent of the Special Servicer is required in connection with the associated action or such action is processed by the Special Servicer;
(x) Interest or other income earned on deposits in the Collection Account maintained by the Master Servicer, in accordance with Section 5.2 (net of any investment losses with respect to the Collection Account); and
(xi) After application as set forth in Section 5.2(b), any Excess Penalty Charges earned on Non-Specially Serviced Mortgage Loans.
(c) The Master Servicer shall also be entitled to additional servicing compensation of (i) an amount equal to the excess, if any, of the aggregate Prepayment Interest Excess collected with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, during each Collection Period over the aggregate Prepayment Interest Shortfalls incurred with respect to such Mortgage Loans during such Collection Period, and (ii) to the extent not required to be paid to any Mortgagor under applicable law, any interest or other income earned on deposits in the Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements.
(a) For each Distribution Date, (i) the Master Servicer shall deliver to the Certificate Administrator (or with respect to a Serviced Companion Loan, to the holder thereof or its servicer), no later than 2:00 p.m., New York City time, on the related Advance Report Date, the Master Servicer Remittance Report with respect to such Distribution Date including any information regarding prepayments and Balloon Payments made and any CREFC® License Fee to be paid to CREFC® and (ii) the Master Servicer shall report to the Certificate Administrator on or prior to the related Advance Report Date, the amount of the P&I Advance, if any, to be made by the Master Servicer on the related Master Servicer Remittance Date. The Special Servicer is required to provide all applicable information relating to Specially Serviced Mortgage Loans reasonably necessary in order for the Master Servicer to satisfy its duties in this Section 8.11. The Master Servicer Remittance Report shall be updated no later than 12:00 p.m., New York City time, on the Master Servicer Remittance Date to reflect any payment on a Mortgage Loan, a Serviced Companion Loan or a Serviced B Note for which the Scheduled Payment is paid on a Due Date (or within its grace period) that occurs after the end of the related
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Collection Period and the Master Servicer shall notify the Certificate Administrator on the Advance Report Date that such an updated Master Servicer Remittance Report is to be provided.
(b) Notwithstanding any provision of this Agreement to the contrary, the Master Servicer shall not have any obligation (other than to the Certificate Administrator under Section 8.11(a) and (d) hereof and to the Special Servicer) to deliver any statement, notice or report that is then made available on the Master Servicer’s or the Certificate Administrator’s internet website, if it has notified all parties entitled to delivery of such reports, by electronic mail or other notice provided in this Agreement, to the effect that such statements, notices or reports shall thereafter be made available on such website from time to time; provided, that with respect to any Loan Pair or A/B Whole Loan, the Master Servicer shall deliver to the holder of the related Serviced Companion Loan and/or Serviced B Note any statement, notice or report required to be delivered to it pursuant to the terms of the related Intercreditor Agreement.
(c) The Master Servicer shall promptly inform the Special Servicer of the name, account number, location and other necessary information concerning the Collection Account in order to permit the Special Servicer to remit amounts to the Master Servicer for deposit therein.
(d) The Master Servicer shall deliver or cause to be delivered to the Certificate Administrator and the holder of any Serviced Companion Loan (in respect of such Serviced Companion Loan) the following CREFC® Reports with respect to the Mortgage Loans (and, if applicable, the related REO Properties and, to the extent received from the applicable Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan) providing the required information as of the related Determination Date upon the following schedule: (i) a CREFC® Comparative Financial Status Report and the CREFC® Financial File not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; (ii) a CREFC® Operating Statement Analysis Report and a CREFC® NOI Adjustment Worksheet in accordance with Section 8.14 of this Agreement not later than one (1) Business Day prior to each applicable Distribution Date; (iii) a CREFC® Servicer Watch List in accordance with and subject to the terms of Section 8.11(e) not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; (iv) a CREFC® Loan Setup File (with respect to the initial Distribution Date only) not later than the Report Date in July 2015; (v) a CREFC® Loan Periodic Update File not later than each Advance Report Date commencing in July 2015 (which CREFC® Loan Periodic Update File shall be accompanied by a CREFC® Advance Recovery Report); (vi) a CREFC® Property File not later than each Report Date, commencing in July 2015; (vii) a CREFC® Delinquent Loan Status Report not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; (viii) a CREFC® Historical Loan Modification and Corrected Mortgage Loan Report not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; (ix) a CREFC® Loan Level Reserve/LOC Report not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; (x) a CREFC® REO Status Report not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015; and (xi) a CREFC® Total Loan Report not later than one (1) Business Day prior to each Distribution Date, commencing in July 2015. The information that pertains to Specially Serviced Mortgage Loans and REO Properties reflected in such reports shall be based upon the reports delivered by the Special Servicer to the Master Servicer in writing as of the related Determination Date and on a computer readable medium reasonably acceptable to the
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Master Servicer and the Special Servicer not later than the Special Servicer Remittance Date prior to the related Master Servicer Remittance Date in the form required under Section 9.32. The Master Servicer’s responsibilities under this Section 8.11(d) with respect to REO Mortgage Loans and Specially Serviced Mortgage Loans shall be subject to the satisfaction of the Special Servicer’s obligations under Section 9.32. The reporting obligations of the Master Servicer in connection with any A/B Whole Loan shall be construed to refer only to such information regarding the A/B Whole Loan (and its related Mortgaged Property) and by reference to the related A Note only, but whenever the Master Servicer remits funds to the holder of the related Serviced B Note, it shall thereupon deliver to such holder a remittance report identifying the amounts in such remittance.
(e) For each Distribution Date, the Master Servicer shall deliver to the Certificate Administrator (and solely with respect to any A/B Whole Loan, the holder of the related Serviced B Note and solely with respect to any Loan Pair, the holder of the related Serviced Companion Loan), not later than one (1) Business Day prior to each Distribution Date, a CREFC® Servicer Watch List. The Master Servicer shall list any Mortgage Loan on the CREFC® Servicer Watch List as to which any of the events specified in the CREFC® Servicer Watch List published by the CREFC® for industry use has occurred.
(f) If the Master Servicer delivers a notice of drawing to effect a drawing on any letter of credit or debt service reserve account under which the Trust has rights as the holder of any Mortgage Loan for purposes other than payment or reimbursement of amounts contemplated in and by a reserve or escrow agreement (other than after a default under an applicable Mortgage Loan or Serviced B Note), the Master Servicer shall, within five (5) Business Days following its receipt of the proceeds of such drawing, deliver notice thereof to the Special Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Certificate Administrator, which notice shall set forth (i) the Unpaid Principal Balance of such Mortgage Loan or Serviced B Note immediately before and immediately after the drawing, and (ii) a brief description of the circumstances that in the Master Servicer’s good faith and reasonable judgment entitled the Master Servicer to make such drawing.
Section 8.12 Reserved.
Section 8.13 Reserved.
Section 8.14 CREFC® Operating Statement Analysis Reports Regarding the Mortgaged Properties. The Master Servicer (in the case of Non-Specially Serviced Mortgage Loans) and the Special Servicer (in the case of Specially Serviced Mortgage Loans and REO Loans (other than any Non-Serviced Mortgage Loan that has become an REO Loan)) shall use reasonable efforts to collect from the related Mortgagors any and all operating statements, other financial statements and rent rolls required to be delivered pursuant to the related Mortgage Loan documents after the Closing Date, and the Special Servicer shall deliver copies within ten (10) Business Days of receipt of all such items collected by it to the Master Servicer. On a calendar quarterly basis within forty-five (45) days after the Master Servicer’s receipt of the related Mortgagor’s quarterly financial statements (commencing within forty-five (45) days of the receipt of related Mortgagor’s financial statements for the quarter ending September 30, 2015)
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and on an annual basis within forty-five (45) days after the Master Servicer’s receipt of the related Mortgagor’s annual financial statements (commencing with the year ending December 31, 2015), the Master Servicer (in the case of all Mortgage Loans (other than any Non-Serviced Mortgage Loan)) shall deliver or make available electronically to the Certificate Administrator and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) a CREFC® Operating Statement Analysis Report and a CREFC® Financial File for each Mortgaged Property (in electronic format), prepared, to the extent so required by the then current CREFC® investor reporting package, using the normalized quarterly and normalized year-end operating statements and rent rolls of each applicable Mortgagor, and a copy of the actual operating statements, financial statements and rent rolls provided by each Mortgagor (to the extent provided to the Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially Serviced Mortgage Loans, as provided to the Special Servicer, copies of which the Special Servicer shall forward to the Master Servicer within ten (10) Business Days of receipt thereof); provided, however, that the analysis with respect to the first calendar quarter of each year will not be required to the extent provided in the then-current applicable CREFC® guidelines. Not later than June 30th of each year (commencing in 2016), the Master Servicer (in the case of all Mortgage Loans) shall deliver or make available electronically to the Certificate Administrator and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) a CREFC® Operating Statement Analysis Report, a CREFC® Financial File and a CREFC® NOI Adjustment Worksheet for each Mortgage Loan (in electronic format), based on the most recently available year-end operating statements and most recently available rent rolls of each applicable Mortgagor (to the extent provided to the Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially Serviced Mortgage Loans, as provided to the Special Servicer, which the Special Servicer shall forward to the Master Servicer on or before May 31st of each such year), containing such information and analyses for each Mortgage Loan (other than Non-Serviced Mortgage Loans) provided for in the respective forms of a CREFC® Operating Statement Analysis Report, CREFC® Financial File and a CREFC® NOI Adjustment Worksheet as would customarily be included in accordance with the Servicing Standard including, without limitation, Debt Service Coverage Ratios and income, subject, in the case of any Non-Serviced Mortgage Loan, to the receipt of such report from the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer. The Master Servicer shall make reasonable efforts, consistent with the Servicing Standard, to obtain such reports from the applicable Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan Special Servicer. In addition, the Master Servicer shall deliver to the Certificate Administrator and the Special Servicer, and upon request the Master Servicer shall make available to the Rating Agencies (subject to Section 5.7), the Custodian, the Trustee and the holder of any Serviced Companion Loan, within thirty (30) days following the Master Servicer’s receipt thereof, copies of any annual, monthly or quarterly financial statements and rent rolls collected with respect to the related Mortgaged Properties. If reasonably requested by the Special Servicer, the Master Servicer shall discuss with the Mortgagor with respect to Non-Specially Serviced Mortgage Loans (i) the annual, monthly or quarterly financial statements and rent rolls collected with respect to the related Mortgaged Properties or (ii) the performance of the related Mortgaged Properties.
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Section 8.15 Other Available Information and Certain Rights of the Master Servicer.
(a) Subject to Section 5.7 and the restrictions described below, the Master Servicer shall afford any Privileged Person, any Seller, any holder of a Serviced Companion Loan or any holder of a Serviced B Note, upon reasonable prior notice and during normal business hours, reasonable access to all relevant, non-attorney-client-privileged records and documentation regarding the applicable Mortgage Loans (other than Non-Serviced Mortgage Loans), any REO Property and all accounts, insurance policies and other relevant matters relating to this Agreement (which access may occur by means of the availability of information on the Master Servicer’s internet website), and access to Servicing Officers of the Master Servicer responsible for its obligations hereunder. Copies of information or access will be provided to Certificateholders and each Certificate Owner and prospective investor providing satisfactory evidence of legal or beneficial ownership of, or intent to purchase, a Certificate, as the case may be, which shall be in the form of an Investor Certification (which shall include a certification that the Person requesting such information is not a Mortgagor under any such Mortgage Loan, a Manager of any Mortgaged Property or an Affiliate or agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing). Copies (or computer diskettes or other digital or electronic copies of such information if reasonably available in lieu of paper copies) of any and all of the foregoing items shall be made available by the Master Servicer upon request; provided, that the Master Servicer shall be permitted to require payment by the requesting party (other than the Depositor, the Trustee, the Custodian, the Certificate Administrator, the Special Servicer, the Controlling Class Representative, the Trust Advisor, any Underwriter or any Initial Purchaser) of a sum sufficient to cover the reasonable expenses actually incurred by the Master Servicer of providing access or copies (including electronic or digital copies) of any such information requested in accordance with the preceding sentence.
(b) Nothing herein shall be deemed to require the Master Servicer to confirm, represent or warrant the accuracy of (or to be liable or responsible for) any other Person’s information or report. Notwithstanding the above, the Master Servicer shall not have any liability to any Person to whom it delivers information pursuant to this Section 8.15 or any other provision of this Agreement for federal, state or other applicable securities law violations relating to the disclosure of such information. If any Person brings any claims relating to or arising from the foregoing against the Master Servicer (or any employee, attorney, officer, director or agent thereof), the Trust (from amounts held in any account (including, subject to the related Intercreditor Agreement, with respect to any such claims relating to a Serviced Companion Loan or a Serviced B Note, from amounts held in the related Custodial Account) or otherwise) shall hold harmless and indemnify the Master Servicer from any loss or expense (including attorney fees) relating to or arising from such claims.
(c) The Master Servicer shall produce the reports required of it under this Agreement; provided, that the Master Servicer shall not be required to produce any ad hoc non-standard written reports with respect to any Mortgage Loans. If the Master Servicer elects to provide such non-standard reports, it may require the Person requesting such report (other than a Rating Agency) to pay a reasonable fee to cover the costs of the preparation thereof. Any transmittal of information by the Master Servicer to any Person other than the Trustee, the
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Custodian, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor, any Underwriter, any Initial Purchaser, the Rating Agencies (subject to Section 5.7), the Controlling Class Representative or the Depositor may be accompanied by a letter from the Master Servicer containing the following provision:
“By receiving the information set forth herein, you hereby acknowledge and agree that the United States securities laws restrict any person who possesses material, non-public information regarding the Trust which issued Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 from purchasing or selling such Certificates in circumstances where the other party to the transaction is not also in possession of such information. You also acknowledge and agree that such information is being provided to you for the purpose of, and such information may be used only in connection with, evaluation by you or another Certificateholder, Certificate Owner or prospective purchaser of such Certificates or beneficial interest therein.”
(d) The Master Servicer may, at its discretion, make available by electronic media and bulletin board service certain information and may make available by electronic media or bulletin board service (in addition to making such information available as provided herein) any reports or information required by this Agreement that the Master Servicer is required to provide to any of the Rating Agencies, the Depositor and anyone the Depositor reasonably designates.
(e) Subject to Section 5.7, the Master Servicer shall cooperate in providing the Rating Agencies with such other pertinent information relating to the Mortgage Loans as is or should be in their respective possession as the Rating Agencies may reasonably request.
Section 8.16 Rule 144A Information. For as long as any of the Certificates are “restricted securities” within the meaning of Rule 144A under the Securities Act, the Master Servicer agrees to provide to the Certificate Administrator for delivery to any Holder thereof, any Certificate Owner therein and to any prospective purchaser of the Certificates or beneficial interest therein reasonably designated by the Certificate Administrator upon the request of such Certificateholder, such Certificate Owner or the Certificate Administrator subject to this Section 8.16 and the provisions of Sections 5.4 and 8.15, any information prepared by the Master Servicer that any such entity requests as being required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act.
Any recipient of information provided pursuant to this Section 8.16 shall agree that such information shall not be disclosed or used for any purpose other than the evaluation of the Certificates by such Person and the Master Servicer shall be permitted to use the letter referred to in Section 8.15(c). Unless the Master Servicer chooses to deliver the information directly, the Depositor, the Underwriters, the Initial Purchasers or the Certificate Administrator shall be responsible for the physical delivery of the information requested pursuant to this Section 8.16. As a condition to the Master Servicer making any report or information available upon request to any Person other than the parties hereto, the Master Servicer may
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require that the recipient of such information acknowledge that the Master Servicer may contemporaneously provide such information to the Depositor, the Trustee, the Custodian, the Certificate Administrator, the Special Servicer, the Trust Advisor, the Sellers, the Controlling Class Representative, the holder of a Serviced Companion Loan, the holder of a Serviced B Note, the Underwriters, the Initial Purchasers, any Rating Agency (subject to Section 5.7) and/or the Certificateholders and Certificate Owners. The Master Servicer will be permitted to require payment of a sum to be paid by the requesting party (other than the Depositor, the Rating Agencies, the Trustee, the Custodian, the Certificate Administrator, the Underwriters or the Initial Purchasers) sufficient to cover the reasonable costs and expenses of making such information available.
Section 8.17 Inspections. The Master Servicer shall, at its own expense, inspect or cause to be inspected each Mortgaged Property other than Mortgaged Properties related to Specially Serviced Mortgage Loans and Non-Serviced Mortgage Loans, every calendar year beginning in 2016, or every second (2nd) calendar year beginning in 2017 if the Unpaid Principal Balance of the related Mortgage Loan or Loan Pair is less than $2,000,000; provided that, to the extent the applicable Mortgaged Property has not been inspected within the prior sixty (60) days, the Master Servicer shall, at the expense of the Trust, inspect or cause to be inspected each Mortgaged Property related to a Mortgage Loan or Loan Pair (other than a Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan) that has a Debt Service Coverage Ratio that falls below 1.0x; provided, further, that with respect to any Mortgage Loan (other than a Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan) or Loan Pair that has an Unpaid Principal Balance of less than $2,000,000 and has been placed on the CREFC® Servicer Watch List, the Master Servicer shall inspect or cause to be inspected the related Mortgaged Property every calendar year beginning in 2017 so long as such Mortgage Loan or Loan Pair continues to be on the CREFC® Servicer Watch List; provided, if such Mortgage Loan or Loan Pair is no longer on the CREFC® Servicer Watch List at the time the inspection was scheduled, no such inspection shall be required. The Master Servicer shall prepare an Inspection Report relating to each inspection. The Master Servicer shall promptly forward the applicable Inspection Report to the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly upon receipt post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Special Servicer, solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan, and solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note, and upon request, to any Certificateholder, any Certificate Owner and any Seller.
The Special Servicer shall have the right (but not the obligation), in its sole discretion, to inspect or cause to be inspected (at its own expense) every calendar year any Mortgaged Property related to a Non-Specially Serviced Mortgage Loan; provided that the Special Servicer notifies the Master Servicer prior to such inspection. The Master Servicer is not required to inspect any Mortgaged Property that has been inspected by the Special Servicer during the preceding twelve (12) months.
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Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.
(a) The Master Servicer shall provide prompt written notice to the Special Servicer of any request for modification, waiver or amendment of any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair, together with any information in the possession of the Master Servicer that the Special Servicer may reasonably request with respect to any action that constitutes a Major Decision or Special Servicer Decision. Subject to the limitations of Sections 10.3 and 12.3 hereof, the Master Servicer shall have the following powers:
(i) Subject to Section 10.3, the right of the Special Servicer to process Major Decisions and Special Servicer Decisions, and the terms and conditions of any related Intercreditor Agreement, the Master Servicer in accordance with the Servicing Standard may agree to any modification, waiver, amendment or consent of or relating to any term (other than a Money Term) of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced Companion Loan or a Serviced B Note that is not a Specially Serviced Mortgage Loan (such terms to include, without limitation, Master Servicer Consent Matters set forth in Section 8.3(a) hereof), provided that such amendment would not result in an Adverse REMIC Event or an Adverse Grantor Trust Event. In any event, the Master Servicer shall promptly notify the Special Servicer of any material modification, waiver, amendment or consent executed by the Master Servicer pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy thereof. Notwithstanding the foregoing provisions of this Section 8.18, if the related Mortgage Loan documents require a Mortgagor to pay a fee for an assumption, modification, waiver, amendment or consent that would be due or partially due to the Special Servicer, then the Master Servicer shall not waive the portion of such fee due to the Special Servicer without the Special Servicer’s written approval.
(ii) Subject to Section 10.3, the right of the Special Servicer to process Major Decisions and Special Servicer Decisions, and the terms and conditions of any related Intercreditor Agreement, the Master Servicer may extend the maturity date of any Balloon Loan (other than a Non-Serviced Mortgage Loan) that is not a Specially Serviced Mortgage Loan to a date that is not more than sixty (60) days following the original Maturity Date, if in the Master Servicer’s sole judgment exercised in good faith (and evidenced by an Officer’s Certificate delivered to the Special Servicer and the Trustee), a default in the payment of the Balloon Payment is reasonably foreseeable and such extension is reasonably likely to produce a greater recovery to the Holders and the holders of the related Serviced B Note and Serviced Companion Loan (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Balloon Loan and the Mortgagor has obtained an executed written commitment acceptable to the Special Servicer (subject only to satisfaction of conditions set forth therein) for refinancing of such Balloon Loan or purchase of the related Mortgaged Property. The Master Servicer shall process all such extensions.
(b) In connection with processing (or granting consent to the Master Servicer in connection with any action being processed by the Master Servicer that is) any Major Decision or Special Servicer Decision, the Special Servicer (in accordance with the Servicing Standard and subject to the terms and conditions of any related Intercreditor Agreement) shall
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also have the right: (i) to agree to any modification, waiver, amendment or consent of or relating to any term (other than a Money Term) of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), a Serviced Companion Loan or a Serviced B Note that is not a Specially Serviced Mortgage Loan, provided that such amendment would not result in an Adverse REMIC Event or an Adverse Grantor Trust Event; and (ii) to extend the maturity date of any Balloon Loan (other than a Non-Serviced Mortgage Loan) that is not a Specially Serviced Mortgage Loan to a date that is not more than sixty (60) days following the original Maturity Date, if in the Special Servicer’s sole judgment exercised in good faith (and evidenced by an Officer’s Certificate delivered to the Trustee), a default in the payment of the Balloon Payment is reasonably foreseeable and such extension is reasonably likely to produce a greater recovery to the Holders and the holders of the related Serviced B Note and Serviced Companion Loan (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Balloon Loan and the Mortgagor has obtained an executed written commitment acceptable to the Special Servicer (subject only to satisfaction of conditions set forth therein) for refinancing of such Balloon Loan or purchase of the related Mortgaged Property.
(c) The Master Servicer may require, in its discretion (unless prohibited or otherwise provided in the Mortgage Loan documents), as a condition to granting any request by a Mortgagor for any consent, modification, waiver, amendment or collateral release, that such Mortgagor pay to the Trust a reasonable and customary modification fee to the extent permitted by law; provided that the collection of such fee shall not be permitted if collection of such fee would cause a “significant modification” (within the meaning of Treasury Regulation Section 1.860G-2(b)) of the Mortgage Loan. The Master Servicer may charge the Mortgagor for any costs and expenses (including attorneys’ fees and rating agency fees) incurred by the Master Servicer or the Special Servicer (and any amounts incurred by the Special Servicer shall be reimbursed to the Special Servicer as an Additional Trust Expense) in connection with any request for a modification, waiver, amendment or collateral release. The Master Servicer agrees to use its reasonable best efforts in accordance with the Servicing Standard to collect such costs, expenses and fees from the Mortgagor and if the Master Servicer believes that the costs and expenses (including attorneys’ fees) to be incurred by the Master Servicer in connection with any request for a modification, waiver or amendment will result in a payment or reimbursement by the Trust, then the Master Servicer shall notify the Special Servicer prior to incurring any such costs and expenses, provided that the failure or inability of the Mortgagor to pay any such costs and expenses shall not impair the right of the Master Servicer to cause such costs and expenses (but not including any modification fee), and interest thereon at the Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid by the Mortgagor).
(d) The Master Servicer shall notify the Trustee, the Custodian, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period) and the Special Servicer of any modification, waiver or amendment of any term of any Mortgage Loan permitted by it under this Section and the date thereof, and shall deliver to the Custodian (on the Trustee’s behalf) for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly following the execution thereof except to the extent such documents have been submitted to the applicable recording office, in which event the Master
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Servicer shall promptly deliver copies of such documents to the Custodian (on the Trustee’s behalf). The Master Servicer shall not agree to any modification, waiver, or amendment of any term of (i) any Mortgage Loan that constitutes a Major Decision or Special Servicer Decision or (ii) any Specially Serviced Mortgage Loan or Non-Serviced Mortgage Loan. The Master Servicer shall notify the holder of any related Serviced B Note or Serviced Companion Loan of any modification of the monthly payments of an A/B Whole Loan or a Loan Pair, as the case may be, and such monthly payments shall be allocated in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with the related Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents and Section 8.30 hereof).
(e) With respect to any Non-Specially Serviced Mortgage Loan, the Master Servicer shall provide prompt written notice to the Special Servicer of any request for modification, waiver or amendment of such Mortgage Loan or any related A/B Whole Loan or Loan Pair, together with any information in the possession of the Master Servicer that the Special Servicer may reasonably request for any such action that constitutes a Major Decision or Special Servicer Decision. Unless the Master Servicer and the Special Servicer mutually agree that the Master Servicer shall process such request, the Special Servicer shall process any request for modification, waiver or amendment of any Mortgage Loan (other than any Non-Serviced Mortgage Loan), A/B Whole Loan or Loan Pair that constitutes a Major Decision or Special Servicer Decision. If the Special Servicer and the Master Servicer mutually agree that the Master Servicer shall process such request, the Master Servicer and Special Servicer shall comply with the procedures in Section 10.3.
Section 8.19 Specially Serviced Mortgage Loans.
(a) Within five (5) Business Days after becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan or any related Serviced Companion Loan or Serviced B Note, the Master Servicer or the Special Servicer, as applicable, shall send a written notice to the Special Servicer (if such notice is sent by the Master Servicer), the Master Servicer (if such notice is sent by the Special Servicer), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the 17g-5 Information Provider (who shall promptly post such notice on the 17g-5 Information Provider’s Website), the Certificate Administrator (who shall promptly post such notice on the Certificate Administrator’s Website), the Trustee, the Custodian, the related Seller and, solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note and solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan, which notice shall identify the related Mortgage Loan and set forth in reasonable detail the nature and relevant facts of such Servicing Transfer Event and whether such Mortgage Loan is covered by an Environmental Insurance Policy (and for purposes of stating whether such Mortgage Loan is covered by an Environmental Insurance Policy the Master Servicer may rely on Schedule IX attached hereto) and, in the case of a notice to the Special Servicer, shall be accompanied by a copy of the Servicer Mortgage File.
(b) Prior to or concurrently with the transfer of the servicing of any Specially Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify the related
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Mortgagor of such transfer in accordance with the Servicing Standard (and shall send a copy of such notice to the Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be based on information supplied to the Master Servicer in writing by the Special Servicer as provided hereby. The Master Servicer shall have no duty to investigate or confirm the accuracy of any information provided to it by the Special Servicer and shall have no liability for the inaccuracy of any of its reports due to the inaccuracy of the information provided by the Special Servicer.
(d) Subject to Section 5.4(e), on or prior to each Distribution Date, the Master Servicer shall provide to the Special Servicer, in order for the Special Servicer to comply with its obligations under this Agreement, such information (and in the form and medium) as the Special Servicer may reasonably request in writing from time to time.
Section 8.20 Representations, Warranties and Covenants of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to and covenants with each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date:
(i) the Master Servicer is duly organized, validly existing and in good standing as a national banking association under the laws of the United States of America, and shall be and thereafter remain, in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Master Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement. The Master Servicer has duly and validly authorized the execution, delivery and performance of this Agreement and this Agreement has been duly executed and delivered by the Master Servicer; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, evidences the valid and binding obligation of the Master Servicer enforceable against the Master Servicer in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership and other similar laws affecting creditors’ rights generally (and, to the extent applicable, the rights of creditors of national banks) as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(iii) the execution and delivery of this Agreement by the Master Servicer, the consummation by the Master Servicer of the transactions contemplated hereby, and the fulfillment of or compliance by the Master Servicer with the terms and conditions of this
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Agreement will not (1) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, in any manner that materially and adversely affects its ability to perform its obligations under this Agreement or (2) result in a breach of any term or provision of its organizational documents;
(iv) no litigation is pending or, to the best of the Master Servicer’s knowledge, threatened, against it, the outcome of which, in the Master Servicer’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to service the Mortgage Loans it is required to service hereunder or to perform any of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified to do business or licensed in one or more states does not materially and adversely affect the performance by it of its obligations hereunder; and
(vi) the performance of the services by the Master Servicer contemplated by this Agreement are in the ordinary course of business of the Master Servicer and the Master Servicer possesses all licenses, permits and other authorizations necessary to perform its duties hereunder in each state, except to the extent that being licensed or having permits or other authorization in one or more states is not necessary for the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Master Servicer by any of the Depositor, the Trustee, the Special Servicer, the Certificate Administrator, the Custodian or the Trust Advisor. The Master Servicer shall give prompt written notice to the Trustee, the Certificate Administrator, the Custodian, the Depositor and the Special Servicer of the occurrence, or the failure to occur, of any event that, with notice or the passage of time or both, would cause any representation or warranty in this Section to be untrue or inaccurate in any respect.
Section 8.21 Merger or Consolidation. Any Person into which the Master Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, consolidation or other change in form to which the Master Servicer shall be a party (but not the surviving entity), or any Person succeeding to the business of the Master Servicer, shall be the
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successor of the Master Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that the Master Servicer shall have provided a Rating Agency Communication to each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing direct beneficial ownership interests in any Serviced Companion Loan or Serviced B Note. If a transaction described in the preceding sentence occurs and (i) the conditions to the provisions in such sentence are not met, then the Trustee may terminate or (ii) the conditions set forth in the following paragraph are not met, the Trustee shall terminate, the successor’s, survivor’s or resulting entity’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Sections 8.28 and 8.29. The successor or surviving Person shall provide prompt written notice of the merger or consolidation to the Trustee, the Certificate Administrator, the Custodian and the 17g-5 Information Provider.
Notwithstanding the foregoing, if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Master Servicer may not remain the Master Servicer under this Agreement after (x) being merged or consolidated with or into any Prohibited Party, or (y) transferring all or substantially all of its assets to any Prohibited Party, unless (i) the Master Servicer is the surviving entity of such merger, consolidation or transfer or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld (and if, within forty-five (45) days following the date of delivery of a notice by the Master Servicer to the Depositor of any merger or similar transaction described in the preceding paragraph, the Depositor shall have failed to notify the Master Servicer of the Depositor’s determination to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent).
Section 8.22 Resignation of Master Servicer.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Master Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Trustee. No such resignation shall become effective until a successor master servicer designated by the Trustee, with the consent of the Depositor and the Certificate Administrator, shall have assumed the Master Servicer’s responsibilities and obligations under this Agreement and the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication. Notice of such resignation shall be given promptly by the Master Servicer to the other parties to this Agreement. The Master Servicer shall bear all costs associated with its resignation and the transfer of servicing under this Section 8.22(a). Notwithstanding the foregoing, if the Master Servicer shall cease to serve as such in accordance with this Section 8.22(a) and a successor servicer shall not have been engaged, the Trustee or an agent of the Trustee shall assume the duties and obligations of the Master Servicer under this Agreement. If the Trustee or an agent of the Trustee assumes the duties and obligations of the Master Servicer pursuant to this Section 8.22(a), the Trustee or such agent shall be permitted to
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resign as master servicer if it has been replaced by a successor servicer satisfying the criteria in the fourth (4th) preceding sentence above.
(b) The Master Servicer may resign from the obligations and duties imposed on it, upon thirty (30) days notice to the Depositor, the Trustee and the Certificate Administrator; provided that (i) a successor master servicer (A) is available, (B) has a net worth of at least $15,000,000 and (C) is willing to and does assume the obligations, responsibilities, and covenants to be performed hereunder by the Master Servicer on substantially the same terms and conditions, and for not more than equivalent compensation to that herein provided; (ii) the Master Servicer bears all costs associated with its resignation and the transfer of servicing; (iii) (A)(x) such successor master servicer is acting as master servicer in a commercial mortgage loan securitization that was rated by DBRS and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither DBRS nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such master servicer as master servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal or placement on watch or (y) if such successor master servicer is not acting as master servicer in a commercial mortgage loan securitization that was rated by DBRS and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; and (B) such successor master servicer has a master servicer rating of at least “CMS3” from Fitch; and (iv) the resigning Master Servicer shall have provided each Rating Agency with a Rating Agency Communication with respect to such servicing transfer.
Section 8.23 Assignment or Delegation of Duties by Master Servicer. The Master Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Master Servicer (as provided in Section 8.4) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Master Servicer hereunder or (B) assign and delegate all of its duties hereunder; provided that with respect to clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer, the holder of any related Serviced B Note (only if such assignment/delegation relates to an A/B Whole Loan or, if applicable, a Loan Pair), the holder of any related Serviced Companion Loan (only if such assignment/delegation relates to a Loan Pair) and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the Depositor and the Trustee an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Master Servicer, with like effect as if originally named as a party to this Agreement or any other subservicing agreement with any Surviving Sub-Servicer; (iii) the purchaser or transferee has a net worth in excess of $15,000,000; (iv) the Master Servicer shall have provided to each Rating Agency a Rating Agency Communication with respect to such assignment and delegation; and (v) the Depositor consents to such assignment and delegation, such consent not to be unreasonably withheld. In the case of any such assignment and delegation in accordance with the requirements of subclause (B) of this Section, the Master Servicer shall be released from its obligations under this Agreement, except that the Master Servicer shall remain liable for all liabilities and obligations incurred by it as the Master Servicer hereunder prior to the satisfaction of the
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conditions to such assignment set forth in the preceding sentence. Notwithstanding the above, the Master Servicer may appoint the sub-servicers in accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicer and Others.
(a) Neither the Master Servicer nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Master Servicer shall be under any liability to the Trust, the holders of the Certificates, any other party to this Agreement, the Underwriters, the Initial Purchasers, the holder of any Serviced Companion Loan or the holder of any Serviced B Note for any action taken or for refraining from the taking of any action in good faith, or using reasonable business judgment, consistent with the Servicing Standard; provided that this provision shall not protect the Master Servicer or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties under this Agreement or by reason of negligent disregard of obligations and duties hereunder. The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the Special Servicer) respecting any matters arising hereunder. The Master Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Mortgage Loans in accordance with this Agreement; provided that the Master Servicer, subject to Section 9.34, may in its sole discretion undertake any such action that it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders, the Trustee and the Trust in the Mortgage Loans, the interests of the holder of any Serviced B Note or the interests of the holder of any Serviced Companion Loan (subject to the Special Servicer’s servicing of Specially Serviced Mortgage Loans as contemplated herein), or shall undertake any such action if instructed to do so by the Trustee. In such event, all legal expenses and costs of such action shall be expenses and costs of the Trust, and the Master Servicer shall be entitled to be reimbursed therefor as Servicing Advances as provided by Section 5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in, any certificates or opinions furnished to the Master Servicer and conforming to the requirements of this Agreement. Subject to the Servicing Standard, the Master Servicer shall have the right to rely on information provided to it by the Special Servicer and Mortgagors, and will have no duty to investigate or verify the accuracy thereof. Neither the Master Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Master Servicer or such Affiliate, director, officer, employee, member, manager or agent, was negligent in ascertaining the pertinent facts. Neither the Master Servicer nor any director, officer, employee, agent or Affiliate, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation,
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warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Master Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent the Master Servicer is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) reasonably believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Master Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed by it to be genuine and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer shall be indemnified by the Trustee, the Certificate Administrator, the Custodian and the Special Servicer, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Trustee’s, the Certificate Administrator’s, the Custodian’s or the Special Servicer’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder. The Master Servicer shall immediately notify the Trustee, the Certificate Administrator, the Custodian and the Special Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Master Servicer to indemnification hereunder, whereupon the Trustee, the Certificate Administrator, the Custodian or the Special Servicer, in each case, to the extent the claim is related to its respective willful misfeasance, bad faith or negligence, may assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trustee, the Certificate Administrator, the Custodian and the Special Servicer shall not affect any rights that the Master Servicer may have to indemnification under this Agreement or
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otherwise, unless the Trustee’s, the Certificate Administrator’s, the Custodian’s or the Special Servicer’s defense of such claim is materially prejudiced thereby. Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Master Servicer hereunder. Any payment hereunder made by the Trustee, the Certificate Administrator, the Custodian or the Special Servicer pursuant to this paragraph to or at the direction of the Master Servicer shall be paid from the Trustee’s, the Certificate Administrator’s, the Custodian’s or Special Servicer’s own funds, without reimbursement from the Trust therefor except to the extent achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian or the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Certificate Administrator, the Custodian or the Special Servicer, as the case may be, was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims.
(a) The Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer (the “Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of collections on, and other proceeds of, the Mortgage Loans, any Serviced Companion Loans and any Serviced B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Master Servicer Losses”) incurred in connection with any legal action relating to this Agreement, any Mortgage Loans, any Serviced Companion Loans, any Serviced B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses, other than any loss, liability or expense: (i) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (ii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (iii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (iv) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties.
Except as provided in the following sentence, indemnification for Master Servicer Losses described in the preceding paragraph (including in the case of such Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any Serviced B Note. In the case of any such Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination
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respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole.
The Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any Serviced B Note, as set forth above, out of the related Custodial Account) any payments certified by the Master Servicer to the Trustee and the Certificate Administrator as required to be made to the Master Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify each other party to this Agreement, the Trust, and any director, officer, member, manager, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Master Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Depositor, as applicable, shall immediately notify the Master Servicer if a claim is made by any Person with respect to this Agreement or the Mortgage Loans entitling the Trustee, the
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Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Trust to indemnification under this Section 8.25(b), whereupon the Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Custodian or the Trust may have to indemnification under this Agreement or otherwise, unless the Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Master Servicer was not culpable or that the Master Servicer did not act with willful misfeasance, bad faith or negligence.
(c) Any Non-Serviced Mortgage Loan Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 8.26 Loan Registry. It is hereby acknowledged and agreed that the loan agreement for each of the Mortgage Loans identified on Schedule VIII attached to this Agreement provides that the related Mortgagor or an agent of the related Mortgagor shall maintain a register (the “Lender Register”) on which it will record the related Mortgage Loan and each assignment thereof and/or participation therein. Promptly following the Closing Date, the Master Servicer shall confirm, with respect to each of the Mortgage Loans identified on Schedule VIII attached to this Agreement, that the related Mortgagor or its agent has reflected the Trustee on behalf of the Certificateholders as the new lender on the applicable Lender Register.
Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions. The Master Servicer shall act in accordance with this Agreement and the REMIC Provisions and related provisions of the Code in order to create or maintain the status of any REMIC Pool as a REMIC and the Grantor Trust created hereby as a grantor trust under the Code. The Master Servicer shall not (A) take any action or cause any REMIC Pool to take any action that could (i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii) result in
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the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on contributions pursuant to Section 860G(d)) or (B) take any action or cause the Grantor Trust to take any action that could (i) endanger its status as a grantor trust or (ii) result in the imposition of any tax upon the Grantor Trust unless the Trustee shall have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such tax. The Master Servicer shall comply with the provisions of Article XII hereof. Notwithstanding the foregoing, the Master Servicer shall not be liable for an Adverse REMIC Event resulting from the failure of any Mortgage Loan by its terms to comply with Revenue Procedure 2010-30, provided that the Master Servicer directly pursues any available remedies against the relevant Seller with respect to any breach or violation of a representation or warranty with respect to such Mortgage Loan’s compliance with Revenue Procedure 2010-30.
Section 8.28 Termination. The obligations and responsibilities of the Master Servicer created hereby (other than the obligation of the Master Servicer to make payments to the Certificate Administrator as set forth in Section 8.29 and the obligations of the Master Servicer to the Trustee, the Certificate Administrator, the Custodian, the Special Servicer and the Trust that survive termination of this Agreement as provided herein) shall terminate (i) on the date which is the later of (A) the final payment or other liquidation of the last of the Mortgage Loans remaining outstanding (and final distribution to the Certificateholders) or (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) if a Servicer Termination Event described in clauses 8.28(a)(iii), (iv), (viii), (ix) or (x) has occurred and is continuing, sixty (60) days following the date on which the Trustee or Depositor gives written notice to the Master Servicer that the Master Servicer is terminated or (iii) if a Servicer Termination Event described in clauses 8.28(a)(i), (ii), (v), (vi) or (vii) has occurred and is continuing, immediately upon the date on which the Trustee or the Depositor gives written notice to the Master Servicer that the Master Servicer is terminated. After any Servicer Termination Event (but subject, in the case of Section 8.28(a)(x), to the waiver right of the Depositor described therein), the Trustee (i) may elect to terminate the Master Servicer by providing such notice, and (ii) shall provide such notice if holders of Certificates representing more than 25% of the aggregate Voting Rights of all Certificates so direct the Trustee.
(a) “Servicer Termination Event,” wherever used herein, means any one of the following events:
(i) any failure by the Master Servicer to remit to the Certificate Administrator or otherwise make any payment required to be remitted by the Master Servicer under the terms of this Agreement, including any required Advances; provided that, if a payment is required to be remitted by the Master Servicer to the Certificate Administrator on the Master Servicer Remittance Date, the failure to remit that payment to the Certificate Administrator shall only be a “Servicer Termination Event” under this clause (a)(i) if that payment has not been remitted to the Certificate Administrator prior to 10:00 a.m. (New York City time) on the related Distribution Date; or
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(ii) any failure by the Master Servicer to make a required deposit to the Collection Account which continues unremedied for one (1) Business Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of the duties, covenants or agreements on the part of the Master Servicer contained in this Agreement (other than if, and for so long as, the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the duties, covenants or agreements set forth in Article XIII to the extent described in Section 8.28(a)(ix)) which continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee; provided such cure period will be extended to the extent necessary to permit the Master Servicer to cure such failure if (A) the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such failure and (B) the Certificateholders shall not be materially and adversely affected thereby; provided, further, that such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained in Section 8.20 hereof that materially and adversely affects the interest of any holder of any Class of Certificates and that continues unremedied for a period of thirty (30) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee, provided such cure period will be extended to the extent necessary to permit the Master Servicer to cure such breach if (A) the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such breach and (B) the Certificateholders shall not be materially and adversely affected thereby; provided, further, that such cure period may not exceed 90 days; or
(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or
(vi) the Master Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; or
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(viii) a Servicing Officer of the Master Servicer obtains knowledge that (a) DBRS or Moody’s has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan or (B) placed one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan on “watch status” in contemplation of a ratings downgrade or withdrawal (and, in the case of either of clauses (A) or (B), such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by DBRS or Moody’s, as applicable, within sixty (60) days of the date such Servicing Officer obtained such actual knowledge) and, in the case of either of clauses (A) or (B), publicly cited servicing concerns with the Master Servicer as the sole or material factor in such rating action; or (b) the Master Servicer ceases to have a master servicer rating of at least “CMS3” from Fitch and such rating is not reinstated within sixty (60) days; or
(ix) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Master Servicer or any Additional Servicer or Sub-Servicer appointed by such Master Servicer (other than any Additional Servicer that is a Seller Sub-Servicer) shall fail to deliver any Regulation AB or any Exchange Act reporting items required to be delivered by such servicer under Article XIII of this Agreement at the times required under such Article; or
(x) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of Regulation AB or the Exchange Act, the Master Servicer shall fail to terminate any Sub-Servicer that is a Reporting Servicer subject to and in accordance with Section 8.4(c); provided that the Depositor may waive any such Servicer Termination Event (including waiving the failure by a Reporting Servicer to deliver any applicable reports required pursuant to Regulation AB or the Exchange Act) under this clause (x) in its sole discretion without the consent of the Trustee or any Certificateholders.
(b) Reserved.
(c) A Servicer Termination Event may be waived by the Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of the Certificates (except a default (i) in making any required deposits to or payments from the Collection Account or the Distribution Account in accordance with this Agreement, (ii) in remitting payments as received in accordance with this Agreement or (iii) under clauses (ix) and (x) of the definition of “Servicer Termination Event”). If a Servicer Termination Event by the Master Servicer is waived in connection with an A/B Whole Loan or a Loan Pair, the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, shall, to the extent set forth in the related Intercreditor Agreement, be entitled to require that the Master Servicer appoint a sub-servicer to service such A/B Whole Loan or Loan Pair, as the case may be, if such sub-servicer meets the requirements that a successor master servicer would be required to satisfy to be a successor master servicer set forth in Section 8.22(b); provided, that the Master Servicer shall be required to provide each Rating Agency with a Rating Agency Communication.
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Section 8.29 Procedure Upon Termination.
(a) Notice of any termination pursuant to clause (i) of the first (1st) paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon which the final transfer by the Master Servicer to the Certificate Administrator shall be made, shall be given promptly in writing by the Master Servicer to the Certificate Administrator no later than the later of (i) five (5) Business Days after the final payment or other liquidation of the last of the Mortgage Loans or (ii) the sixth (6th) day of the month of such final distribution. Promptly upon receipt of any such notice of termination, the Certificate Administrator shall forward such notice of termination to the other parties to this Agreement. Upon any such termination, the duties of the Master Servicer (other than the obligation of the Master Servicer to pay to the Certificate Administrator the amounts remaining in the Collection Account as set forth below and the obligations of the Master Servicer to the Trustee and the Trust that survive termination of this Agreement as provided herein) shall terminate and the Master Servicer shall transfer to the Certificate Administrator the amounts remaining in the Collection Account (and any sub-account) after making the withdrawals permitted to be made pursuant to Section 5.2 and shall thereafter terminate the Collection Account and any other account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to the Master Servicer pursuant to clause (ii) of the first (1st) paragraph of Section 8.28, or on the date on which a written notice of termination is given to the Master Servicer pursuant to clause (iii) of the first (1st) paragraph of Section 8.28 all authority, power and rights of the Master Servicer under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall terminate (except for any rights relating to indemnification, unpaid servicing compensation or unreimbursed Advances and related interest); provided, that in no event shall the termination of the Master Servicer be effective until a successor master servicer shall have (i) succeeded the Master Servicer as successor master servicer, (ii) notified the Master Servicer of such succession and (iii) assumed the Master Servicer’s obligations and responsibilities under this Agreement pursuant to a writing executed by the successor master servicer and delivered to each of the other parties hereto. Except as provided in the next sentence, the Trustee may not succeed the Master Servicer as servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Master Servicer pursuant to Section 8.22(b) hereof. Notwithstanding the foregoing sentence, if the Master Servicer is terminated as a result of an event described in Section 8.28(a)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee shall act as successor servicer immediately upon delivery of a notice of termination to the Master Servicer and shall use commercially reasonable efforts within ninety (90) days of assuming the duties of the Master Servicer, either to satisfy the conditions of Section 8.22(b) hereof or to transfer the duties of the Master Servicer to a successor servicer who has satisfied such conditions. The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents or otherwise. The Master Servicer agrees to cooperate with the Trustee, the Custodian and the Certificate Administrator in effecting the termination of the Master Servicer’s responsibilities and rights hereunder as Master Servicer including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the
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Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor servicer designated by the Trustee to assume the Master Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Master Servicer in the Collection Account and any other account or fund maintained or thereafter received with respect to the Mortgage Loans.
(c) If (i) the Master Servicer receives a written notice of termination (A) pursuant to clause (ii) of the first (1st) paragraph of Section 8.28 relating solely to a Servicer Termination Event set forth in clause (viii) or (ix) of Section 8.28(a) or (B) pursuant to Section 8.21 and (ii) the Master Servicer provides the Trustee with the appropriate “request for proposal” materials within five (5) Business Days after receipt of such written notice of termination, then the Trustee shall promptly thereafter (using such “request for proposal” materials provided by the Master Servicer) solicit good faith bids for the rights to service the Mortgage Loans under this Agreement from at least three (3) but no more than five (5) Qualified Bidders or, if three (3) Qualified Bidders cannot be located, then from as many persons as the Trustee can determine are Qualified Bidders. At the Trustee’s request, the Master Servicer shall supply the Trustee with the names of Persons from whom to solicit such bids. In no event shall the Trustee be responsible if less than three (3) Qualified Bidders submit bids for the right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a condition of its bid, to (i) enter into this Agreement as successor master servicer and (ii) agree to be bound by the terms hereof, not later than sixty (60) days after termination of the Master Servicer hereunder. The Trustee shall select the Qualified Bidder with the highest cash bid (or such other Qualified Bidder as the Master Servicer may direct) (the “Successful Bidder”) to act as successor master servicer hereunder. The Trustee shall direct the Successful Bidder to enter into this Agreement as successor master servicer pursuant to the terms hereof, and in connection therewith to deliver the amount of the Successful Bidder’s cash bid to the Trustee or its designee by wire transfer of immediately available funds to an account specified by the Trustee or its designee no later than 10:00 a.m. New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights hereunder to and by the Successful Bidder and receipt of such cash bid, the Trustee shall remit or cause to be remitted to the terminated Master Servicer the amount of such cash bid received from the Successful Bidder (net of all out-of-pocket expenses incurred in connection with obtaining such bid and transferring servicing) by wire transfer of immediately available funds to an account specified by the terminated Master Servicer no later than 1:00 p.m. New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as successor Master Servicer within thirty (30) days after the termination of the Master Servicer hereunder or no Successful Bidder was identified within such 30-day period, the Trustee shall have no further obligations under Section 8.29(c) and may act or may select another successor to act as Master Servicer hereunder in accordance with Section 8.29(b).
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(g) If the Master Servicer is terminated as a result of an event described in Section 8.28(a)(viii), then the Master Servicer shall have the right to enter into a sub-servicing agreement or primary servicing agreement with the successor master servicer with respect to all applicable Mortgage Loans that are not subject to a sub-servicing agreement or primary servicing agreement, if the Master Servicer (i) is acting as primary servicer in a commercial mortgage loan securitization that was rated by DBRS and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither DBRS nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such primary servicer as primary servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal (or placement on watch) or, in the case of each such Rating Agency, be otherwise acceptable to such Rating Agency as evidenced by a Rating Agency Confirmation, and (ii) has a master servicer rating of at least “CMS3” from Fitch or, in the case of each such Rating Agency, be otherwise acceptable to such Rating Agency as evidenced by a Rating Agency Confirmation;.
(h) If the Trustee or an Affiliate acts pursuant to this Section 8.29 as successor to the resigning or terminated Master Servicer, it may reduce the Excess Servicing Fee Rate to the extent that its or such Affiliate’s compensation as successor Master Servicer would otherwise be below the market rate servicing compensation. If the Trustee elects to appoint a successor to the resigning or terminated Master Servicer other than itself or an Affiliate pursuant to this Section 8.29, it may reduce the Excess Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer that meets the requirements of this Section 8.29.
Section 8.30 Certain Matters with Respect to Joint Mortgage Loans.
(a) If a Seller of a Joint Mortgage Loan (a “Repurchasing Seller”) repurchases, or substitutes for, the Mortgage Note(s) (as such term is defined in this Section 8.30(a)) (a “Repurchased Note”) related to such Joint Mortgage Loan that it sold to the Depositor, but the other Seller of such Joint Mortgage Loan does not repurchase, or substitute for, the Mortgage Note(s) related to such Joint Mortgage Loan that it sold to the Depositor, the provisions of this Section 8.30 shall apply prior to the adoption, pursuant to Section 14.3(i), of any amendment to this Agreement that provides otherwise. Each Seller of a Joint Mortgage Loan has agreed pursuant to the terms of the related Mortgage Loan Purchase Agreement that the terms set forth in this Section 8.30 with respect to the servicing and administration of such Joint Mortgage Loan shall apply if one or more of the Mortgage Notes related to such Joint Mortgage Loan has been repurchased or, by way of substitution, otherwise removed from the Trust and at least one other Mortgage Note related to such Joint Mortgage Loan is included in the Trust until such time as all of the Mortgage Notes related to such Joint Mortgage Loan are no longer included in the Trust. For purposes of this Section 8.30, Section 14.3(i) and Section 14.9 only, “Mortgage Note” shall mean with respect to any Joint Mortgage Loan, each original promissory note that collectively represents the Mortgage Note (as defined in Article I) with respect to such Joint Mortgage Loan and shall not be a collective reference to such promissory notes.
(b) Custody of and record title under the Mortgage Loan documents with respect to the applicable Joint Mortgage Loan shall be held exclusively by the Custodian (on
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behalf of the Trustee) as provided under this Agreement, except that the Repurchasing Seller shall hold and retain title to its original Repurchased Note and any related endorsements thereof.
(i) All of the Mortgage Notes with respect to any Joint Mortgage Loan shall be of equal priority, and no portion of any Mortgage Note shall have priority or preference over any other portion of the other Mortgage Notes or security therefor. Payments from the related Mortgagor (including, without limitation, any Late Fees) or any other amounts received with respect to each Mortgage Note shall be collected as provided in this Agreement by the Master Servicer and shall be applied upon receipt by the Master Servicer pro rata to each related Mortgage Note based on its respective Repurchased Percentage Interest (as defined in Section 8.30(b)(ii)), subject to Section 8.30(b)(ii). Payments or any other amounts received with respect to the related Repurchased Note shall be held in trust for the benefit of the applicable Repurchasing Seller and remitted (net of its pro rata share of any Master Servicing Fees, Special Servicing Fees, Trust Advisor Fees and any other amounts due to the Master Servicer or the Special Servicer) to the applicable Repurchasing Seller or its designee by the Master Servicer on each Distribution Date pursuant to instructions provided by the applicable Repurchasing Seller and deposited and applied in accordance with this Agreement, subject to Section 8.30(b)(ii). If any Joint Mortgage Loan to which this Section 8.30 applies becomes an REO Loan, payments or any other amounts received with respect to any such Joint Mortgage Loan shall be collected and shall be applied upon receipt by the Master Servicer pro rata to each related Mortgage Note based on its respective Repurchased Percentage Interest, subject to Section 8.30(b)(ii). Any Appraisal Reductions calculated with respect to any Joint Mortgage Loan subject to this Section 8.30 shall be allocated to each related Mortgage Note pro rata based upon the respective Unpaid Principal Balances thereof.
(ii) If the Master Servicer or the Special Servicer, as applicable, receives an aggregate payment of less than the aggregate amount due under any such Joint Mortgage Loan at any particular time, the applicable Repurchasing Seller shall receive from the Master Servicer an amount equal to such Repurchasing Seller’s Repurchased Percentage Interest of such payment. All expenses, losses and shortfalls relating solely to such Joint Mortgage Loan including, without limitation, losses of principal or interest, Nonrecoverable Advances, interest on Servicing Advances, Trust Advisor Expenses, Special Servicing Fees, Workout Fees and Liquidation Fees (including any such fees related to the applicable Mortgage Notes), shall be allocated between the holders of the related Mortgage Notes pro rata based upon the respective Unpaid Principal Balances thereof. In no event shall any costs, expenses, fees or any other amounts related to any Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage Loan be deducted from payments or any other amounts received with respect to such Joint Mortgage Loan and payable to the applicable Repurchasing Seller. For purposes of Section 8.30(b)(i), this Section 8.30(b)(ii) and Section 8.30(g), “Repurchased Percentage Interest” shall mean the percentage interest of the applicable Seller in the applicable Joint Mortgage Loan.
(iii) A Joint Mortgage Loan to which this Section 8.30 applies shall be serviced for the benefit of the applicable Repurchasing Seller and the Certificateholders pursuant to the terms and conditions of this Agreement in accordance with the Servicing Standard and in accordance with the provisions herein as if (A) such Joint Mortgage Loan were a Loan Pair, (B) the related Mortgage Note(s) not repurchased were (1) a Serviced Pari Passu Mortgage Loan and (2) the only Mortgage Loan that is part of such Joint Mortgage Loan, and (C) the related
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Repurchased Note were a Serviced Companion Loan. No Repurchasing Seller shall be permitted to terminate the Master Servicer, the Special Servicer or the Trust Advisor as servicer, special servicer or trust advisor, respectively, of the related Repurchased Note. All rights of the mortgagee under each such Joint Mortgage Loan shall be exercised by the Master Servicer or the Special Servicer, on behalf of the Trust to the extent of its interest therein and the applicable Repurchasing Seller in accordance with this Agreement.
(iv) The related Repurchasing Seller shall be treated hereunder as if it were a Serviced Companion Loan noteholder on a pari passu basis. Funds collected by the Master Servicer or the Special Servicer, as applicable, and applied to the applicable Mortgage Notes shall be deposited and disbursed in accordance with the provisions hereof relating to holders of Loan Pairs that are pari passu in right of payment. Compensation shall be paid to the Master Servicer, the Special Servicer and the Trust Advisor with respect to each Repurchased Note as provided in this Agreement as if each such Mortgage Note were a Serviced Companion Loan. None of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer, the Special Servicer or the Trust Advisor shall have any obligation to make P&I Advances with respect to any Repurchased Note or, if no related Mortgage Note is part of the Trust, a Servicing Advance with respect to any Repurchased Note. Except as otherwise specified herein, the Master Servicer and the Special Servicer shall have no reporting requirement with respect to any Repurchased Note other than to deliver to the related Repurchasing Seller any document as is required to be delivered to a holder of a Serviced Companion Loan hereunder.
(c) If any non-repurchased Mortgage Note relating to a Joint Mortgage Loan to which this Section 8.30 applies is considered a Specially Serviced Mortgage Loan, then any related Repurchased Note shall also be a Specially Serviced Mortgage Loan under this Agreement. The Special Servicer shall cause such related Repurchased Note to be specially serviced for the benefit of the applicable Repurchasing Seller in accordance with the terms and provisions set forth in this Agreement and shall be entitled to any Special Servicing Fee, Workout Fee and/or Liquidation Fee payable to the Special Servicer under this Agreement as with respect to a Serviced Companion Loan.
(d) If (A) the Master Servicer shall pay any amount to any Repurchasing Seller pursuant to the terms hereof in the belief or expectation that a related payment has been made or will be received or collected in connection with either or both of the applicable Mortgage Notes and (B) such related payment is not received or collected by the Master Servicer, then the applicable Repurchasing Seller shall promptly on demand by the Master Servicer return such amount to the Master Servicer. If the Master Servicer determines at any time that any amount received or collected by the Master Servicer in respect of any Joint Mortgage Loans to which this Section 8.30 applies must be returned to the related Mortgagor or paid to any other person or entity pursuant to any insolvency law or otherwise, notwithstanding any other provision of this Agreement, the Master Servicer shall not be required to distribute any portion thereof to the related Repurchasing Seller, and such Repurchasing Seller shall promptly on demand by the Master Servicer repay (which obligation shall survive the termination of this Agreement) any portion thereof that the Master Servicer shall have distributed to such Repurchasing Seller, together with interest thereon at such rate, if any, as the Master Servicer may pay to the related Mortgagor or such other person or entity with respect thereto.
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(e) Subject to this Agreement (including, without limitation, the consent and consultation rights of the Controlling Class Representative and any consultation rights of the Trust Advisor), the Master Servicer or the Special Servicer, as applicable, on behalf of the holders of any of the Repurchased Notes, shall have the exclusive right and obligation to (i) administer, service and make all decisions and determinations regarding the related Joint Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as provided hereunder. Without limiting the generality of the preceding sentence, the Master Servicer or the Special Servicer, as applicable, may agree to any modification, waiver or amendment of any term of, forgive interest on and principal of, capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release of the related Mortgagor on or any guarantor of any Joint Mortgage Loan it is required to service and administer as contemplated by this Section 8.30, without the consent of the related Repurchasing Seller, subject, however, to the terms of this Agreement as they pertain to a Serviced Companion Loan.
(f) In taking or refraining from taking any action permitted hereunder, the Master Servicer and the Special Servicer shall each be subject to the same degree of care with respect to the administration and servicing of the Joint Mortgage Loans to which this Section 8.30 applies as is consistent with this Agreement; and shall be liable to any Repurchasing Seller only to the same extent as set forth herein with respect to any holder of a Serviced Companion Loan.
(g) If the Trustee, the Master Servicer or the Special Servicer has made a Servicing Advance with respect to any Repurchased Note which would otherwise be reimbursable to such advancing party under this Agreement, and such Advance is determined to be a Nonrecoverable Advance, the applicable Repurchasing Seller shall reimburse the Trust in an amount equal to such Repurchasing Seller’s Repurchased Percentage Interest of such Nonrecoverable Advance with interest thereon. Notwithstanding the foregoing, the applicable Repurchasing Seller shall not be obligated to reimburse the Trustee, the Master Servicer or the Special Servicer (and amounts due to the applicable Repurchasing Seller shall not be offset) for Advances or interest thereon or any amounts related to any Mortgage Loan or any other Joint Mortgage Loan other than such amounts relating to the applicable Repurchased Note. To the extent that the applicable Repurchasing Seller reimburses any such Nonrecoverable Advances and such amounts are subsequently recovered, the applicable Repurchasing Seller shall receive a reimbursement from such recovery based on its Repurchased Percentage Interest of such recovery. This reimbursement right shall not limit the Trustee’s, the Master Servicer’s or the Special Servicer’s rights to reimbursement under this Agreement. Notwithstanding anything to the contrary contained herein, the total liability of each Repurchasing Seller shall not exceed an amount equal to its Repurchased Percentage Interest of the amount to be reimbursed.
(h) Each Repurchasing Seller shall have the right to assign the related Repurchased Note; provided that the assignee of the related Repurchased Note shall agree in writing to be bound by the terms of this Agreement.
(i) The Master Servicer and the Special Servicer shall, in connection with their servicing and administrative duties under this Agreement, exercise efforts consistent with the Servicing Standard to execute and deliver, on behalf of each Repurchasing Seller as a holder of a pari passu interest in the applicable Joint Mortgage Loan, any and all financing statements,
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continuation statements and other documents and instruments necessary to maintain the lien created by any Mortgage or other security document related to the applicable Joint Mortgage Loan on the related Mortgaged Property and related collateral, any and all modifications, waivers, amendments or consents to or with respect to the related Joint Mortgage Loan documents, and any and all instruments of satisfaction or cancellation, or of full release or discharge, and all other comparable instruments with respect to the related Repurchased Note or related Repurchased Notes and the related Mortgaged Property all in accordance with, and subject to, the terms of this Agreement. Each Repurchasing Seller agrees to furnish, or cause to be furnished, to the Master Servicer and the Special Servicer any powers of attorney or other documents necessary or appropriate to enable the Master Servicer or the Special Servicer, as the case may be, to carry out its servicing and administrative duties under this Agreement related to the applicable Joint Mortgage Loan; provided that such Repurchasing Seller shall not be liable, and shall be indemnified by the Master Servicer or the Special Servicer, as applicable, for any negligence with respect to, or misuse of, any such power of attorney by the Master Servicer or the Special Servicer, as the case may be; and further provided that the Master Servicer or the Special Servicer, without the written consent of the applicable Repurchasing Seller, shall not initiate any action in the name of such Repurchasing Seller without indicating its representative capacity or take any action with the intent to cause and that actually causes, such Repurchasing Seller to be registered to do business in any state.
Pursuant to the related Mortgage Loan Purchase Agreement, the applicable Repurchasing Seller is required to deliver to the Master Servicer or the Special Servicer, as applicable, the Mortgage Loan documents related to the applicable Repurchased Note, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or otherwise available at law or equity with respect to the related Repurchased Note.
ARTICLE
IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer.
(a) Subject to the express provisions of this Agreement, for and on behalf of the Trust and for the benefit of the Certificateholders as a whole, and, solely as it relates to any A/B Whole Loan, for the benefit of the holder of the related Serviced B Note and, solely as it relates to any Loan Pair, for the benefit of the holder of the related Serviced Companion Loan, the Special Servicer shall service the Specially Serviced Mortgage Loans and manage the related REO Properties and, with respect to all Mortgage Loans (other than Non-Serviced Mortgage Loans and related Non-Serviced Companion Loans), Loan Pairs and A/B Whole Loans, process (and its consent shall be required for all) Major Decisions and Special Servicer Decisions (provided, that the Master Servicer and the Special Servicer may mutually agree that the Master Servicer shall process, and obtain the prior written consent of the Special Servicer with respect to, any Major Decision or Special Servicer Decision with respect to non-Specially Serviced Mortgage Loans), in all cases in accordance with the Servicing Standard and the terms of this
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Agreement. Certain of the provisions of this Article IX make explicit reference to their applicability to Mortgage Loans, any Serviced Companion Loan and any Serviced B Note; notwithstanding such explicit references, references in this Article IX to “Mortgage Loans” shall be construed, unless otherwise specified, to refer also to such Serviced B Note and such Serviced Companion Loan (but any other terms that are defined in Article I and used in this Article IX shall be construed according to such definitions without regard to this sentence).
(b) Subject to Section 5.4(e), the Special Servicer shall cooperate with the Master Servicer and provide the Master Servicer with the information reasonably requested by the Master Servicer, in writing, to the extent required to allow the Master Servicer to perform its servicing obligations with respect to the Specially Serviced Mortgage Loans hereunder. Except with respect to Major Decisions and Special Servicer Decisions, the Special Servicer’s obligations with respect to the servicing of any Specially Serviced Mortgage Loan and any related REO Properties shall terminate when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), any holder of a related Serviced B Note or Serviced Companion Loan and the Certificate Administrator within five (5) Business Days after becoming aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage Loan. Upon the receipt of such notice by the Master Servicer and the Certificate Administrator, such Mortgage Loan shall constitute a Rehabilitated Mortgage Loan and will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to a Mortgage Loan and upon the reasonable request of the Special Servicer, the Master Servicer shall mark its records for such Mortgage Loan to cause any monthly statements for amounts due thereon to be sent thereafter to the Special Servicer rather than the related Mortgagor. Upon receipt of any such monthly statement, the Special Servicer shall, within two (2) Business Days, advise the Master Servicer of any changes to be made, and return the monthly statement to the Master Servicer. The Master Servicer shall thereafter promptly send the corrected monthly statement to the Mortgagor. If a Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall resume sending the monthly statements to the Mortgagor as it did before such Mortgage Loan became a Specially Serviced Mortgage Loan.
(e) (i) All amounts collected by the Master Servicer with respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a Serviced B Note or Serviced Companion Loan) shall be deposited in the Collection Account (or applicable sub-account thereof), and (ii) all amounts collected by the Master Servicer with respect to a Specially Serviced Mortgage Loan that is a Serviced B Note or a Serviced Companion Loan shall be deposited in the related Custodial Account. The Master Servicer shall within three (3) Business Days after receipt of any such payment, notify the Special Servicer of the receipt of such payment and the amount thereof. The Special Servicer shall, within two (2) Business Days
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thereafter, instruct the Master Servicer in writing how to apply such payment (with the application of such payments to be made in accordance with the related Mortgage Loan documents (including the related Intercreditor Agreement, if any) or in accordance with this Agreement, as applicable). The Special Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all special servicing fees, liquidation fees and workout fees called for under the terms and provisions of the Mortgage Loan documents for each applicable Specially Serviced Mortgage Loan.
(f) After the occurrence of any Servicing Transfer Event with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) if it is the subject of any Environmental Insurance Policy, (i) the Special Servicer shall monitor the dates by which any claim must be made or action must be taken under such Environmental Insurance Policy to achieve the payment of all amounts thereunder to which the Trust is entitled if the Special Servicer has actual knowledge of any event giving rise to a claim under such Environmental Insurance Policy and (ii) if the Special Servicer has actual knowledge of such an event with respect to such Mortgage Loan, the Special Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of the related Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer (of if applicable, the Special Servicer) as a Servicing Advance. All extraordinary expenses (but not ordinary and routine or anticipated expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.1(f) shall be paid by the Trust.
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer. The Special Servicer, at its expense, shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Special Servicer self-insures as provided below) and be in form and amount consistent with the Servicing Standard. If any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement. So long as the long-term debt obligation or deposit account rating of the Special Servicer (or its corporate parent) is not less than “A (low)” as rated by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two other NRSROs (which may include S&P, Fitch and/or Moody’s) (or an A.M. Best equivalent)), not less than “A3” as rated by Moody’s and not less than “A-” as rated by Fitch (or an A.M. Best equivalent)), the Special Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 9.3 Special Servicer General Powers and Duties.
(a) Subject to the other terms and provisions of this Agreement (and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer), including Section 10.3, the Special
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Servicer is hereby authorized and empowered when the Special Servicer believes it appropriate in accordance with the Servicing Standard, to take any and all the actions with respect to Non-Specially Serviced Mortgage Loans (when processing Major Decisions or Special Servicer Decisions in respect thereof) and Specially Serviced Mortgage Loans, in each case that the Master Servicer may perform as set forth in Section 8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust (or holder of a Serviced B Note or Serviced Companion Loan, as applicable), any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to Non-Specially Serviced Mortgage Loans (when processing Major Decisions or Special Servicer Decisions in respect thereof) and the Specially Serviced Mortgage Loans and with respect to the related REO Properties and (ii) to effectuate foreclosure or other conversion of the ownership of any Mortgaged Property securing a Specially Serviced Mortgage Loan. The Trustee shall execute on the Closing Date a Power of Attorney in the form of Exhibit O-2 (or such other form as mutually agreed to by the Trustee and the Special Servicer) hereto and otherwise reasonably acceptable to the Trustee and Special Servicer and shall furnish the Special Servicer from time to time, upon a written request from a Special Servicing Officer, with any additional powers of attorney of the Trustee, in the form of Exhibit O-2 (or such other form as mutually agreed to by the Trustee and the Special Servicer) with such additions as may be reasonably necessary to empower the Special Servicer to take such actions as it determines to be reasonably necessary to comply with its servicing, administrative and management duties hereunder, and the Trustee shall execute and deliver or cause to be executed and delivered such other documents as a Special Servicing Officer may request in writing, that are necessary or appropriate to enable the Special Servicer to service, administer and manage the Specially Serviced Mortgage Loans and carry out its duties hereunder, in each case as the Special Servicer determines is in accordance with the Servicing Standard and the terms of this Agreement; provided, that, the Special Servicer shall not (i) take any action with the intent to cause and that actually causes the Trustee to be registered to do business in any state; and (ii) without the Trustee’s prior written consent initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Special Servicer’s representative capacity; provided, further, that the preceding clause (ii) shall not apply to the initiation of actions relating to a Mortgage Loan that the Special Servicer is servicing pursuant to its respective duties herein (in which case the Special Servicer shall give prompt prior notice to the Trustee of the initiation of such action). Upon receipt of any such advice from the Trustee, the Special Servicer shall take such action in the name of such Person or Persons, in trust for the Trust (or holder of a Serviced B Note or Serviced Companion Loan, if applicable), as shall be consistent with the Opinion of Counsel obtained by the Trustee. Such Person or Persons shall acknowledge in writing that such action is being taken by the Special Servicer in the name of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, if applicable). In the performance of its duties hereunder, the Special Servicer shall be an independent contractor and shall not, except in those instances where it is, after notice to the Trustee as provided above, taking action in the name of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, if applicable), be deemed to be the agent of the Trust (or holder of a Serviced B Note or the Serviced Companion Loan, as applicable). If the Special Servicer receives any notice of a suit, litigation or proceeding in the name of Wilmington Trust, National Association, solely in its capacity as Trustee, then the Special Servicer shall promptly forward a copy of same to the Trustee. The Special Servicer shall indemnify the Trustee for any loss, liability or reasonable expense (including attorneys’ fees) incurred by the Trustee or any director, officer,
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employee, agent or Controlling Person of it or its affiliates in connection with any negligent or intentional misuse of the foregoing powers of attorney furnished to the Special Servicer by the Trustee. Such indemnification shall survive the resignation or termination of the Special Servicer hereunder, the resignation or termination of the Trustee and the termination of this Agreement. The Special Servicer shall not have any responsibility or liability for any act or omission of the Trustee, the Custodian, the Master Servicer or the Depositor that is not attributable to the failure of the Special Servicer to perform its obligations hereunder. The Special Servicer may conclusively rely on any advice of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage Loans, managing any related REO Properties and processing Major Decisions and Special Servicer Decisions, the Special Servicer shall employ procedures consistent with the Servicing Standard. The Special Servicer shall inspect, or cause to be inspected each Mortgaged Property relating to a Specially Serviced Mortgage Loan as soon as practicable after the subject Mortgage Loan became a Specially Serviced Mortgage Loan and thereafter at least every twelve (12) months until such Mortgage Loan ceases to be a Specially Serviced Mortgage Loan. The Special Servicer shall provide to the Master Servicer (who shall provide, solely as it relates to any A/B Whole Loan, to the holder of the related Serviced B Note, and solely as it relates to any Loan Pair, to the holder of the related Serviced Companion Loan), the Certificate Administrator, the 17g-5 Information Provider and, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative copies of the Inspection Reports relating to such inspections as soon as practicable after the completion of any inspection. Any cost of any inspection performed under this Section 9.3(b) shall be an expense of the Trust and shall be treated as a Servicing Advance or as an Additional Trust Expense if such Servicing Advance would be a Nonrecoverable Advance. Notwithstanding the foregoing, the Special Servicer shall not be liable for its failure to prepare the reports required pursuant to this Section 9.3(b) with respect to any Specially Serviced Mortgage Loan or REO Property if such failure is caused by the Master Servicer’s failure to perform its obligations or provide information to the Special Servicer as required by this Agreement.
(c) Pursuant to the related Intercreditor Agreement, each owner of a Serviced Companion Loan has agreed that the Master Servicer and the Special Servicer are authorized and obligated to service and administer such Serviced Companion Loan pursuant to this Agreement.
(d) Pursuant to the applicable Non-Serviced Mortgage Loan Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed that such owner’s rights in, to and under such Non-Serviced Mortgage Loan are subject to the servicing and all other rights of the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to service and administer such Non-Serviced Mortgage Loan pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Special Servicer’s obligations and responsibilities hereunder and the Special Servicer’s authority with respect to any Non-Serviced Mortgage Loan are limited by and subject to the terms of the applicable Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage Loan
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Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer with respect thereto under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Special Servicer shall take such actions as it shall deem reasonably necessary to facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer including, but not limited to, delivering appropriate Requests for Release to the Trustee and Custodian (if any) in order to deliver any portion of the related Mortgage File to the applicable Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, with respect to the Non-Serviced Mortgage Loans, (i) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall be entitled to the rights of the “Non-Directing Holder” (or similar term) under the related Intercreditor Agreement and (ii) at no time shall the Trust Advisor be entitled to the rights of the “Non-Directing Holder” (or similar term) under the related Intercreditor Agreement.
Section 9.4 Sub-Servicers. The Special Servicer shall have the right to use a Sub-Servicer on the same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer of the Master Servicer, except as set forth in this Section 9.4. The Special Servicer shall notify the Master Servicer, Trustee, Custodian and solely as it relates to any A/B Whole Loan, the holder of the related Serviced B Note, and solely as it relates to any Loan Pair, the holder of the related Serviced Companion Loan, of the appointment of any Sub-Servicer of the Special Servicer. The Special Servicer shall be solely responsible for the payment of compensation to any Sub-Servicer appointed by it. The Special Servicer shall not enter into future sub-servicing contracts unless it has provided to each Rating Agency a Rating Agency Communication with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, (i) the Special Servicer shall not enter into any sub-servicing agreement with respect to any Mortgage Loan that provides for the performance by third parties of any or all of its obligations hereunder, without the consent of the Applicable Control Party (which consent shall not be unreasonably delayed or withheld), except to the extent necessary for the Special Servicer to comply with applicable regulatory requirements, (ii) no sub-servicer shall be permitted under any sub-servicing agreement to make material servicing decisions, such as loan modifications or determinations as to the manner or timing of enforcing remedies under the Mortgage Loan documents, without the consent of the Special Servicer and (iii) after the Closing Date, if and for so long as the Trust or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, are subject to the reporting requirements of the Exchange Act, the Special Servicer, shall not enter into a sub-servicing agreement with any Prohibited Party.
Section 9.5 “Due-on-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; Due-on-Encumbrance Clauses. Subject to Section 10.3, the terms and conditions of any related Intercreditor Agreement (in the case of any A/B Whole Loan or Loan Pair) and the limitations of Section 12.3, the Special Servicer shall have the following duties and rights:
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(a) If any Specially Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or may at the Mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or ownership interest in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not be assumed, or ownership interests in the related Mortgagor may not be transferred, without the consent of the related Mortgagee in connection with any such sale or other transfer;
then, the Special Servicer, on behalf of the Trust, shall, subject to Section 10.3 and, in the case of any A/B Whole Loan or Loan Pair, the related Intercreditor Agreement, and in accordance with the Servicing Standard and the REMIC Provisions, take such actions as it deems to be in the best economic interest of the Trust in accordance with the Servicing Standard, and may waive or enforce any due-on-sale clause contained in the related Mortgage Note or Mortgage; provided, that the Special Servicer provides each Rating Agency with a Rating Agency Communication prior to waiving the effect of such provision. In connection with each such Rating Agency Communication, the Special Servicer shall prepare and, subject to Section 5.7, deliver to the Rating Agencies a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation. As to any Non-Specially Serviced Mortgage Loan that contains a provision in the nature of a “due-on-sale” clause, the Special Servicer shall have the rights and duties set forth in Section 8.7.
In connection with the waiver of any due-on-sale clause under a Specially Serviced Mortgage Loan in accordance with this Section 9.5(a), the Special Servicer is authorized to take or enter into an assignment and assumption agreement from or with the Person to whom such property has been or is about to be conveyed, and/or to release the original Mortgagor from liability upon the Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon; provided that, except as otherwise permitted by Section 9.5(c), any such assignment and assumption or substitution agreement shall contain no terms that could result in an Adverse REMIC Event. To the extent permitted by law, the Special Servicer shall enter into an assumption or substitution agreement that is required under the related Mortgage Loan documents (either as a matter of right or upon satisfaction of specified conditions) and shall otherwise enter into any assumption or substitution agreement only if the credit status of the prospective new mortgagor and the underwriting of the new mortgagor is in compliance with the Special Servicer’s regular commercial mortgage origination or servicing standards and criteria. The Special Servicer shall notify the Master Servicer of any such assignment and assumption or substitution agreement and the Special Servicer shall forward to the Custodian (on the Trustee’s behalf) the original of such agreement (and to the Master Servicer, a copy thereof), which original shall be added by the Custodian (on the Trustee’s behalf) to the related Mortgage File and shall, for all purposes, be considered a part of such Mortgage File to the same extent as all other documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent to the creation of any lien on a Mortgaged Property that is senior to, or on a parity with, the lien of the related Mortgage unless
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it is consistent with the Servicing Standard and the REMIC Provisions and the Special Servicer has received the consent of the Applicable Control Party. Nothing in this Section 9.5 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assignment and assumption of a Specially Serviced Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any lien or other encumbrance with respect to such Mortgaged Property.
(c) Subject to the Servicing Standard, the rights and duties of the Master Servicer under Section 8.18 and any rights of the Controlling Class Representative set forth in Section 10.3, the Special Servicer may enter into any modification, waiver or amendment (including, without limitation, the substitution or release of collateral or the pledge of additional collateral) of the terms of any Specially Serviced Mortgage Loan, including any modification, waiver or amendment to (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled Payment on any Specially Serviced Mortgage Loan, including by way of a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage Loan during any period during which voluntary Principal Prepayments are prohibited, provided, in the case of any such modification, waiver or amendment, that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer, such default is reasonably foreseeable, (B) in the reasonable judgment of the Special Servicer, such modification, waiver or amendment would result in a recovery to Certificateholders, the holder of the related Serviced Companion Loan and the holder of any related Serviced B Note (as a collective whole) on a net present value basis (calculated in accordance with Section 1.2(e)) that would be equal to or greater than the recovery that would result if the applicable Specially Serviced Mortgage Loan were liquidated, as set forth in writing delivered by the Special Servicer to the Trustee and the Certificate Administrator, (C) such modification, waiver or amendment would not cause an Adverse REMIC Event or Adverse Grantor Trust Event (including with respect to any securities evidencing interests in any A Note or any B Note) to occur, and (D) if notice to, receipt of consent, approval or direction from, or consultation with the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, is required in connection with such modification, waiver or amendment pursuant to Section 10.3 or any applicable Intercreditor Agreement, then the Special Servicer has made such notice, obtained (or been deemed to have obtained) such consent, approval or direction or completed such consultation, as the case may be. The Special Servicer, with respect to any Serviced B Note and any Serviced Companion Loan that is a Specially Serviced Mortgage Loan, shall notify the holder of the Serviced B Note and the Serviced Companion Loan, as applicable, of any modification of the monthly payments of an A/B Whole Loan or a Loan Pair, as the case may be, and such monthly payments shall be allocated in accordance with the related Intercreditor Agreement.
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In no event, however, shall the Special Servicer (i) extend the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is five (5) years prior to the Rated Final Distribution Date or (ii) if the Specially Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of such Specially Serviced Mortgage Loan unless the Special Servicer gives due consideration to the remaining term of such ground lease. The Special Servicer shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged Property covered by a group secured creditor impaired property environmental insurance policy for more than five (5) years beyond such Mortgage Loan’s Maturity Date unless a new Phase I Environmental Report indicates that there is no environmental condition or the Mortgagor obtains, at its expense, an extension of such policy on the same material terms and conditions to cover the period through five (5) years past the extended Maturity Date, provided that, if such Mortgage Loan is secured by a ground lease, the Special Servicer shall give due consideration to the remaining term of the ground lease.
The determination of the Special Servicer contemplated by clause (B) of the proviso to the first (1st) paragraph of this Section 9.5(c) shall be evidenced by an Officer’s Certificate certifying the information in the proviso to the first (1st) paragraph under this subsection (c).
(d) If the Special Servicer intends to permit a Mortgagor to substitute collateral for all or any portion of a Mortgaged Property pursuant to Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust, the holder of any Serviced Companion Loan or the holder of any Serviced B Note in such collateral would be perfected by possession, or if such collateral requires special care or protection, then prior to agreeing to such substitution or addition of collateral, the Special Servicer shall make arrangements for such possession, care or protection, and prior to agreeing to such substitution or addition of collateral (or such arrangement for possession, care or protection) shall obtain the prior written consent of the Trustee with respect thereto (which consent shall not be unreasonably withheld, delayed or conditioned); provided, that the Trustee shall not be required (but has the option) to consent to any substitution or addition of collateral or to hold any such collateral which will require the Trustee to undertake any additional duties or obligations or incur any additional expense. The Special Servicer shall provide each Rating Agency with a Rating Agency Communication in connection with any consent to the substitution of collateral for any portion of the Mortgaged Property pursuant to Section 9.5(c).
(e) The Special Servicer shall promptly deliver to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Trustee, the Custodian, the Certificate Administrator and, subject to Section 5.7, the Rating Agencies (and, solely with respect to an A/B Whole Loan, the holder of the related Serviced B Note and solely with respect to a Loan Pair, the holder of the related Serviced Companion Loan) a notice, specifying any assignments and assumptions, modifications, waivers or amendments executed pursuant to this Section 9.5, such notice identifying the affected Specially Serviced Mortgage Loan. Such notice shall set forth the reasons for such waiver, modification, or amendment (including, but not limited to, information such as related income and expense statements, rent rolls, occupancy status, property inspections, and an internal or external appraisal performed in accordance with MAI standards and methodologies (and, if done
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externally, the cost of such appraisal shall be recoverable as a Servicing Advance subject to the provisions of Section 4.4 hereof)). The Special Servicer shall also deliver to the Custodian (on the Trustee’s behalf), for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment promptly following the execution thereof (with a copy thereof to the Master Servicer).
(f) The Special Servicer may require, in its discretion (unless prohibited or otherwise provided in the related Mortgage Loan documents), as a condition to granting any request by a Mortgagor for any consent, modification, waiver or amendment, that such Mortgagor pay a reasonable and customary modification fee to the extent permitted by law. No fee described in this Section shall be collected by the Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of the Mortgage Loan if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing, the Special Servicer shall use its reasonable efforts, in accordance with the Servicing Standard, to collect any modification fees and other expenses connected with a permitted modification of a Mortgage Loan from the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a proposed modification shall not impair the right of the Special Servicer, the Master Servicer, the Custodian or the Trustee to be reimbursed by the Trust for such expenses (including any cost and expense associated with any Opinion of Counsel).
(g) The Special Servicer shall cooperate with the Master Servicer (to the extent required by, and as provided in, Section 8.7) in connection with assignments and assumptions of any Non-Specially Serviced Mortgage Loan. As to any Non-Specially Serviced Mortgage Loan that contains a provision in the nature of a “due-on-encumbrance” clause, the Special Servicer shall have the rights and duties set forth in Section 8.7.
(h) If any Specially Serviced Mortgage Loan which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or a lien on an ownership interest in the Mortgagor,
then, for so long as such Specially Serviced Mortgage Loan is included in the Trust, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise (or, subject to Section 10.3 and, in the case of any A/B Whole Loan or the related Loan Pair, the related Intercreditor Agreement, waive its right to exercise) any right it may have with respect to such Specially Serviced Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to the creation of any such additional lien or other encumbrance, in a manner consistent with the Servicing Standard. Prior to waiving the effect of such provision with respect to such
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Specially Serviced Mortgage Loan, the Special Servicer shall provide each Rating Agency with a Rating Agency Communication regarding such waiver.
Section 9.6 Custodian to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification that payment in full will be escrowed in a manner customary for such purposes, or the complete defeasance of a Mortgage Loan, the Special Servicer will immediately notify the Master Servicer. The Special Servicer shall determine, in accordance with the Servicing Standard, whether an instrument of satisfaction shall be delivered and, if the Special Servicer determines that such instrument should be delivered, the Special Servicer shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or foreclosure of any Specially Serviced Mortgage Loan or the management of the related REO Property and in accordance with the Servicing Standard, the Trustee shall execute or cause to be executed such documents as shall be prepared and furnished to the Trustee by a Special Servicing Officer (in form reasonably acceptable to the Trustee) and as are necessary for such purposes. The Custodian (on the Trustee’s behalf) shall, upon request of the Special Servicer and delivery to the Trustee and Custodian of a request for release signed by a Special Servicing Officer substantially in the form of Exhibit C, release the related Mortgage File to the Special Servicer.
(c) The Special Servicer shall, with respect to any Rehabilitated Mortgage Loan, deliver to the Master Servicer copies of all documents and instruments in the possession of the Special Servicer related to such Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the Servicing Standard, the Special Servicer shall notify, in writing, the Mortgagor under such Rehabilitated Mortgage Loan of such transfer.
(d) With respect to any Non-Serviced Loan Combination, if pursuant to the related Intercreditor Agreement and the Other Companion Loan Pooling and Servicing Agreement, and as appropriate for enforcing the terms of such Non-Serviced Loan Combination, the related Other Master Servicer or Other Special Servicer requests delivery to it of the original Mortgage Note, then the Custodian shall release or cause the release of such original Mortgage Note to such party or its designee and shall retain a copy thereof, subject to the execution of an agreement by such party to safeguard such original Mortgage Note and to return such original Mortgage Note promptly when no longer required by such party for such purpose.
(e) With respect to any Loan Pair, if pursuant to the related Intercreditor Agreement, and as appropriate for enforcing the terms of such Loan Pair, the Special Servicer requests from the related Other Custodian delivery to it of the original mortgage note evidencing the related Serviced Companion Loan, the Special Servicer shall agree to safeguard such original mortgage note and to return such original mortgage note promptly when no longer required by it for such purpose.
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Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee.
(a) The Special Servicer shall transmit to the Custodian (on the Trustee’s behalf) such documents and instruments coming into the possession of the Special Servicer as from time to time are required by the terms hereof to be delivered to the Custodian (on the Trustee’s behalf). Any funds received by the Special Servicer in respect of any Specially Serviced Mortgage Loan or any REO Property or which otherwise are collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any REO Property shall be transmitted to the Master Servicer within one (1) Business Day of receipt of properly identified funds for deposit into the Collection Account (provided, that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Special Servicer shall use commercially reasonable efforts to remit such amounts to the Master Servicer within one (1) Business Day of receipt of such amounts but, in any event, the Special Servicer shall remit such amounts to the Master Servicer within two (2) Business Days of receipt of such amounts), except that if such amounts relate to REO Income, they shall be deposited in the REO Account. Subject to the confidentiality provisions and restrictions on release of Privileged Information contained in this Agreement, the Special Servicer shall provide access to information and documentation regarding the Specially Serviced Mortgage Loans to the Trustee, the Custodian, the Master Servicer, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), and their respective agents and accountants at any time upon reasonable written request and during normal business hours, provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder; provided, further, that the Trustee, the Certificate Administrator and the Custodian shall be entitled to receive from the Special Servicer all such information in the Special Servicer’s possession as the Trustee, the Certificate Administrator and the Custodian shall reasonably require to perform their respective duties hereunder. In fulfilling such a request, the Special Servicer shall not be responsible for determining whether such information is sufficient for the Trustee’s, the Custodian’s, the Master Servicer’s, the Certificate Administrator’s, the Controlling Class Representative’s or the Trust Advisor’s purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or the holder of any related Serviced B Note (if not included in the Trust) and/or related Serviced Companion Loan, if an A/B Whole Loan or Loan Pair is involved) owns the Specially Serviced Mortgage Loans and all Mortgage Files representing such Specially Serviced Mortgage Loans and all funds now or hereafter held by, or under the control of, the Special Servicer that are collected by the Special Servicer in connection with the Specially Serviced Mortgage Loans (but excluding any Special Servicer Compensation and all other amounts to which the Special Servicer is entitled hereunder); and the Special Servicer agrees that all documents or instruments constituting part of the Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans which come into the possession or custody of, or which are subject to the control of, the Special Servicer, shall be held by the Special Servicer for and on behalf of the
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Trust (and/or the holder of the related Serviced B Note (if not included in the Trust) and/or related Serviced Companion Loan, if an A/B Whole Loan or Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create, incur or subject any Specially Serviced Mortgage Loans, or any funds that are required to be deposited in any REO Account to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, nor assert by legal action or otherwise any claim or right of setoff against any Specially Serviced Mortgage Loan or any funds, collected on, or in connection with, a Specially Serviced Mortgage Loan.
Section 9.8 Representations, Warranties and Covenants of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to and covenants with each other party to this Agreement, as of the Closing Date:
(i) (A) with respect to LNR Partners, LLC, the Special Servicer is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of Florida, and shall be and thereafter remain in compliance with the laws of each State in which any Mortgaged Property (including any REO Property) which is, or is related to, a Specially Serviced Mortgage Loan is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Special Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement; and (B) with respect to Wells Fargo Bank, National Association, as Excluded Mortgage Loan Special Servicer, the Excluded Mortgage Loan Special Servicer is duly organized, validly existing and in good standing as a national banking association under the laws of the United States of America, and shall be and thereafter remain in compliance with the laws of each State in which any Mortgaged Property which is, or is related to, a Specially Serviced Mortgage Loan that is an Excluded Mortgage Loan is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Excluded Mortgage Loan Special Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement. The Special Servicer has duly and validly authorized the execution, delivery and performance by it of this Agreement and this Agreement has been duly executed and delivered by the Special Servicer; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties to this Agreement, evidences the valid and binding obligation of the Special Servicer enforceable against the Special Servicer in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, receivership and other similar laws affecting creditors’ rights generally (and, to the extent applicable, the rights of creditors of national banks) as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
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(iii) the execution and delivery of this Agreement by the Special Servicer, the consummation by the Special Servicer of the transactions contemplated hereby, and the fulfillment of or compliance by the Special Servicer with the terms and conditions of this Agreement will not (1) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, in any manner that materially and adversely affects its ability to perform its obligations under this Agreement or (2) result in a breach of any term or provision of its organizational documents;
(iv) no litigation is pending or, to the best of the Special Servicer’s knowledge, threatened, against it, the outcome of which, in the Special Servicer’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to service the Specially Serviced Mortgage Loans it is required to service hereunder or to perform any of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified to do business or licensed in one or more states does not materially and adversely affect the performance by it of its obligations hereunder; and
(vi) the Special Servicer possesses all licenses, permits and other authorizations necessary to perform its duties hereunder in each state, except to the extent that being licensed or having permits or other authorization in one or more states is not necessary for the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Special Servicer by any of the Depositor, the Trustee, the Custodian, the Master Servicer, the Certificate Administrator or the Trust Advisor.
Section 9.9 Standard Hazard, Flood and Commercial General Liability Policies.
(a) For all REO Properties (other than REO Properties relating to Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts, consistent with the Servicing Standard, to maintain with a Qualified Insurer (A) a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage Loan documents and the related Mortgage so require,
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contains no exclusion as to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002) which does not provide for reduction due to depreciation in an amount which is not less than the full replacement cost of the improvements of such REO Property or in an amount not less than the Unpaid Principal Balance plus all unpaid interest and the cumulative amount of Servicing Advances (plus Advance Interest) made with respect to such Mortgage Loan, any related Serviced B Note and Serviced Companion Loan, whichever is less, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (B) any other insurance coverage for such REO Property that the related Mortgagor was required to maintain for the related Mortgaged Property under the related Mortgage, subject, as to earthquake insurance, to the second (2nd) sentence following this sentence. If the improvements to the Mortgaged Property are in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and flood insurance has been made available), the Special Servicer shall maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage equal to the lesser of the then Unpaid Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum insurance coverage required under such current guidelines. It is understood and agreed that the Special Servicer has no obligation to obtain earthquake or other additional insurance on REO Property, except as required by law but at its sole option and at the Trust’s expense, it (if required at origination and is available at commercially reasonable rates) may obtain such earthquake insurance. The Special Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to obtain a commercial general liability policy for all REO Properties (other than any REO Property relating to any Non-Serviced Mortgage Loan). The Special Servicer shall, to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard) and to the extent consistent with the Servicing Standard, use its reasonable efforts to maintain a Rent Loss Policy covering revenues for a period of at least twelve months and a commercial general liability policy with coverage comparable to prudent lending requirements in an amount not less than $1 million per occurrence. All applicable policies required to be maintained by the Special Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee and be endorsed with a standard mortgagee clause. The costs of such insurance shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance policies maintained pursuant to this Section 9.9 (other than amounts to be applied to the restoration or repair of the REO Property) shall be deposited into the applicable REO Account for further distribution to the Master Servicer pursuant to Section 9.10. Any cost incurred in maintaining the insurance required hereby for any REO Property (other than any REO Property relating to any Non-Serviced Mortgage Loan) shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be required in any event to maintain or obtain any insurance coverage beyond what is available at commercially reasonable rates or that is not of the type previously required by the Mortgage Loan documents; provided that, subject to Section 10.3, and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall maintain insurance against property damages resulting from terrorism or similar acts if the terms of the related Mortgage Loan documents so require
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unless the Special Servicer determines that the failure to maintain such insurance would have been an Acceptable Insurance Default under the related Mortgage Loan.
(d) The Special Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 9.9 either (i) if the Special Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all of the applicable Mortgage Loans, any Serviced Companion Loan and any Serviced B Note serviced by it, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is obtained from a Qualified Insurer or (ii) if the Special Servicer (or its corporate parent), for so long as the rating of such Person’s long-term debt obligations or long-term deposit accounts are not less than “A(low)” as rated by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two other NRSROs (which may include S&P, Fitch and/or Moody’s) (or an A.M. Best equivalent)), not less than “A3” as rated by Moody’s and not less than “A” as rated by Fitch, self-insures for its obligations as set forth in this Section 9.9. If the Special Servicer shall cause any Mortgage Loan, Serviced Companion Loan and Serviced B Note to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such Mortgage Loan, Serviced Companion Loan and Serviced B Note (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Loan is then covered thereby), if not borne by the related Mortgagor, shall be paid by the Special Servicer, at its option, or by the Master Servicer, in either case as a Servicing Advance, subject to the provisions of Section 4.4 hereof. If such policy contains a deductible clause, the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property a policy complying with this Section 9.9 and there shall have been a loss that would have been covered by such policy, deposit in the Collection Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan, A/B Whole Loan or Loan Pair or (ii) if there is no deductible limitation required under the Mortgage Loan, A/B Whole Loan or Loan Pair, the deductible amount with respect to insurance policies generally available on properties similar to the related Mortgaged Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount. In connection with its activities as administrator and servicer of the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note, the Special Servicer agrees to present, on its behalf and on behalf of the Trustee, claims under any such master force placed or blanket insurance policy.
Section 9.10 Presentment of Claims and Collection of Proceeds. The Special Servicer will prepare and present or cause to be prepared and presented on behalf of the Trustee all claims under the Insurance Policies with respect to REO Property (other than any REO Property relating to any Non-Serviced Mortgage Loan), and take such actions (including the negotiation, settlement, compromise or enforcement of the insured’s claim) as shall be necessary to recover under such policies. Any proceeds disbursed to the Special Servicer in respect of such policies shall be promptly remitted to the Master Servicer for deposit into the Collection Account, upon receipt of properly identified funds, except for any amounts realized that are to be applied to the repair or restoration of the applicable REO Property in accordance with the Servicing Standard. Any extraordinary expenses (but not ordinary and routine or anticipated
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expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.10 shall be paid by the Trust.
Section 9.11 Compensation to the Special Servicer.
(a) As compensation for its activities hereunder, the Special Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and (iii) the Workout Fee. Such amounts, if any, collected by the Special Servicer from the related Mortgagor shall be transferred by the Special Servicer to the Master Servicer within one (1) Business Day of receipt thereof (provided, that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern time) on any given Business Day, the Special Servicer shall use commercially reasonable efforts to remit such amounts to the Master Servicer within one (1) Business Day of receipt of such amounts but, in any event, the Special Servicer shall remit such amounts to the Master Servicer within two (2) Business Days of receipt of such amounts), and deposited by the Master Servicer in the Collection Account. The Special Servicer shall be entitled to receive a Liquidation Fee from the Liquidation Proceeds received in connection with a Specially Serviced Mortgage Loan or REO Property. With respect to each REO Mortgage Loan that is a successor to a Mortgage Loan secured by two or more Mortgaged Properties, the reference to “REO Property” in the preceding sentence shall be construed on a property-by-property basis to refer separately to the acquired real property that is a successor to each of such Mortgaged Properties, thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation Proceeds received in connection with a final disposition of, and Condemnation Proceeds received in connection with, each such acquired property as the Liquidation Proceeds related to that property are received. The Special Servicer shall also be entitled to additional special servicing compensation of an amount equal to the excess, if any, of the aggregate Prepayment Interest Excess relating to Specially Serviced Mortgage Loans that have, during any Collection Period, been the subject of voluntary Principal Prepayments not from Liquidation Proceeds or from modifications of Specially Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment Interest Shortfalls incurred with respect to such Specially Serviced Mortgage Loans during the same Collection Period. If the Special Servicer is terminated or resigns, the Special Servicer shall retain the right (and the applicable successor Special Servicer shall not have the right) to receive (until the related Mortgage Loan becomes a Specially Serviced Mortgage Loan or until the related Mortgaged Property becomes an REO Property) any and all Workout Fees payable in respect of (i) any Specially Serviced Mortgage Loans serviced by the Special Servicer that became Rehabilitated Mortgage Loans during the period that it acted as Special Servicer and that were still Rehabilitated Mortgage Loans at the time of such termination or resignation and (ii) any Specially Serviced Mortgage Loans for which the Special Servicer has resolved the circumstances and/or conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage Loan such that the Mortgage Loan would be deemed a Rehabilitated Mortgage Loan but for the related Mortgagor having not yet made, as of the date of such termination or resignation, three (3) timely Scheduled Payments required by the terms of the workout; provided that in either case no other event has occurred as of the time of the Special Servicer’s termination or resignation that would otherwise cause such Mortgage Loan to again become a Specially Serviced Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master Servicer to withdraw (i) from the Collection Account, the Special Servicer Compensation in respect of each
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Mortgage Loan (but not a Serviced B Note) and (ii) from any Custodial Account, the Special Servicer Compensation to the extent related solely to the related Serviced Companion Loan and/or Serviced B Note, as applicable, in each case in the time and manner set forth in Section 5.2 of this Agreement. The Special Servicer shall be required to pay all expenses incurred by it in connection with its servicing activities hereunder and shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.
(c) Notwithstanding anything herein to the contrary (and, in the case of any A/B Whole Loan, Loan Pair or Non-Serviced Loan Combination, subject to any provisions of the applicable Intercreditor Agreement relating to the allocation of the amounts set forth below), the Special Servicer shall be entitled to receive the following items as additional special servicing compensation:
(i) (x) 100% of Unallocable Modification Fees actually collected during the related Collection Period with respect to any Specially Serviced Mortgage Loans or REO Mortgage Loans (other than any REO Mortgage Loan that was a Non-Serviced Mortgage Loan); and (y) 50% of Unallocable Modification Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that (A) is processed by the Special Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(ii) After application as set forth in Section 5.2(b) hereof, (x) 100% of Allocable Modification Fees (that constitute Excess Modification Fees) actually collected during the related Collection Period with respect to any Specially Serviced Mortgage Loans or REO Mortgage Loans (other than any REO Mortgage Loan that was a Non-Serviced Mortgage Loan); and (y) 50% of Allocable Modification Fees (that constitute Excess Modification Fees) collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that (A) is processed by the Special Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(iii) 100% of Assumption Fees collected during the related Collection Period with respect to Specially Serviced Mortgage Loans, and 50% of Assumption Fees collected during the related Collection Period with respect to Non-Specially Serviced Mortgage Loans in connection with a consent, approval or other action that (A) is processed by the Special Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(iv) 100% of assumption application fees collected during the related Collection Period with respect to Specially Serviced Mortgage Loans;
(v) 100% of Consent Fees on Specially Serviced Mortgage Loans in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents, and 50% of Consent Fees on Non-
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Specially Serviced Mortgage Loans in connection with a consent that involves no modification, assumption, extension, waiver or amendment of the terms of any Mortgage Loan documents and is paid in connection with a consent that (A) is processed by the Special Servicer or (B) the Master Servicer is not permitted to take in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under the other provisions of this Agreement;
(vi) 100% of charges for beneficiary statements or demands actually paid by the Mortgagors under the Specially Serviced Mortgage Loans;
(vii) (a) 50% of other loan processing fees actually paid by the Mortgagors under the Non-Specially Serviced Mortgage Loans to the extent that the consent of the Special Servicer is required in connection with the associated action or such action is processed by the Special Servicer, and (b) 100% of other loan processing fees actually paid by the Mortgagors under the Specially Serviced Mortgage Loans;
(viii) Interest or other income earned during any Collection Period on deposits in any REO Account maintained by the Special Servicer, in accordance with Section 9.14 (net of investment losses with respect to such REO Account for such Collection Period); and
(ix) After application as set forth in Section 5.2(b), any Excess Penalty Charges earned on the Specially Serviced Mortgage Loans.
(d) The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Borrower, any Manager, any guarantor or indemnitor in respect of a Mortgage Loan, Loan Pair or A/B Whole Loan and any purchaser of any Mortgage Loan, Loan Pair, A/B Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (or Loan Pair or A/B Whole Loan, if applicable), the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Agreement; provided, that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees.
(e) If the TKG 3 Retail Portfolio Loan Pair becomes a Specially Serviced Mortgage Loan prior to the TKG 3 Retail Portfolio Companion Loan Securitization Date, the Special Servicer shall service and administer the TKG 3 Retail Portfolio Loan Pair and any related REO Property in the same manner as any other Specially Serviced Mortgage Loan or REO Property and shall be entitled to all rights and Special Servicer Compensation earned with respect to the TKG 3 Retail Portfolio Loan Pair as special servicer of such Loan Pair. Prior to the TKG 3 Retail Portfolio Companion Loan Securitization Date, no other special servicer shall be entitled to any such compensation or have such rights and obligations. If the TKG 3 Retail Portfolio Loan Pair is still a Specially Serviced Mortgage Loan on the TKG 3 Retail Portfolio Companion Loan Securitization Date, the Other Special Servicer and the Special Servicer shall be entitled to compensation with respect to the TKG 3 Retail Portfolio Loan Pair as if the Special
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Servicer were being terminated as Special Servicer and the Other Special Servicer were replacing, and acting successor to, the Special Servicer.
Section 9.12 Realization Upon Defaulted Loans.
(a) The Special Servicer, in accordance with the Servicing Standard and subject to Section 9.3(a), Section 9.12(b), Section 9.12(c), Section 9.12(e), Section 9.17 and Section 10.3 and the terms and conditions of any related Intercreditor Agreement, shall use its reasonable efforts to foreclose upon, repossess or otherwise comparably convert the ownership of Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default and as to which no satisfactory arrangements can be made for collection of delinquent payments of such Specially Serviced Mortgage Loan, the sale of such Specially Serviced Mortgage Loan in accordance with this Agreement or the modification of such Specially Serviced Mortgage Loan in accordance with this Agreement. In connection with such foreclosure or other conversion of ownership, the Special Servicer shall follow the Servicing Standard. The foregoing is subject to the proviso that the Special Servicer shall not request that the Master Servicer make a Servicing Advance for Liquidation Expenses that would be a Nonrecoverable Advance unless the Special Servicer determines that such Servicing Advance is in the best interest of the Certificateholders (and in the case of any A/B Whole Loan, the holder of the related Serviced B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole).
(b) The Special Servicer shall not acquire any personal property relating to any Specially Serviced Mortgage Loan pursuant hereto unless:
(i) such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer;
(ii) such personal property is the capital stock of a settlor and both (A) the Special Servicer takes such action as may be necessary in order to treat the settlor as an entity that is disregarded as an entity separate from a REMIC Pool under Treasury Regulation Section 301.7701-3 (including by filing an election under such regulation and by creating a wholly-owned LLC of the REMIC for the purpose of acquiring part of such capital stock) and (B) the property owned by such settlor at the time the capital stock is acquired consists solely of “foreclosure property” under the REMIC Provisions; or
(iii) the Special Servicer shall have received a Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust) to the effect that the holding of such personal property by any REMIC Pool will not cause the imposition of a tax on any REMIC Pool under the Code or cause any REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and shall not otherwise acquire possession of, or take any other action with respect to, any Mortgaged Property, if, as a result of any such action the Trust, or any trust that holds a Serviced B Note or Serviced Companion Loan would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged
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Property within the meaning of CERCLA, or any applicable comparable federal, state or local law, or a “discharger” or “responsible party” thereunder, unless, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer has also previously determined in accordance with the Servicing Standard, based on a Phase I Environmental Report prepared by a Person (who may be an employee or affiliate of the Master Servicer or the Special Servicer) who regularly conducts environmental site assessments in accordance with the standards of Fannie Mae in the case of multi-family mortgage loans and customary servicing practices in the case of commercial loans for environmental assessments, which report shall be delivered to the Trustee, the Custodian, the Certificate Administrator and the 17g-5 Information Provider, that:
(i) such Mortgaged Property is in compliance with applicable Environmental Laws or, if not, after consultation with an environmental expert, that taking such actions as are necessary to bring the Mortgaged Property in compliance therewith is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged Property in compliance with applicable Environmental Laws is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened at such Mortgaged Property relating to the use, management, disposal or release of any hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials for which investigation, testing, monitoring, removal, clean-up or remediation could be required under any federal, state or local law or regulation, or that, if any such materials are present for which such action could be required, after consultation with an environmental expert, that taking such actions with respect to the affected Mortgaged Property is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than not taking such actions (after taking into account the projected costs of such actions);
provided that such compliance pursuant to clause (i) and (ii) above or the taking of such action pursuant to this clause (iii) shall only be required to the extent that the cost thereof is a Servicing Advance of the Master Servicer or the Special Servicer pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by Section 9.12(c) may be treated as a Liquidation Expense, or in the event the related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall treat such cost as a Servicing Advance subject to the provisions of Section 4.4 hereof; provided that, in the latter event, the Special Servicer shall use its good faith reasonable business efforts to recover such cost from the Mortgagor in connection with the curing of the default under the Specially Serviced Mortgage Loan.
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(e) If the Special Servicer determines, pursuant to Section 9.12(c), and subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, that taking such actions as are necessary to bring any Mortgaged Property into compliance with applicable Environmental Laws, or taking such actions with respect to the containment, removal, clean-up or remediation of hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials affecting any such Mortgaged Property, is not reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than not taking such actions (after taking into account the projected costs of such actions) or than not pursuing a claim under the Environmental Insurance Policy, then the Special Servicer shall take such action as it deems to be in the best economic interest of the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair, taken as a collective whole), including, without limitation, releasing the lien of the related Mortgage, and the Special Servicer shall provide written notice of such circumstances to the Trustee, the Certificate Administrator (who shall promptly post such written notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such written notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7). In connection with the foregoing, if the Special Servicer determines that a material possibility exists that Liquidation Expenses with respect to Mortgaged Property (taking into account the cost of bringing it into compliance with applicable Environmental Laws) would exceed the Unpaid Principal Balance of the related Specially Serviced Mortgage Loan, the Special Servicer shall provide written notice of such circumstances to the Trustee, the Certificate Administrator (who shall promptly post such written notice on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post such written notice on the 17g-5 Information Provider’s Website pursuant to Section 5.7). The Special Servicer shall have no liability in connection with a release of lien as contemplated in this paragraph so long as it has acted in accordance with the Servicing Standard and the provisions of this paragraph.
(f) Subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, the Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of maintaining any action with respect to any Specially Serviced Mortgage Loan, including, without limitation, any action to obtain a deficiency judgment with respect to any Specially Serviced Mortgage Loan.
Section 9.13 Foreclosure. If the Trust obtains, through foreclosure on a Mortgage or otherwise, the right to receive title to a Mortgaged Property (other than any Mortgaged Property relating to any Non-Serviced Mortgage Loan), the Special Servicer, as its agent, shall direct the appropriate party to deliver title to the related REO Property to the Trustee or its nominee (which may be a special purpose entity owned by the Trust).
The Special Servicer may consult with counsel to determine when an Acquisition Date shall be deemed to occur under the REMIC Provisions with respect to the Mortgaged Property, the expense of such consultation being treated as a Servicing Advance related to the foreclosure, subject to the provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair), shall sell such REO Property expeditiously, but in any event within the time period, and subject
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to the conditions, set forth in Section 9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve, protect and operate such REO Property for the holders of beneficial interests in the Trust (and the holder of the related Serviced B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) solely for the purpose of its prompt disposition and sale.
In connection with causing the Trust to foreclose on collateral that consists of multiple properties held for sale to customers by the Mortgagor (such as unsold condominium units in a single project), the Special Servicer shall consider the effect of the bidding price for the properties on the tax basis of such properties if such properties are likely to be treated in the hands of the Trust as properties held for sale to customers.
Section 9.14 Operation of REO Property.
(a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holders of any related Serviced B Note or Serviced Companion Loan, as applicable, with respect to any A/B Whole Loan or Loan Pair) in the name of LNR Partners, LLC (or, with respect to an Excluded Mortgage Loan, Wells Fargo Bank, National Association), as Special Servicer on behalf of Wilmington Trust, National Association, as Trustee for the benefit of the Holders of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, the holder of any Serviced Companion Loan and the holder of any Serviced B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the
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account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related Serviced B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property
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underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property;
(v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a Serviced B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the
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necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.
(f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
Section 9.15 Sale of REO Property.
(a) If title to any REO Property is acquired by the Trust (or its nominee) in respect of any Specially Serviced Mortgage Loan, the deed or certificate of sale shall be issued to the Trust, the Trustee or to its nominees. The Special Servicer, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, shall use its reasonable best efforts to sell any REO Property for cash as soon as practicable consistent with the objective of maximizing proceeds for all Certificateholders (and, with respect to a Loan Pair or A/B Whole Loan, for the Certificateholders and the holder of the related Serviced Companion Loan and/or Serviced B Note, as applicable, as a collective whole), but in no event later than the end of the
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third (3rd) calendar year following the end of the year of its acquisition, and in any event prior to the Rated Final Distribution Date or earlier to the extent necessary to comply with REMIC Provisions, unless (i) the Trustee or the Special Servicer, on behalf of the applicable REMIC Pool, (A) has been granted an extension of time (an “Extension”) (which extension shall be applied for at least sixty (60) days prior to the expiration of the period specified above) by the IRS for the orderly liquidation of such REO Property (a copy of which Extension and the related application shall be delivered to the Certificate Administrator upon request), or (B) is permitted under the REMIC Provisions to continue to hold such REO Property during the period in which the application for such an Extension is pending, in either of which cases the Special Servicer may continue to attempt to sell the REO Property for cash for its fair market value for such longer period as such Extension permits or while the application for such Extension is pending, as the case may be, or (ii) the Special Servicer seeks and subsequently receives, at the expense of the Trust, a Nondisqualification Opinion, addressed to the Trustee and the Special Servicer, to the effect that the holding by the Trust of such REO Property subsequent to the period specified above after its acquisition will not result in the imposition of taxes on “prohibited transactions” of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding; provided that in no event shall the Trust be permitted to hold any REO Property beyond the end of the sixth (6th) calendar year following the end of the year of such REO Property’s acquisition. If the Trustee has not received such an Extension or Opinion of Counsel and the Special Servicer is not able to sell such REO Property for cash within the period specified above, or if an Extension has been granted and the Special Servicer is unable to sell such REO Property within the extended time period, the Special Servicer shall, after consultation with the Applicable Control Party, before the end of such period or extended period, as the case may be, auction the REO Property to the highest cash bidder (which may be the Special Servicer or another Interested Person) in accordance with the Servicing Standard; provided, that if the Special Servicer, any other Interested Person or any of their respective affiliated entities intends to bid on or otherwise purchase any REO Property, (i) the Special Servicer shall notify the Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust, an Appraisal of such REO Property (or internal valuation in accordance with the procedures specified in Section 6.9) and (iii) the applicable Interested Person shall not bid less than the fair market value set forth in such Appraisal. Neither the Trustee nor any Affiliate thereof may purchase an REO Property.
(b) Within thirty (30) days of the sale of the REO Property, the Special Servicer shall provide to the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Master Servicer (and the holder of the related Serviced B Note, if any, if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan, if in connection with a Loan Pair) a statement of accounting for such REO Property, including without limitation, (i) the Acquisition Date for the REO Property, (ii) the date of disposition of the REO Property, (iii) the sale price and related selling and other expenses, (iv) accrued interest (including interest deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO Property related, calculated from the Acquisition Date to the disposition date, (v) final property operating statements, and (vi) such other information as the Trustee or the Certificate Administrator (and the holder of the related
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Serviced B Note, if any, if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan, if in connection with a Loan Pair) may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO Property shall be remitted to the Master Servicer for deposit into the Collection Account within one (1) Business Day of receipt.
(d) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
Section 9.16 Realization on Collateral Security. In connection with the enforcement of the rights of the Trust to any property securing any Specially Serviced Mortgage Loan other than the related Mortgaged Property, the Special Servicer shall consult with counsel to determine how best to enforce such rights in a manner consistent with the REMIC Provisions and shall not, based on a Nondisqualification Opinion addressed to the Special Servicer and the Trustee (the cost of which shall be an expense of the Trust) take any action that could result in the failure of any REMIC Pool to qualify as a REMIC while any Certificates are outstanding or could result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code or on contributions pursuant to Section 860G(d)), unless such action has been approved by a vote of 100% of the Certificateholders (including the Class R Certificateholders).
Section 9.17 Sale of Defaulted Loans.
(a) Promptly upon a Mortgage Loan becoming a Defaulted Loan and if the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) to attempt to sell such Defaulted Loan, the Special Servicer shall use reasonable efforts to solicit offers for such Defaulted Loan on behalf of the Certificateholders and any related Serviced B Note holder or Serviced Companion Loan holder in such manner as will be reasonably likely to realize a fair price. Subject to the provisions of this Section 9.17 and Section 10.3, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Loan.
(b) The Special Servicer shall give the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Master Servicer, the Trust Advisor (other than during any Subordinate Control Period) and the holder of any related Serviced B Note or Serviced Companion Loan not less than five (5) Business Days’ prior written notice of its intention to sell any Defaulted Loan. No Interested Person shall be obligated to submit an offer to purchase any Defaulted Loan, and notwithstanding anything to the contrary contained herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Loan pursuant hereto.
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(c) Whether any cash offer constitutes a fair price for any Defaulted Loan for purposes of this Section 9.17 shall be determined by the Special Servicer, if the highest offer is from a Person other than an Interested Person, or by the Trustee (determined either by itself or by retaining an independent third party as set forth below), if the highest offer is from an Interested Person; provided that, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one (1) other offer is received from an independent third party. In all cases under this Section 9.17, in determining whether any offer received from an Interested Person represents a fair price for any Defaulted Loan, the Trustee, if making such determination itself, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new appraisal shall be an Appraiser selected by the Special Servicer if no Interested Person is making an offer with respect to a Defaulted Loan and selected by the Trustee if an Interested Person is so making an offer. The cost of any such narrative appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. Where any Interested Person is among those making an offer with respect to a Defaulted Loan, the Special Servicer shall require that all offers be submitted to the Trustee in writing. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for any such Defaulted Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from an Interested Person constitutes a fair price for any such Defaulted Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Defaulted Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for any Defaulted Loan shall in all cases be deemed a fair price. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing mortgage loans similar to the subject Defaulted Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Defaulted Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value, incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable as, a Servicing Advance; provided that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(d) Subject to the other subsections of this Section 9.17, the Special Servicer shall act on behalf of the Trust in negotiating and taking any other action necessary or appropriate in connection with the sale of any Defaulted Loan, and the collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of any Defaulted Loan shall be for cash. Any sale of any Defaulted Loan shall be final and without recourse to the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian or
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the Trust (except such recourse to the Trust imposed by those representations and warranties typically given in such transactions and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Custodian, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.
(e) Subject to the rights of a holder of any related Serviced B Note, Serviced Companion Loan or mezzanine loan, under the respective Intercreditor Agreement or mezzanine loan intercreditor agreement, as applicable, to purchase a Mortgage Loan, unless and until a Defaulted Loan is sold pursuant to this Section 9.17, the Special Servicer shall continue to service and administer such Defaulted Loan in accordance with the Servicing Standard and this Agreement and shall pursue such other resolutions or recovery strategies including workout, foreclosure or sale of such Defaulted Loan, as is consistent with this Agreement and the Servicing Standard.
(f) The purchase price for any Defaulted Loan purchased under this Section 9.17 shall be remitted to the Master Servicer for deposit into the Collection Account, and the Custodian (on the Trustee’s behalf), upon receipt of a request for release from the Master Servicer or the Special Servicer, as applicable, to the Custodian and the Trustee, shall release or cause to be released to the purchaser of the Defaulted Loan the related Mortgage File, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as shall be necessary to vest in such purchaser ownership of such Mortgage Loan. In connection with any such purchase, the Special Servicer (to the extent it has possession of such file) and the Master Servicer (to the extent it has possession of such file) shall deliver the related Servicer Mortgage File to such purchaser.
(g) Notwithstanding any of the foregoing paragraphs of this Section 9.17, but subject to Section 10.3, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines (in consultation with the Trust Advisor, during any Collective Consultation Period and any Senior Consultation Period, and subject to the rights of the Controlling Class Representative set forth in Section 10.3), in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).
(h) In no event shall the Trust or the Trustee, the Master Servicer or the Special Servicer on the Trustee’s behalf purchase, or pay or advance costs to purchase, any B Note or Serviced Companion Loan.
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(i) In the case of a Defaulted Loan that is part of a Loan Pair, if the Special Servicer determines to attempt to sell such Mortgage Loan it shall sell such Defaulted Loan together with the related Serviced Companion Loan as a whole loan pursuant to this Agreement and the terms of the related Intercreditor Agreement.
With respect to any such Defaulted Loan, the Special Servicer shall solicit offers for such Defaulted Loan together with the related Serviced Companion Loan as a whole loan and shall require that all offers be submitted to the Trustee in writing. Whether any cash offer constitutes a fair price for any such Loan Pair for purposes of this Section 9.17 shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person (as defined in the related Intercreditor Agreement) for a Loan Pair shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for any such Loan Pair, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with this Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Servicing Advance. In determining whether any such offer from a Person constitutes a fair price for any such Loan Pair, the Trustee shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), as applicable, among other factors, the period and amount of any delinquency on the affected Loan Pair, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters selected with reasonable care and retained by the Trustee at the expense of the Trust and the holder of the related Serviced Companion Loan in connection with making such determination. Notwithstanding the foregoing, the Special Servicer shall not be permitted to sell the Loan Pair without the written consent of the related Serviced Companion Loan holder unless the Special Servicer has delivered to such holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Loan Pair; (b) at least 10 days prior to the proposed sale, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least 10 days prior to the proposed sale, a copy of the most recent Appraisal for the Loan Pair, and any documents in the Servicer Mortgage File requested by such holder and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided, that such holder may waive any of the delivery or timing requirements set forth in this sentence. Subject to the foregoing, each of the Controlling Class Representative, the Serviced Companion Loan holder or a representative thereof shall be permitted to submit an offer at any sale of a Loan Pair.
Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Trust) designate an
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independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject mortgage loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such mortgage loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph shall be covered by, and shall be reimbursable from, the Collection Account, to the extent of the pro rata portion allocable to the related Mortgage Loan, and the related Custodial Account, to the extent of the applicable portion allocable to the related Serviced Companion Loan in accordance with the related Intercreditor Agreement; provided, that, the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.
(j) Notwithstanding anything to the contrary herein, any purchase of a Defaulted Loan pursuant to this Section 9.17 will remain subject to the cure and purchase rights of, in each case if applicable, the holder of any related B Note or Serviced Companion Loan as set forth in the related Intercreditor Agreement and any holder of a related mezzanine loan as set forth in the related mezzanine loan intercreditor agreement. The Special Servicer shall determine the price to be paid in accordance with the terms of the Intercreditor Agreement or the related mezzanine loan intercreditor agreement in connection with any such purchase rights in favor of the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, and shall provide such notices to the holder of the related B Note, Serviced Companion Loan or mezzanine loan, as applicable, as are required by the Intercreditor Agreement or the related mezzanine loan intercreditor agreement, as the case may be, in connection with each such holders’ purchase rights.
Section 9.18 A/B Whole Loans. The parties acknowledge that, the Special Servicer shall not be entitled or required to exercise the rights and powers granted to any “Note B Holder” as defined under the related Intercreditor Agreement. Subject to Section 10.3, when (i) any A Note or Serviced B Note under any A/B Whole Loan, (ii) any Serviced Pari Passu Mortgage Loan or Serviced Companion Loan under any Loan Pair, or (iii) any Mortgage Loan with any related mezzanine loan, as applicable, constitutes a Specially Serviced Mortgage Loan, the Special Servicer shall be entitled to exercise the rights and powers granted under the related Intercreditor Agreement or mezzanine loan intercreditor agreement that the Master Servicer would be entitled to exercise under Section 8.3(j) hereof with respect to the related A Note, Serviced Pari Passu Mortgage Loan or Mortgage Loan, as applicable.
Section 9.19 Reserved.
Section 9.20 Merger or Consolidation. Any Person into which the Special Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Special Servicer shall be a party, or any Person succeeding to the business of the Special Servicer, shall be the successor of the Special Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, that the Special Servicer shall have provided a Rating Agency Communication to each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or
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Serviced B Note; provided, further, that the successor or surviving Person meets the requirements set forth in Section 9.30(g) for a successor Special Servicer and if, and for so long as, the Trust, or with respect to any Serviced Companion Loan the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Depositor or the depositor under such Other Companion Loan Pooling and Servicing Agreement, as the case may be, shall have consented thereto (which consent shall not be unreasonably delayed or withheld). If the conditions to the proviso in the foregoing sentence are not met, the Trustee may terminate the Special Servicer’s servicing of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 9.31. The successor or surviving Person shall provide prompt notice of the merger or consolidation to the other parties hereto and the 17g-5 Information Provider. If the Special Servicer enters into a merger and the Special Servicer is the surviving entity under applicable law, the Special Servicer shall not, as a result of the merger, be required to provide a Rating Agency Communication, meet the requirements of Section 9.30(g), or obtain the consent of the Depositor or any depositor under an Other Companion Loan Pooling and Servicing Agreement.
Section 9.21 Resignation of Special Servicer.
(a) Except as otherwise provided in this Section 9.21, the Special Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Special Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Special Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trustee. In connection with any such resignation, the successor special servicer shall either: (i) during any Subordinate Control Period, be appointed by the Controlling Class Representative in accordance with the first (1st) paragraph of Section 9.30(c); or (ii) during any Collective Consultation Period or any Senior Consultation Period, be appointed by the Trustee and, during any Collective Consultation Period, be reasonably acceptable to the Controlling Class Representative, and otherwise satisfy the requirements for a successor Special Servicer set forth in Section 9.30(g); provided that in either case the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication with respect to the replacement of the existing Special Servicer with the proposed successor. Notice of such resignation shall be given promptly by the Special Servicer to the other parties to this Agreement. The Special Servicer shall bear all costs associated with its resignation and the transfer of servicing under this Section 9.21(a). Notwithstanding the foregoing, if the Special Servicer shall cease to serve as such in accordance with this Section 9.21(a) and a successor servicer shall not have been engaged (or, if applicable in the case of an A/B Whole Loan or Loan Pair, shall not have been appointed by a related Loan-Specific Directing Holder and engaged or, otherwise during any Subordinate Control Period, shall not have been appointed by the Controlling Class Representative and engaged), the Trustee or an agent of the Trustee shall assume the duties and obligations of the Special Servicer under this Agreement. If the Trustee or an agent of the Trustee assumes the duties and obligations of the Special Servicer pursuant to this Section 9.21(a), the Trustee or such agent shall be permitted to
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resign as special servicer if it has been replaced by a successor servicer satisfying the criteria in the fourth (4th) preceding sentence above.
(b) The Special Servicer may resign from the obligations and duties hereby imposed on it, upon thirty (30) days’ notice to the Depositor, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator; provided that (i) a successor special servicer (A) is available, (B) during any Subordinate Control Period, is acceptable to or has been appointed by the Controlling Class Representative, (C) during any Collective Consultation Period, is reasonably acceptable to the Controlling Class Representative, the Depositor, and the Trustee, (D) during any Senior Consultation Period, is reasonably acceptable to the Depositor and the Trustee, (E) is willing to assume the obligations, responsibilities and covenants to be performed hereunder by the Special Servicer on substantially the same terms and conditions, and for not more than equivalent compensation as that herein provided (unless a successor cannot be found for existing compensation), and (F) otherwise satisfies the requirements for a successor Special Servicer set forth in Section 9.30(g), (ii) the successor special servicer has a net worth of at least $15,000,000, (iii)(A)(x) such successor special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither DBRS nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities as the sole or material reason for such downgrade or withdrawal or placement on watch or (y) if such successor special servicer is not acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; and (B) such successor special servicer has a special servicer rating of at least “CSS3” from Fitch; and (iv) the resigning Special Servicer shall have provided each Rating Agency with a Rating Agency Communication with respect to such resignation. Any costs of such resignation and of obtaining a replacement Special Servicer and of transfer of servicing shall be borne by the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (a) or (b) above shall become effective unless and until such successor Special Servicer enters into an agreement with the other parties hereto assuming the obligations and responsibilities of the Special Servicer hereunder in form and substance reasonably satisfactory to the Trustee.
(d) If the Special Servicer resigns under this Section 9.21, it shall continue to have rights to any and all compensation, indemnification, reimbursement of Advances and any other amounts due to the Special Servicer hereunder which were earned, accrued or expended prior to termination.
Section 9.22 Assignment or Delegation of Duties by Special Servicer. The Special Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in Section 9.3) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Special Servicer hereunder or (B) assign and
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delegate all of its duties hereunder. In the case of any such assignment and delegation in accordance with the requirements of clause (A) of this Section, the Special Servicer shall not be released from its obligations under this Agreement. In the case of any such assignment and delegation in accordance with the requirements of clause (B) of this Section, the Special Servicer shall be released from its obligations under this Agreement, except that the Special Servicer shall remain liable for all liabilities and obligations incurred by it as the Special Servicer hereunder prior to the satisfaction of the following conditions: (i) the Special Servicer gives the Depositor, the Master Servicer, the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the other parties hereto an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Special Servicer, with like effect as if originally named as a party to this Agreement; (iii) the purchaser or transferee has a net worth in excess of $15,000,000 and otherwise satisfies the requirements for a successor Special Servicer set forth in Section 9.30(g); (iv) the Special Servicer shall have provided to each Rating Agency a Rating Agency Communication with respect to such assignment and delegation; (v) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative consents to such assignment and delegation, such consent not to be unreasonably withheld during any Collective Consultation Period; (vi) the Depositor consents to such assignment and delegation, such consent not to be unreasonably withheld and (vii)(A)(x) the successor special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS and a commercial mortgage loan securitization that was rated by Moody’s, in each case within the twelve (12) month period prior to the date of determination, and neither DBRS nor Moody’s has downgraded or withdrawn the then current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, as applicable, as the sole or material reason for such downgrade or withdrawal (or placement on watch) or (y) if such successor special servicer is not acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS and/or Moody’s in such twelve (12) month period, then such Rating Agency shall have provided a Rating Agency Confirmation; and (B) the successor special servicer has a special servicer rating of at least “CSS3” from Fitch. Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in accordance with Section 9.4 hereof.
Section 9.23 Limitation on Liability of the Special Servicer and Others.
(a) Neither the Special Servicer nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Special Servicer shall be under any liability to the Certificateholders, any other party to this Agreement, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan for any action taken or for refraining from the taking of any action in good faith and using reasonable business judgment; provided that this provision shall not protect the Special Servicer or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Special Servicer and any Affiliate, director, officer,
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employee, member, manager or agent of the Special Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the information and reports delivered by or at the direction of the Master Servicer or any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer) respecting any matters arising hereunder. Except as specifically provided in Section 9.34, the Special Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Specially Serviced Mortgage Loans in accordance with this Agreement; provided that the Special Servicer may in its sole discretion undertake any such action which it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders, the holder of any Serviced B Note, the holder of any Serviced Companion Loan and the Trustee in the Specially Serviced Mortgage Loans, or shall undertake any such action if instructed to do so by the Trustee. In such event, all legal expenses and costs of such action (other than those that are connected with the routine performance by the Special Servicer of its duties hereunder) shall be expenses and costs of the Trust, and the Special Servicer shall be entitled to be reimbursed therefor as a Servicing Advance, together with interest thereon, as provided by Section 5.2 hereof.
(b) In addition, the Special Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Special Servicer and conforming to the requirements of this Agreement, including by the Master Servicer. Neither the Special Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Special Servicer or such officer was negligent in ascertaining the pertinent facts. Neither the Special Servicer, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement. The Special Servicer shall be entitled to rely on reports and information supplied to it by the Master Servicer and the related Mortgagors and shall have no duty to investigate or confirm the accuracy of any such report or information unless otherwise required hereunder. The Special Servicer shall have no liability for the inaccuracy of any of its reports due to the inaccuracy of the information provided by the Master Servicer and shall have no obligation to investigate or confirm the accuracy of any information provided to it by the Master Servicer.
(c) The Special Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Special Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any
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other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Special Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed or in good faith believed by it to be genuine.
(e) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer shall be indemnified by the Master Servicer, the Trustee, the Certificate Administrator and the Custodian, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Master Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard by such Person of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Special Servicer’s duties hereunder or by reason of negligent disregard of the Special Servicer’s obligations and duties hereunder. The Special Servicer shall promptly notify the Master Servicer, the Trustee, the Certificate Administrator and the Custodian, if a claim is made by a third party entitling the Special Servicer to indemnification hereunder, whereupon, subject to Section 9.34, the Master Servicer, the Trustee, the Certificate Administrator or the Custodian, in each case, to the extent the claim was made in connection with its willful misfeasance, bad faith or negligence, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Special Servicer). Any failure to so notify the Master Servicer, the Trustee, the Certificate Administrator or the Custodian shall not affect any rights the Special Servicer may have to indemnification hereunder or otherwise, unless the interest of the Master Servicer, the Trustee, the Certificate Administrator or the Custodian is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination, removal or resignation of the Special Servicer. Any payment hereunder made by the Master Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be, pursuant to this paragraph to or at the direction of the Special Servicer shall be paid from the Master Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, own funds, without reimbursement from the Trust therefor, except achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian or the Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Certificate Administrator, the Custodian or the Master Servicer, as the case may be, was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
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Section 9.24 Indemnification; Third-Party Claims.
(a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any Serviced B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any Serviced B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative, any Loan-Specific Directing Holder or the Master Servicer pursuant to any provision of this Agreement or the applicable Intercreditor Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties.
Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or grantor trust formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or provisions relating to the grantor trust or the actual payment of any REMIC tax or grantor trust tax or expense with respect to any REMIC or grantor trust formed hereunder) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any Serviced B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the
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collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole.
The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any Serviced B Note, as set forth above, out of the related Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was
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not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Section 9.25 Reserved.
Section 9.26 Special Servicer May Own Certificates. The Special Servicer or any agent of the Special Servicer in its individual capacity or in any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if they were not the Special Servicer or such agent. Any such interest of the Special Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Special Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Special Servicer.
Section 9.27 Tax Reporting. The Special Servicer shall provide the necessary information to the Master Servicer to allow the Master Servicer to comply with the Mortgagor tax reporting requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan and any REO Property. The Special Servicer shall provide to the Master Servicer copies of any such reports. The Master Servicer shall forward such reports to the Certificate Administrator.
Section 9.28 Application of Funds Received. It is anticipated that the Master Servicer will be collecting all payments with respect to the Mortgage Loans, any Serviced Companion Loan and any Serviced B Note (other than payments with respect to REO Income). If, however, the Special Servicer should receive any payments with respect to any Mortgage Loan (other than REO Income) it shall, within one (1) Business Day of receipt from the Mortgagor or otherwise of any amounts attributable to payments with respect to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any (but not including REO Income, which shall be deposited in the applicable REO Account as provided in Section 9.14 hereof) remit such payment or other amounts (endorsed, if applicable, to the order of the Master
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Servicer), to the Master Servicer for deposit into the Collection Account. The Special Servicer shall notify the Master Servicer of each such amount received on or before the date required for the making of such deposit or transfer, as the case may be, indicating the Mortgage Loan or the Specially Serviced Mortgage Loan to which the amount is to be applied and the type of payment made by or on behalf of the related Mortgagor.
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions. The Special Servicer shall act in accordance with this Agreement and the REMIC Provisions and related provisions of the Code in order to create or maintain the status of any REMIC Pool as a REMIC and the Grantor Trust created hereby as a grantor trust or, as appropriate, adopt a plan of complete liquidation. The Special Servicer shall not (A) take any action or cause any REMIC Pool to take any action that could (i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii) subject to Section 9.14(e), result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on contributions pursuant to Section 860G(d)) or (B) take any action or cause the Grantor Trust to take any action that could (i) endanger its status as a grantor trust, an “investment trust” under Treasury Regulations Section 301.7701-4(c), or a “domestic trust” under Treasury Regulations Section 301.7701-7 or (ii) result in the imposition of any tax upon the Grantor Trust unless the Master Servicer and the Certificate Administrator have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such tax. The Special Servicer shall comply with the provisions of Article XII hereof. Notwithstanding the foregoing, the Special Servicer shall not be liable for an Adverse REMIC Event resulting from the failure of any Mortgage Loan by its terms to comply with Revenue Procedure 2010-30 or other REMIC Provisions.
Section 9.30 Termination.
(a) The obligations and responsibilities of the Special Servicer created hereby (other than the obligation of the Special Servicer to make payments to the Master Servicer as set forth in Section 9.28 and the obligations of the Special Servicer pursuant to Sections 9.3, 9.8 and 9.24 hereof) shall terminate on the date which is the earliest of (i) the later of (A) the final payment or other liquidation of the last of the Mortgage Loans remaining outstanding (and final distribution to the Certificateholders) or, (B) the disposition of all REO Property in respect of any Specially Serviced Mortgage Loan (and final distribution to the Certificateholders), (ii) thirty (30) days following the date on which the Trustee or the Controlling Class Representative has given written notice to the Special Servicer that the Special Servicer is terminated pursuant to Section 9.30(b) or 9.30(c), respectively and (iii) the effective date of any resignation of the Special Servicer effected pursuant to and in accordance with Section 9.21.
(b) The Trustee may (and, if holders of Certificates representing more than 25% of the aggregate Voting Rights of all Certificates so direct the Trustee, shall) terminate the Special Servicer if any of the following have occurred and are continuing or have not been cured:
(i) the Special Servicer has failed to remit any amount required to be remitted to the Master Servicer within one (1) Business Day following the date such amount was required to have been remitted under the terms of this Agreement;
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(ii) the Special Servicer has failed to deposit into any account any amount required to be so deposited or remitted under the terms of this Agreement which failure continues unremedied for one (1) Business Day following the date on which such deposit or remittance was first required to be made;
(iii) the Special Servicer has failed to duly observe or perform in any material respect any of the other covenants or agreements of the Special Servicer set forth in this Agreement (other than if and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the duties, covenants or agreements set forth in Article XIII to the extent described in Section 9.30(b)(ix)), and the Special Servicer has failed to remedy such failure within thirty (30) days after written notice of such failure, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee; provided such cure period may be extended to the extent necessary to permit the Special Servicer to cure such failure if (A) the Special Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, and (B) the Certificateholders would not be materially and adversely affected thereby; provided, that such cure period may not exceed 90 days;
(iv) the Special Servicer has made one or more false or misleading representations or warranties herein that materially and adversely affects the interest of any Class of Certificates, and has failed to cure such breach within thirty (30) days after notice of such breach, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee, provided such cure period may be extended to the extent necessary to permit the Special Servicer to cure such failure if (A) the Special Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, and (B) the Certificateholders shall not be materially and adversely affected thereby; provided that such cure period may not exceed 90 days;
(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Special Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(vi) the Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings relating to the Special Servicer or of or relating to all or substantially all of its property;
(vii) the Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing;
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(viii) a Special Servicing Officer of the Special Servicer obtains knowledge that (a) DBRS or Moody’s has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan or (B) placed one or more Classes of Certificates or one or more classes of securities backed by a Serviced B Note or Serviced Companion Loan on “watch status” in contemplation of a ratings downgrade or withdrawal (and, in the case of either of clauses (A) or (B), such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by DBRS or Moody’s, as applicable, within sixty (60) days of the date such Special Servicing Officer obtained such actual knowledge) and, in the case of either of clauses (A) or (B), publicly cited servicing concerns with the Special Servicer as the sole or material factor in such rating action; or (b) the Special Servicer ceases to have a special servicer rating of at least “CSS3” from Fitch and such rating is not reinstated within sixty (60) days;
(ix) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Special Servicer, or any Servicing Function Participant appointed by the Special Servicer, shall fail to comply with any of its obligations under Article XIII of this Agreement; or
(x) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Special Servicer shall fail to terminate, on the same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer of the Master Servicer, any Sub-Servicer appointed by the Special Servicer.
Such termination shall be effective on the date that the Trustee specifies in a written notice to the Special Servicer that the Special Servicer is terminated due to the occurrence of one of the foregoing events and the expiration of any applicable cure period or grace period specified above for such event. During any Subordinate Control Period, the Controlling Class Representative shall have the right to appoint a successor Special Servicer if the Trustee terminates the existing Special Servicer.
With respect to any Loan Pair, if any event described clauses 9.30(b)(i)-(x) has occurred that affects the holder of the related Serviced Companion Loan, such holder shall have the right to direct the Trustee to terminate the Special Servicer under this Agreement solely with respect to such Loan Pair.
Any event described in clauses (i) through (viii) of the first (1st) sentence of the first paragraph of this subsection (b) may be waived by the Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of the Certificates (except a default in making any required deposits to or payments from the Collection Account or the Distribution Account or in remitting payments as received, in each case in accordance with this Agreement).
(c) During any Subordinate Control Period, the Controlling Class Representative, if any, shall have the right to terminate the Special Servicer (x) for cause at any time and (y) without cause if (A) LNR Partners, LLC or its affiliate is no longer the Special
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Servicer or (B) LNR Securities Holdings, LLC or its affiliate owns less than 15% of the then Controlling Class of Certificates, and in the case of either clause (x) or (y), the Controlling Class Representative shall have the right to, and shall, appoint a successor Special Servicer meeting the requirements of Section 9.30(g), who shall execute and deliver to the other parties hereto an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; provided that the Trustee shall have provided each Rating Agency and each other NRSRO with respect to any securities rated by any such NRSRO evidencing interests in any Serviced Companion Loan or Serviced B Note with a Rating Agency Communication prior to the termination of the Special Servicer; provided, further, that the Excluded Mortgage Loan Special Servicer shall not be subject to termination pursuant to this Section 9.30(c). The Special Servicer shall not be terminated pursuant to this paragraph until a successor Special Servicer shall have been appointed. The Controlling Class Representative shall pay any costs and expenses incurred by the Trust in connection with the removal and appointment of a Special Servicer pursuant to this paragraph (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)). Notwithstanding anything to the contrary in this Agreement, no successor Special Servicer appointed by the Controlling Class Representative pursuant to Section 9.21(a), Section 9.30(b) or this Section 9.30(c) will be required to meet any net worth requirements.
During any Collective Consultation Period and any Senior Consultation Period, upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the aggregate Voting Rights of the Certificates requesting a vote to terminate and replace the Special Servicer with a proposed successor Special Servicer meeting the requirements of Section 9.30(g), (ii) payment by such Holders to the Certificate Administrator and/or the Trustee of the reasonable fees and expenses to be incurred by the Certificate Administrator and/or the Trustee in connection with administering such vote and (iii) delivery by, and at the expense of, such Holders to each Rating Agency (with a copy to the Certificate Administrator and the Trustee) of a Rating Agency Communication with respect to the termination of the existing Special Servicer and the replacement thereof with the proposed successor, the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders by posting such notice on its internet website and by mailing such notice to their addresses appearing in the Certificate Register. Upon the written direction of Holders of Certificates evidencing at least 75% of the aggregate Voting Rights of the Certificates, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement, and the proposed successor Special Servicer shall succeed to the duties of the Special Servicer all as if a removal and replacement were occurring pursuant to Section 9.30(b) and Section 9.31; provided that if such written direction is not provided within 180 days of the initial request for a vote to terminate and replace the Special Servicer, then such written direction shall have no force and effect. The provisions set forth in the foregoing sentences of this paragraph shall be binding upon and inure to the benefit of solely the Certificateholders and the Trustee as between each other. The Special Servicer shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions. As between the Special Servicer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Special Servicer. The Holders of the Certificates that initiated the vote to replace the Special Servicer shall pay the costs and
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expenses incurred in connection with the removal and replacement of the Special Servicer pursuant to this paragraph.
In addition, during any Senior Consultation Period, if the Trust Advisor determines that the Special Servicer is not performing its duties in accordance with the Servicing Standard, the Trust Advisor may recommend the replacement of the Special Servicer. In such event, the Trust Advisor shall deliver to the Trustee and Certificate Administrator, with a copy to the Special Servicer, a written recommendation (along with the relevant information justifying its recommendation) of a suggested replacement special servicer. The Certificate Administrator shall notify each Certificateholder of the recommendation and post it on the Certificate Administrator’s Website. The replacement of the Special Servicer based on the Trust Advisor’s recommendation must be confirmed by an affirmative vote of the Holders of Principal Balance Certificates evidencing greater than 50% of the aggregate Voting Rights of all Principal Balance Certificates on an aggregate basis; provided that if a proposed termination and replacement of the Special Servicer following the initial recommendation of the Trust Advisor is not consummated within 180 days following the initial recommendation of the Trust Advisor, then the proposed termination and replacement shall have no further force and effect. If the Holders of such Principal Balance Certificates elect to remove and replace the Special Servicer, the Trustee shall provide to each Rating Agency a Rating Agency Communication at that time. If the successor special servicer agrees to be bound by the terms of this Agreement, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor special servicer approved by the Certificateholders, provided such successor special servicer satisfies the requirements of Section 9.30(g), subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees, reimbursement of Advances and other rights set forth in this Agreement which survive termination. The reasonable costs and expenses associated with the Trust Advisor’s identification of a replacement special servicer, providing the Rating Agency Communications and administering the vote of the applicable Principal Balance Certificates will be an Additional Trust Expense. In any case, the Trustee shall notify the outgoing Special Servicer promptly of the effective date of its termination.
(d) Notwithstanding any of the foregoing to the contrary, the holder of a Serviced Companion Loan or Serviced B Note or its designee, to the extent set forth in the related Intercreditor Agreement and only for so long as it is the related Loan-Specific Directing Holder, shall have the sole right to terminate the Special Servicer with respect to the related Loan Pair or A/B Whole Loan, as applicable, upon the appointment and acceptance of such appointment by a successor to the Special Servicer; provided that, if such holder of the related Serviced Companion Loan or Serviced B Note or its designee so terminates the Special Servicer, such holder of that Serviced Companion Loan or Serviced B Note or its designee shall appoint a successor Special Servicer who will (i) in the case of the related Loan Pair or A/B Whole Loan, be reasonably satisfactory to the Trustee and to the Depositor; and (ii) execute and deliver to the Trustee an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; and provided, further, that the Trustee shall provide to each Rating Agency a Rating Agency Communication prior to the termination of the Special Servicer. The Special Servicer shall not be terminated pursuant to this Section 9.30(d) until a successor Special Servicer shall have been appointed. The holder of the applicable Serviced Companion Loan or Serviced B Note or its designee shall pay any costs and expenses incurred by the Trust
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in connection with the removal and appointment of a Special Servicer pursuant to this paragraph (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)). If the holder of a Serviced Companion Loan or Serviced B Note or its designee terminates the Special Servicer with respect to the related Loan Pair or A/B Whole Loan, as applicable, and appoints a successor special servicer with respect to such Loan Pair or A/B Whole Loan, as applicable, then the Controlling Class Representative (or the Holders of the applicable percentage of Certificates) shall not have the right to terminate any such successor special servicer without cause until the holder of the related Serviced Companion Loan or Serviced B Note or its designee is no longer the Loan-Specific Directing Holder with respect to such Loan Pair or A/B Whole Loan, as applicable.
(e) Notwithstanding any of the foregoing to the contrary, so long as LNR Securities Holdings, LLC or an Affiliate thereof owns more than 50% of the Controlling Class or is the representative appointed by such holders pursuant to Section 10.1(a) and (b), such party shall have no right to replace or remove the Excluded Mortgage Loan Special Servicer with respect to any Excluded Mortgage Loan.
(f) If a separate special servicer is appointed or remains in place with respect to a Loan Pair or an A/B Whole Loan at the request of the Loan-Specific Directing Holder of such Loan Pair or A/B Whole Loan, at the request of a Serviced Companion Loan holder or in respect of any Excluded Mortgage Loan, as applicable, in accordance with Section 9.30(b), Section 9.30(c) or Section 9.30(d) or otherwise (any such separate special servicer for a Loan Pair, A/B Whole Loan or Excluded Mortgage Loan, a “Loan-Specific Special Servicer”), such that there are multiple parties acting as Special Servicer hereunder, then, unless the context clearly requires otherwise: (i) when used in the context of imposing duties and obligations on the Special Servicer hereunder or the performance of such duties and obligations, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer, insofar as such duties and obligations relate to a Loan Pair, A/B Whole Loan or Excluded Mortgage Loan, as applicable, as to which a Loan-Specific Special Servicer has been appointed or otherwise relates, and shall mean the General Special Servicer, in all other cases; (ii) when used in the context of identifying the recipient of any information, funds, documents, instruments and/or other items, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer, insofar as such information, funds, documents, instruments and/or other items relate to a Loan Pair, A/B Whole Loan or Excluded Mortgage Loan, as applicable, as to which a Loan-Specific Special Servicer has been appointed or otherwise relates, and shall mean the General Special Servicer, in all other cases; (iii) when used in the context of granting the Special Servicer the right to purchase all of the Mortgage Loans and any REO Properties remaining in the Trust pursuant to Section 11.1(b), the term “Special Servicer” shall mean the General Special Servicer only; (iv) when used in the context of granting the Special Servicer any protections, limitations on liability, immunities and/or indemnities hereunder, the term “Special Servicer” shall mean each Loan-Specific Special Servicer and the General Special Servicer; and (v) when used in the context of requiring indemnification from, imposing liability on, or exercising any remedies against, the Special Servicer for any breach of a representation or warranty hereunder or for any negligence, bad faith or willful misconduct in the performance of duties and obligations hereunder or any negligent disregard of such duties and obligations or otherwise holding the Special Servicer responsible for any of the foregoing, the term “Special Servicer” shall mean the related Loan-Specific Special Servicer or the General Special Servicer, as applicable. References in this Section 9.30(f) to
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“General Special Servicer” mean the Person performing the duties and obligations of Special Servicer with respect to the Mortgage Loans (exclusive of each and every A/B Whole Loan and Loan Pair as to which a Loan-Specific Special Servicer has been appointed and exclusive of the Excluded Mortgage Loans).
(g) In no event may a successor Special Servicer be a current or former Trust Advisor or any Affiliate of such current or former Trust Advisor. Further, such successor must be a Person that satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement (other than any net worth requirement during any Subordinate Control Period when the Controlling Class Representative is appointing the successor Special Servicer in accordance with Section 9.21(a), Section 9.30(b) or Section 9.30(c)) and, if applicable, any Intercreditor Agreement; provided, that no Rating Agency Confirmation shall be required in connection with the appointment of any Special Servicer other than pursuant to Section 9.21(b) of this Agreement. The Special Servicer, any successor Special Servicer and any of their respective Affiliates shall not (i) pay, or become obligated, whether by agreement or otherwise, and whether or not subject to any condition or contingency, to pay the Trust Advisor or any Affiliate thereof any fee, or otherwise compensate or grant monetary or other consideration to the Trust Advisor or any Affiliate thereof (x) in connection with its obligations under this Agreement or the performance thereof or (y) in connection with the appointment of such Person as, or any recommendation by the Trust Advisor for such Person to become, the successor Special Servicer, (ii) become entitled to receive any compensation from the Trust Advisor (x) in connection with its obligations under this Agreement or the performance thereof or (y) in connection with the appointment of such Person as, or any recommendation by the Trust Advisor for such Person to become, the successor Special Servicer or (iii) become entitled to receive any fee from the Trust Advisor or any Affiliate thereof in connection with the appointment of such Person as Special Servicer, unless, in each of the foregoing clauses (i) through (iii), such transaction has been expressly approved by 100% of the Certificateholders.
(h) If the Special Servicer is terminated under this Agreement, it shall continue to have any indemnification rights that survive termination and any rights to any and all compensation, reimbursement of Advances and any other amounts due to the Special Servicer hereunder which were earned, accrued or expended prior to termination.
Section 9.31 Procedure Upon Termination.
(a) Notice of any termination pursuant to clause (i) of Section 9.30(a), specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Special Servicer to the Trustee and the Certificate Administrator no later than the later of (i) five (5) Business Days after the final payment or other liquidation of the last Mortgage Loan or (ii) the sixth (6th) day of the month in which the final Distribution Date will occur. Upon any such termination, the rights and duties of the Special Servicer (other than the rights and duties of the Special Servicer pursuant to Sections 9.8, 9.11 (with respect to any outstanding fees earned prior to such termination), 9.21, 9.23, 9.24 and 9.28 hereof) shall terminate and the Special Servicer shall transfer to the Master Servicer the amounts remaining in each REO Account and shall thereafter terminate each REO Account and any other account or fund maintained with respect to the Specially Serviced Mortgage Loans.
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(b) On the date specified in a written notice of termination given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority, power and rights of the Special Servicer under this Agreement, whether with respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate, subject to the Special Servicer’s right to receive compensation and indemnification as expressly provided herein, as well as the benefit of any other rights that survive termination hereunder; provided, that in no event shall the termination of the Special Servicer be effective until the Trustee or other successor Special Servicer shall have succeeded the Special Servicer as successor Special Servicer, notified the Special Servicer of such designation, and such successor Special Servicer shall have assumed the Special Servicer’s obligations and responsibilities, as set forth in an agreement substantially in the form hereof, with respect to the Specially Serviced Mortgage Loans. The Trustee or other successor Special Servicer may not succeed the Special Servicer as Special Servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Special Servicer pursuant to Section 9.20 hereof and otherwise complies with Section 9.30(g). The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination. The Special Servicer agrees to cooperate with the Trustee in effecting the termination of the Special Servicer’s responsibilities and rights hereunder as Special Servicer including, without limitation, providing the Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor Special Servicer designated by the Trustee to assume the Special Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Special Servicer in any REO Account and any other account or fund maintained or thereafter received with respect to the Specially Serviced Mortgage Loans. On the date specified in a written notice of termination given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority, power and rights of the Special Servicer under this Agreement with respect to the applicable Serviced Pari Passu Mortgage Loan, whether such Mortgage Loan is a Specially Serviced Mortgage Loan or otherwise, shall terminate. The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination.
Section 9.32 Certain Special Servicer Reports.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan, shall provide to the Master Servicer no later than the Special Servicer Remittance Date for each month, the CREFC® Special Servicer Loan File, in such electronic format as is mutually acceptable to the Master Servicer and the Special Servicer and in CREFC® format. The Master Servicer may use such reports or information contained therein to prepare its reports and the Master Servicer shall forward such reports directly to the Depositor and the Certificate Administrator.
(b) The Special Servicer shall maintain accurate records, prepared by a Special Servicing Officer, of each Final Recovery Determination with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced B Note, Serviced Companion Loan or REO Property and the basis thereof. Each Final Recovery Determination shall be
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evidenced by an Officer’s Certificate delivered to the Trustee, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor (other than during any Subordinate Control Period), the Certificate Administrator, the Custodian and the Master Servicer no later than the tenth (10th) Business Day following such Final Recovery Determination. The Special Servicer shall promptly provide the Master Servicer with electronic written notice of any Final Recovery Determination with respect to any Specially Serviced Mortgage Loan upon making such determination. The Special Servicer shall promptly provide a copy of such notice electronically to the Trustee, the Custodian, the Certificate Administrator (who shall promptly post a copy thereof on the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post a copy thereof on the 17g-5 Information Provider’s Website pursuant to Section 5.7)).
(c) The Special Servicer shall provide to the Master Servicer, at the reasonable request in writing of the Master Servicer, any information in its possession with respect to the Specially Serviced Mortgage Loans which the Master Servicer shall require in order for the Master Servicer to comply with its obligations under this Agreement; provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder. The Master Servicer shall provide the Special Servicer at the request of the Special Servicer any information in its possession with respect to the Mortgage Loans which the Special Servicer shall require in order for the Special Servicer to comply with its obligations under this Agreement.
(d) Not later than twenty (20) days after any calendar month end, the Special Servicer shall forward to the Master Servicer a statement setting forth the status of each REO Account as of the close of business for such related calendar month end, stating that all remittances required to be made by it as required by this Agreement to be made by the Special Servicer have been made (or, if any required distribution has not been made by the Special Servicer, specifying the nature and status thereof) and showing, for the related calendar month the aggregate of deposits into and withdrawals from each REO Account.
(e) With respect to Specially Serviced Mortgage Loans and REO Properties, the Special Servicer shall use reasonable efforts to obtain and, to the extent obtained, to deliver electronically to the Master Servicer (and the Master Servicer shall, upon receipt, deliver electronically to the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor (other than during any Subordinate Control Period)), on or before April 15 of each year, commencing with April 15, 2016, (i) copies of the prior year operating statements and quarterly statements, if available, for each Mortgaged Property underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that either the related Mortgage Note or Mortgage requires the Mortgagor to provide such information, or if the related Mortgage Loan has become an REO Loan, (ii) a copy of the most recent rent roll available for each Mortgaged Property, and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy with respect to each Mortgaged Property covered by the operating statements delivered above; provided, that, with respect to any Mortgage Loan that becomes a
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Specially Serviced Mortgage Loan prior to April 15, 2016 and for which the items in clause (i) and (ii) above have not been delivered, the Special Servicer shall use reasonable efforts to obtain and, to the extent obtained, deliver such items to the Master Servicer, the Certificate Administrator, the Rating Agencies (subject to Section 5.7), the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor (other than during any Subordinate Control Period), as soon as possible after receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the Depositor, the Certificate Administrator, the Trustee and the Custodian all such other information with respect to the Specially Serviced Mortgage Loans at such times and to such extent as the Master Servicer, the Trustee, the Certificate Administrator or the Depositor may from time to time reasonably request; provided that the Special Servicer shall not be required to produce any ad hoc non-standard written reports with respect to such Specially Serviced Mortgage Loans except if any Person (other than the Certificate Administrator or the Trustee) requesting such report pays a reasonable fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver electronically a written Inspection Report of each Mortgaged Property securing a Specially Serviced Mortgage Loan in accordance with Section 9.3(b) to the Master Servicer (who shall deliver electronically such written inspection report to the Certificate Administrator, the 17g-5 Information Provider, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), and the Trust Advisor (other than during any Subordinate Control Period)).
(h) The Special Servicer shall prepare a report (the “Asset Status Report”) recommending the taking of certain actions for each Mortgage Loan that becomes a Specially Serviced Mortgage Loan and deliver such Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the Asset Status Report, to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, and the Master Servicer, the Certificate Administrator, the 17g-5 Information Provider and, during any Collective Consultation Period and any Senior Consultation Period, the Trust Advisor not later than forty-five (45) days after the servicing of such Specially Serviced Mortgage Loan is transferred to the Special Servicer. Such Asset Status Report shall set forth the following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations reasonably known to the Special Servicer (including without limitation by reason of any Phase I Environmental Assessment and any additional environmental testing contemplated by Section 9.12(c)), consistent with the Servicing Standard, that are applicable to the exercise of remedies set forth herein and to the enforcement of any related guaranties or other collateral for
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the related Specially Serviced Mortgage Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer’s recommended action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or Mortgaged Properties, together with the assumptions used in the calculation thereof (which the Special Servicer may satisfy by providing a copy of the most recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer deems relevant in light of the Servicing Standard.
If (i) the Applicable Control Party affirmatively approves in writing an Asset Status Report, (ii) after ten (10) Business Days from receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, the Applicable Control Party does not object to such Asset Status Report or (iii) within ten (10) Business Days after receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, the Applicable Control Party objects to such Asset Status Report and the Special Servicer makes a determination in accordance with the Servicing Standard that such objection is not in the best interest of all the Certificateholders and any holder of a related Serviced B Note or Serviced Companion Loan, as a collective whole, then the Special Servicer shall take the recommended actions described in the Asset Status Report. Within ten (10) Business Days after receipt of an Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the Asset Status Report, the Applicable Control Party may object to such Asset Status Report; provided that following the occurrence of an extraordinary event with respect to the related Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of such ten (10) Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such action before the expiration of such ten (10) Business Day period would materially and adversely affect the interest of the Certificateholders and the holder of any related Serviced B Note or Serviced Companion Loan, and the Special Servicer has made a reasonable effort to contact the Applicable Control Party, as applicable. If the Applicable Control Party objects to an Asset Status Report, together with all information reasonably requested by the Applicable Control Party in the possession of the Special Servicer that is reasonably necessary for the Applicable Control Party to make a decision regarding the Asset Status Report, within the above-referenced ten (10) Business Day period, then the Special Servicer (absent a determination set forth in clause (iii) of the first sentence of this paragraph) shall revise such Asset Status Report as soon as practicable thereafter, but in no event later than thirty (30) days after the objection to the Asset Status Report by the Applicable Control Party. The Special Servicer shall
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revise such Asset Status Report as provided in the prior sentence until the earlier of (a) the delivery by the Applicable Control Party of an affirmative approval in writing of such revised Asset Status Report, and (b) the failure of the Applicable Control Party to disapprove such revised Asset Status Report in writing within ten (10) Business Days of its receipt thereof. In any event, if the Applicable Control Party does not approve an Asset Status Report within ninety (90) days from the submission of such Asset Status Report, the Special Servicer shall take such action as directed by the Applicable Control Party, provided that such action does not violate the Servicing Standard. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement the new action in such revised report so long as such revised report has been prepared, reviewed and either approved or not rejected as provided above.
Other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder, each of the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period) and the Controlling Class Representative (during any Collective Consultation Period) will be entitled to consult with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report. During any Collective Consultation Period and any Senior Consultation Period, other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder, the Special Servicer shall consider such alternative courses of action and any other feedback provided by the Trust Advisor or the Controlling Class Representative, as applicable. The Special Servicer may revise the Asset Status Reports as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of the Trust Advisor (and, during any Collective Consultation Period, the Controlling Class Representative).
The Asset Status Report is not intended to replace or satisfy any other specific consent or approval right which the Applicable Control Party may have.
The Special Servicer may not take any action inconsistent with an Asset Status Report that has been adopted as provided above, unless such action would be required in order to act in accordance with the Servicing Standard. If the Special Servicer takes any action inconsistent with an Asset Status Report that has been adopted as provided above, the Special Servicer shall promptly notify the Applicable Control Party of such inconsistent action and provide a reasonably detailed explanation of the reasons therefor.
The Special Servicer shall deliver to the Master Servicer, the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), the Trust Advisor and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website) a copy of each Final Asset Status Report, in each case with reasonable promptness following the adoption thereof. In addition, the Special Servicer shall prepare and forward to the Certificate Administrator (who shall promptly post same on the Certificate Administrator’s Website) and the 17g-5 Information Provider (who shall promptly post same on the 17g-5 Information Provider’s Website) a summary of any Final Asset Status
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Report (which summary shall solely reflect such Final Asset Status Report and not include extraneous information).
Notwithstanding anything herein to the contrary: (i) the Special Servicer shall have no right or obligation to consult with or to seek and/or obtain consent or approval from any Controlling Class Representative prior to acting (and provisions of this Agreement requiring such consultation, consent or approval shall be of no effect) during the period following any resignation or removal of a Controlling Class Representative and before a replacement is selected; and (ii) no advice, direction or objection from or by (x) the Controlling Class Representative, as contemplated by Section 10.3 or any other provision of this Agreement, (y) a Loan-Specific Directing Holder, as contemplated by this Agreement or the related Intercreditor Agreement, or (z) the Trust Advisor, as contemplated by this Agreement, may (and the applicable Special Servicer shall ignore and act without regard to any such advice, direction or objection that such Special Servicer has determined, in its reasonable, good faith judgment, would): (A) require or cause such Special Servicer to violate applicable law, the terms of any Mortgage Loan or any other Section of this Agreement, including the applicable Special Servicer’s obligation to act in accordance with the Servicing Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, (C) expose the Trust, any Certificateholder the Depositor, the Master Servicer, the Special Servicer, Certificate Administrator, the Custodian, the Trustee or any of their respective Affiliates, members, managers, officers, directors, employees or agents, to any material claim, suit or liability or (D) materially expand the scope of the Master Servicer’s or Special Servicer’s responsibilities under this Agreement.
(i) With respect to each Collection Period, the Special Servicer shall deliver or cause to be delivered to the Master Servicer, without charge and within two (2) Business Days following the end of such Collection Period, and the Master Servicer to the extent it has received such report shall forward or cause to be forwarded to the Certificate Administrator, without charge and on the Master Servicer Remittance Date, an electronic report (which may include HTML, Word or Excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator and the Special Servicer) that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period, provided that no such report shall be due in respect of any Collection Period during which no Disclosable Special Servicer Fees were received. For the avoidance of doubt, the Master Servicer shall not have any obligation to review, or any right or obligation to edit, the Special Servicer’s report on Disclosable Special Servicer Fees.
Section 9.33 Special Servicer to Cooperate with the Master Servicer, the Trustee, the Custodian and the Certificate Administrator.
(a) Subject to Section 5.4(e), the Special Servicer shall furnish on a timely basis such reports, certifications, and information as are reasonably requested by the Master Servicer, the Trustee, the Custodian or the Certificate Administrator to enable it to perform its duties under this Agreement; provided that no such request shall (i) require or cause the Special Servicer to violate the Code, any provision of this Agreement, including the Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of
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any REMIC Pool and the grantor trust status of the Grantor Trust or (ii) expose the Special Servicer, the Trust, the Certificate Administrator, the Custodian or the Trustee to liability or materially expand the scope of the Special Servicer’s responsibilities under this Agreement. In addition, the Special Servicer shall notify the Master Servicer of all expenditures incurred by it with respect to the Specially Serviced Mortgage Loans which are required to be made by the Master Servicer as Servicing Advances as provided herein, subject to the provisions of Section 4.4 hereof. The Special Servicer shall also remit all invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) In addition to any other rights that a Controlling Class Representative or Loan-Specific Directing Holder may have hereunder, the Special Servicer shall from time to time make reports, recommendations and analyses to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period and other than with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder) or any related Loan-Specific Directing Holder (with respect to an A/B Whole Loan or a Loan Pair as to which the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the related Loan-Specific Directing Holder), as applicable, with respect to the following matters, the expense of which shall not be an expense of the Trust (except for out-of-pocket expenses of the Special Servicer, which shall be reimbursable in accordance with Section 4.6(e)):
(i) whether the foreclosure of a Mortgaged Property relating to a Specially Serviced Mortgage Loan would be in the best economic interest of the Trust;
(ii) if the Special Servicer elects to proceed with a foreclosure, whether a deficiency judgment should or should not be sought because the likely recovery will or will not be sufficient to warrant the cost, time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any “due-on-sale” clause or “due-on-encumbrance” clause contained in a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or a Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement from or with a person to whom a Mortgaged Property securing a Specially Serviced Mortgage Loan has been or is about to be conveyed, whether to release the original Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute a new Mortgagor, and whether the credit status of the prospective new Mortgagor is in compliance with the Special Servicer’s regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced Mortgage Loan secured by a Mortgaged Property which is not in compliance with CERCLA, or any comparable environmental law, whether it is in the best economic interest of the Trust to bring the Mortgaged Property into compliance therewith and an estimate of the cost to do so; and
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(vi) with respect to any proposed modification (which shall include any proposed release, substitution or addition of collateral), extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan (other than any Non-Serviced Mortgage Loan), prepare a summary of such proposed action and an analysis of whether or not such action is reasonably likely to produce a greater recovery on a net present value basis (calculated in accordance with Section 1.2(e)) than liquidation of such Mortgage Loan; such analysis shall specify the basis on which the Special Servicer made such determination, including the status of any existing material default or the grounds for concluding that a payment default is imminent.
Section 9.34 Litigation Control.
(a) With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan or any Excluded Mortgage Loan), any Serviced Companion Loan or any related REO Loan or related REO Property, the Special Servicer shall in accordance with the Servicing Standard, direct, manage, prosecute and/or defend any action brought by a Mortgagor, guarantor, other obligor under the related Mortgage Loan documents or any affiliates thereof (each, a “Borrower-Related Party”) against the Trust (including, without limitation, any action in which both the Trust and the Master Servicer are named) and/or the Special Servicer and represent the interests of the Trust in any litigation relating to the rights and obligations of a Borrower-Related Party under the related Mortgage Loan documents, or with respect to the related Mortgaged Property or other collateral securing a Mortgage Loan (other than any Excluded Mortgage Loan), A/B Whole Loan or Loan Pair, or of the Trust or the enforcement of the obligations of a Borrower-Related Party under the related Mortgage Loan documents (“Trust-Related Litigation”). In the event that the Master Servicer is named in any Trust-Related Litigation but the Special Servicer is not named in such Trust-Related Litigation (regardless of whether the Trust is named in such Trust-Related Litigation), the Master Servicer shall notify the Special Servicer of such litigation as soon as practicable but in any event no later than within ten (10) Business Days of the Master Servicer receiving service of such Trust-Related Litigation.
(b) To the extent the Master Servicer is named in Trust-Related Litigation, and neither the Trust nor the Special Servicer is named, in order to effectuate the role of the Special Servicer as contemplated by clause (a), the Master Servicer shall (i) provide monthly status reports to the Special Servicer, regarding such Trust-Related Litigation; (ii) seek to have the Trust replace the Master Servicer as the appropriate party to the lawsuit; and (iii) so long as the Master Servicer remains a party to the lawsuit, consult with and act at the direction of the Special Servicer with respect to decisions and resolutions related to the interests of the Trust in such Trust-Related Litigation, including but not limited to the selection of counsel; provided, that the Master Servicer shall have the right to engage separate counsel relating to claims against the Master Servicer to the extent set forth in Section 9.34(e); provided, further, that if there are claims against the Master Servicer and the Master Servicer has not determined that separate counsel is required for such claims, such counsel shall be reasonably acceptable to the Master Servicer.
(c) The Special Servicer shall not (i) undertake any material settlement of any Trust-Related Litigation or (ii) initiate any material Trust-Related Litigation unless and until it has notified in writing the Controlling Class Representative (during any Subordinate Control Period or Collective Consultation Period) and the holder of any related Serviced Companion
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Loan or Serviced B Note (if such matter affects such Serviced Companion Loan or Serviced B Note) (to the extent the identity of the holder of such Serviced Companion Loan or Serviced B Note is actually known to the Special Servicer) and the Controlling Class Representative (during any Subordinate Control Period) and the holder of any related Serviced Companion Loan or Serviced B Note (for so long as such holder is the Loan-Specific Directing Holder in respect of such A/B Whole Loan or Loan Pair, as applicable) has not objected in writing within five (5) Business Days (or such longer period specified in the related Intercreditor Agreement) of having been notified thereof and having been provided with all information that it has reasonably requested with respect thereto promptly following its receipt of the subject notice (it being understood and agreed that if such written objection has not been received by the Special Servicer within such time period, then the Controlling Class Representative or the Loan-Specific Directing Holder, as applicable, shall be deemed to have approved the taking of such action); provided, that, if the Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders and, with respect to an A/B Whole Loan or Loan Pair, any related Serviced Companion Loan and/or Serviced B Note holders, the Special Servicer may take such action without waiting for the Controlling Class Representative’s or the Loan-Specific Directing Holder’s response.
(d) Notwithstanding the foregoing, neither the Special Servicer nor the Master Servicer shall follow any advice, direction or consultation provided by the Controlling Class Representative or any Loan-Specific Directing Holder that would require or cause the Special Servicer or the Master Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer or the Master Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan, A/B Whole Loan or Loan Pair, expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions or materially expand the scope of the Special Servicer’s, the Master Servicer’s, the Certificate Administrator’s or the Trustee’s, as applicable, responsibilities under this Agreement.
(e) Notwithstanding the right of the Special Servicer to represent the interests of the Trust in Trust-Related Litigation, and subject to the rights of the Special Servicer to direct the Master Servicer’s actions in this Section 9.34, the Master Servicer shall retain the right to make determinations relating to claims against the Master Servicer, including but not limited to the right to engage separate counsel and to appear in any proceeding on its own behalf in the Master Servicer’s reasonable discretion, the cost of which shall be subject to indemnification as and to the extent provided in this Agreement.
(f) Further, nothing in this section shall require the Master Servicer to take or fail to take any action which, in the Master Servicer’s good faith and reasonable judgment, may (i) result in a violation of the REMIC Provisions or (ii) subject the Master Servicer to liability or materially expand the scope of the Master Servicer’s obligations under this Agreement.
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(g) Notwithstanding the Master Servicer’s right to make determinations relating to claims against the Master Servicer, the Special Servicer shall have the right at any time in accordance with the Servicing Standard to (i) direct the Master Servicer to settle any claims asserted against the Master Servicer (whether or not the Trust or the Special Servicer is named in any such claims or Trust-Related Litigation) (and with respect to any material settlements, with the consent or consultation of the Controlling Class Representative during a Subordinate Control Period or Collective Consultation Period, respectively, and the consent of the holder of any related Serviced Companion Loan or Serviced B Note (for so long as such holder is the Loan-Specific Directing Holder in respect of such A/B Whole Loan or Loan Pair, as applicable)) and (ii) otherwise reasonably direct the actions of the Master Servicer relating to claims against the Master Servicer (whether or not the Trust or the Special Servicer is named in any such claims or Trust-Related Litigation); provided, that in either case that (A) such settlement or other direction does not require any admission of liability or wrongdoing on the part of the Master Servicer, (B) the cost of such settlement or any resulting judgment is paid by the Trust under circumstances in which payment of such cost or judgment is provided for in this Agreement, (C) the Master Servicer is indemnified as and to the extent provided in this Agreement for all costs and expenses of the Master Servicer incurred in defending and settling the Trust-Related Litigation and for any judgment, and (D) the Special Servicer provides the Master Servicer with assurance reasonably satisfactory to the Master Servicer as to the items in clauses (A), (B) and (C). Any such action taken by the Master Servicer at the direction of the Special Servicer shall be deemed (as to the Master Servicer) to be in compliance with the Servicing Standard.
(h) In the event both the Master Servicer and the Special Servicer or Trust are named in Trust-Related Litigation, the Master Servicer and the Special Servicer shall cooperate with each other to afford the Master Servicer and the Special Servicer the rights afforded to such party in this Section 9.34.
(i) This Section 9.34 shall not apply in the event the Special Servicer authorizes the Master Servicer, and the Master Servicer agrees (both authority and agreement to be in writing), to make certain decisions or control certain Trust-Related Litigation on behalf of the Trust in accordance with the Servicing Standard.
(j) Notwithstanding the foregoing, (A) in the event that any action, suit, litigation or proceeding names the Trustee in its individual capacity, or in the event that any judgment is rendered against the Trustee in its individual capacity, the Trustee, upon prior written notice to the Master Servicer or the Special Servicer, as applicable, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (B) in the event of any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding directly relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan Documents, or otherwise directly relating to one or more Mortgage Loans or Mortgaged Properties pursuant to the power of attorney granted to the Special Servicer or the Master Servicer, as applicable, under this Agreement, neither the Master Servicer nor the Special Servicer shall, without the prior written consent of the Trustee, (i) initiate an action, suit, litigation or proceeding in the name of the Trustee, whether in such capacity or individually, (ii) engage counsel to represent the Trustee, or (iii) prepare, execute or deliver any government
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filings, forms, permits, registrations or other documents or take any other similar actions with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state (provided that neither the Master Servicer nor the Special Servicer shall be responsible for any delay due to the unwillingness of the Trustee to grant such consent); and (C) in the event that any court finds that the Trustee is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Trustee shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests, whether as Trustee or individually (but not to otherwise direct, manage or prosecute such litigation or claim); provided, that nothing in this subsection shall be interpreted to preclude the Special Servicer (with respect to any material Trust-Related Litigation, with the consent or consultation of the Controlling Class Representative during a Subordinate Control Period or Collective Consultation Period, respectively, to the extent required in Section 9.34(c) and subject to Section 9.34(d)) from initiating any action, suit, litigation or proceeding in its name as representative of the Trust.
(k) For the avoidance of doubt and notwithstanding anything contained herein to the contrary, references to the rights and obligations of the Special Servicer in this Section 9.34 shall only apply to LNR Partners, LLC to the extent that such entity is acting as General Special Servicer under this Agreement, and not to the Excluded Mortgage Loan Special Servicer. References to Mortgage Loans (including related references to associated Mortgagors, guarantors, obligors and Mortgaged Properties) in this Section 9.34 shall mean the Mortgage Loans other than any Non-Serviced Mortgage Loans or Excluded Mortgage Loans.
Section 9.35 Excluded Mortgage Loan Notices. Upon a Servicing Officer or Special Servicing Officer, as applicable, of the Excluded Mortgage Loan Special Servicer or the Master Servicer having actual knowledge, or receiving notice from any party indicating that such party believes, that a Mortgage Loan is no longer an Excluded Mortgage Loan, it shall provide prompt written notice thereof (in no event more than five (5) Business Days after receipt thereof) to each of the other parties hereto.
ARTICLE
X
CERTAIN MATTERS RELATING TO THE CONTROLLING CLASS
REPRESENTATIVE, THE TRUST ADVISOR AND THE HOLDERS
OF THE SERVICED B NOTES AND SERVICED COMPANION LOANS
Section 10.1 Selection and Removal of the Controlling Class Representative.
(a) The Majority Controlling Class Certificateholders may elect the Controlling Class Representative.
(b) The Controlling Class Representative shall be the representative appointed by the Majority Controlling Class Certificateholders, as determined by the Certificate Registrar from time to time; provided that (i) absent such selection, or (ii) until a Controlling Class Representative is so selected, or (iii) upon receipt of notice from the Majority Controlling Class Certificateholders that a Controlling Class Representative is no longer so designated, the Controlling Class Certificateholder which owns, and is identified (with contact information) to the Master Servicer, the Special Servicer and Certificate Administrator as owning, the largest
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aggregate Certificate Balance of Certificates of the Controlling Class shall be the Controlling Class Representative; provided that, if such Holder elects or has elected to not be the Controlling Class Representative, then the Holder of the next largest aggregate Certificate Balance shall be the Controlling Class Representative. Each Holder of the Certificates of the Controlling Class shall be entitled to vote in each election of the Controlling Class Representative.
(c) Notwithstanding anything to the contrary herein, (i) neither the Depositor nor any Affiliate thereof may serve as Controlling Class Representative, and solely for purposes of determining the identity of or selecting the Controlling Class Representative as described in clauses (a) and (b) above, any Control Eligible Certificates held by the Depositor or any Affiliate thereof shall be deemed not to be outstanding, (ii) a Mortgagor or Affiliate thereof will not be permitted to serve as the Controlling Class Representative, and solely for purposes of determining the identity of or selecting the Controlling Class Representative as described in clauses (a) and (b) above, any Controlling Class Certificates owned by such Mortgagor or Affiliate thereof shall be deemed not to be outstanding (except that the restriction in this clause (ii) will not apply to LNR Securities Holdings, LLC or an Affiliate thereof by virtue of any equity ownership of its Affiliates in the Mortgagors under any Excluded Mortgage Loan), and (iii) so long as LNR Securities Holdings, LLC or an Affiliate thereof owns more than 50% of the Controlling Class or is the representative appointed in accordance with clauses (a) and (b) above, there shall be no Controlling Class Representative with respect to any Excluded Mortgage Loan, and the Special Servicer shall not be required to obtain the consent of a Controlling Class Representative for any matters described in Section 10.3 below with respect to any Excluded Mortgage Loan.
(d) The initial Controlling Class Representative is LNR Securities Holdings, LLC. The Controlling Class shall give written notice to the Trustee, the Custodian, the Certificate Administrator, the Trust Advisor, the Master Servicer and the Special Servicer of the appointment of any subsequent Controlling Class Representative (in order to receive notices hereunder).
(e) The Controlling Class Representative may be removed at any time by the written vote of the Majority Controlling Class Certificateholders, and a copy of the results of such vote must be delivered to each of the parties to this Agreement.
(f) Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Certificate of the Controlling Class, the selection of a Controlling Class Representative or the resignation or removal thereof. Any Certificateholder or its designee at any time appointed Controlling Class Representative is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the Certificate Administrator when such Certificateholder or its designee is appointed Controlling Class Representative and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Trustee, the Special Servicer and the Master Servicer of the identity of the Controlling Class Representative and any resignation or removal thereof. In addition, upon the request of the Master Servicer or the Special Servicer, as applicable, the Certificate Administrator shall provide the name of the then-current Controlling
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Class and a list of the Certificateholders (or Certificate Owners, if applicable, at the expense of the requesting party) of the Controlling Class to such requesting party.
(g) Once a Controlling Class Representative has been selected, each of the Master Servicer, the Special Servicer, the Trust Advisor, the Depositor, the Certificate Administrator, the Trustee, the Custodian and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Majority Controlling Class Certificateholders shall have notified each other party to this Agreement and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative.
(h) Until it receives notice to the contrary, each party to this Agreement shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative.
Section 10.2 Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders. The Controlling Class Representative shall not be liable to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, in accordance with or as permitted by this Agreement.
Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative, the Holders of the Control Eligible Certificates and/or the Loan-Specific Directing Holders may each have special relationships and interests that conflict with those of Holders of one or more other Classes of Certificates; (ii) the Controlling Class Representative and/or the Holders of the Control Eligible Certificates may act solely in the interests of the Holders of the respective Classes of the Control Eligible Certificates (or any of them), and any Loan-Specific Directing Holder may act solely in its own interests; (iii) the Controlling Class Representative, the Holders of the Control Eligible Certificates and the Loan-Specific Directing Holders do not have any duties to the Holders of any other Class of Certificates; (iv) the Controlling Class Representative and/or the Holders of the Control Eligible Certificates may take actions that favor interests of the Holders of the respective Classes of the Control Eligible Certificates (or any of them), and any Loan-Specific Directing Holder may take actions that favor its interests, over the interests of the Holders of one or more other Classes of Certificates; (v) none of the Controlling Class Representative, the Holders of the Control Eligible Certificates and/or the Loan-Specific Directing Holders shall have any liability whatsoever to the Trust, the other parties to this Agreement, the Certificateholders or any other Person (including any Mortgagor) for having acted or refrained from acting in accordance with or as permitted under the terms of this Agreement; and (vi) the Holders of the Certificates may not take any action whatsoever against the Controlling Class Representative, the Controlling Class, any Holder of a Control Eligible Certificate, any Loan-Specific Directing Holder or any of the respective affiliates, directors, officers, shareholders, members, partners, agents or principals thereof as a result of the Controlling Class Representative, the Controlling Class, the Holders of the Control Eligible Certificates and/or any Loan-Specific Directing Holder as applicable, for having acted or refrained from acting in accordance with the terms of and as permitted under this Agreement.
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Section 10.3 Rights and Powers of Controlling Class Representative.
(a) Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, Section 10.3(b), Section 10.3(c) and the second (2nd) and third (3rd) paragraphs of this Section 10.3(a), (i) the Master Servicer shall not be permitted to take (to the extent that it is authorized to do so hereunder) any of the actions constituting a Major Decision or a Special Servicer Decision unless the Special Servicer and the Master Servicer mutually agree that the Master Servicer shall process such action. If the Special Servicer and the Master Servicer mutually agree that the Master Servicer shall process such action, the Master Servicer shall prepare and forward to the Special Servicer its written recommendation and analysis and any other information or documents reasonably requested by the Special Servicer (to the extent such information or documents are in the Master Servicer’s possession). In connection with any such action that the Master Servicer is processing, the Master Servicer must obtain the consent of the Special Servicer (which approval shall be deemed given if the Special Servicer does not object within fifteen (15) Business Days (or (A) in the case of an action relating to an A/B Whole Loan or Loan Pair, while the holder of the related Serviced B Note or Serviced Companion Loan, as the case may be, or its designee is the related Loan-Specific Directing Holder, within the period expiring five (5) Business Days following the expiration of the related Loan-Specific Directing Holder’s decision period under the related Intercreditor Agreement, and (B) in the case of a determination of an Acceptable Insurance Default, ninety (90) days) of receipt of the Master Servicer’s written analysis and recommendation together with any information in the possession of the Master Servicer that is reasonably required to make a decision regarding the subject action), and (ii) the Special Servicer shall not be permitted to take, or to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision, (A) during any Subordinate Control Period, as to which the Controlling Class Representative has objected in writing within ten (10) Business Days (or in the case of a determination of an Acceptable Insurance Default, thirty (30) days), or (B) in the case of an action relating to an A/B Whole Loan or Loan Pair, while the holder of the related Serviced B Note or Serviced Companion Loan, as the case may be, is the related Loan-Specific Directing Holder, as to which the related Loan-Specific Directing Holder has objected within the decision period provided for under the related Intercreditor Agreement, in each case after receipt of the written recommendation and analysis from the Special Servicer, together with any information in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the subject action (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Day (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) day) period, then the Controlling Class Representative will be deemed to have approved such action); provided that if the Special Servicer or Master Servicer (if the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Controlling Class Representative during any Subordinate Control Period, is necessary to protect the interests of the Certificateholders and, with respect to any A/B Whole Loan or Loan Pair, the holder of the related Serviced B Note or Serviced Companion Loan, as applicable (as a collective whole as if such Certificateholders and the holder of such Serviced B Note or Serviced Companion Loan, as the case may be, constituted a single lender), the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Controlling Class Representative’s (or, if applicable, the Special Servicer’s) response; provided, further, that the
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Special Servicer is not required to obtain the consent of the Controlling Class Representative for any of the foregoing actions during any Collective Consultation Period or any Senior Consultation Period (or, in the case of an Excluded Mortgage Loan, at any time that the subject Mortgage Loan is an Excluded Mortgage Loan); provided, further, that the Special Servicer will be required to consult, solely on a non-binding basis (and to consider alternative actions recommended by each such party) (i) during any Collective Consultation Period and any Senior Consultation Period, with the Trust Advisor, as to any of the Major Decisions, and (ii) during any Collective Consultation Period, with the Controlling Class Representative with respect to any of the Major Decisions and any other matter as to which consent of the Controlling Class Representative would have been required during any Subordinate Control Period. Notwithstanding anything in this Agreement to the contrary, to the extent that the Master Servicer and Special Servicer mutually agree that the Master Servicer will not process a Major Decision or Special Servicer Decision, the Master Servicer shall have no duty to deliver to the Special Servicer any analysis or recommendations in connection with any such action but shall be required to provide all available information that is reasonably necessary for the Special Servicer to make a decision with respect to the applicable Major Decision or Special Servicer Decision. Notwithstanding any of the foregoing to the contrary, if the Controlling Class Representative is an Affiliate of a Mortgagor under a Mortgage Loan or a Manager of a Mortgaged Property and is therefore not a Privileged Person, the Special Servicer shall nevertheless be permitted to provide to the Controlling Class Representative all information necessary in order to permit the Controlling Class Representative to (i) consult on any matter with respect to which it is entitled to consult under this Agreement and/or (ii) determine whether to provide the required consent described above, and the Special Servicer shall not be in breach of this Agreement or the Servicing Standard solely by virtue of providing such information to the Controlling Class Representative.
In addition, during any Subordinate Control Period, subject to Section 10.3(b), Section 10.3(c) and the immediately following paragraph, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, A/B Whole Loan or Loan Pair (other than (x) any Non-Serviced Mortgage Loan or Non-Serviced Loan Combination, and (y) any A/B Whole Loan or Loan Pair as long as the holder of the related Serviced B Note or Serviced Companion Loan is the Loan-Specific Directing Holder of such A/B Whole Loan or Loan Pair) as the Controlling Class Representative may deem advisable or as to which provision is otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no direction or objection contemplated by the preceding paragraph or any other provision of this Agreement, may require or cause the Master Servicer or the Special Servicer to violate any provision of any loan documents, any Intercreditor Agreement, applicable law, this Agreement or the REMIC Provisions, including without limitation the Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trustee or the Trust to liability, or materially expand the scope of the Special Servicer’s responsibilities hereunder. Furthermore, in addition to the Controlling Class Representative’s rights of consent and consultation (as applicable) as set forth in Section 10.3(a) above, it is understood and agreed that to the extent any other provision of this Agreement requires the provision of notice to, the obtaining of consent of, and/or consultation with, the Controlling Class Representative, or otherwise provides for any right of the Controlling Class Representative thereunder, then none of the Trustee, the
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Master Servicer or the Special Servicer shall be entitled to take any action (or omit to take any action) in contravention of the applicable rights of the Controlling Class Representative contained in such provision; provided that this sentence is not intended to in any way (i) expand the rights of the Controlling Class Representative, (ii) limit the application of the immediately preceding sentence, (iii) remove any limitations on the exercise of such rights set forth in, such other provisions, or (iv) require the Trustee, the Master Servicer and/or the Special Servicer to send a notice to, obtain the consent of, or consult with a new Controlling Class Representative whose name and contact information have not yet been provided to the Trustee, the Master Servicer and/or the Special Servicer; and provided, further, that if such other provisions are in any way subject to this Section 10.3, then the exercise of such rights shall be subject to Section 10.3(b) and the immediately following paragraph.
If the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any direction or advice from the Controlling Class Representative would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of any loan documents, any Intercreditor Agreement, applicable law, the REMIC Provisions or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Controlling Class Representative, the Trustee, the Certificate Administrator and the 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Master Servicer or Special Servicer in accordance with the direction of or approval of the Controlling Class Representative that does not violate any loan documents, any Intercreditor Agreement, any applicable law, the REMIC Provisions, or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of the Master Servicer or the Special Servicer.
(b) During any Senior Consultation Period, the Controlling Class Representative shall have no consultation rights under this Agreement and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; provided that the Controlling Class Representative (if and to the extent that it is a Certificateholder) will maintain the right to exercise its Voting Rights for the same purposes as any other Certificateholder under this Agreement. Notwithstanding anything to the contrary contained herein: (i) for so long as the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan Pair, the Controlling Class Representative shall not be entitled to exercise any of the rights in Section 10.3(a) with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property; and (ii) the Controlling Class Representative shall not have any consent rights with respect to any Non-Serviced Mortgage Loan but (during any Subordinate Control Period or Collective Consultation Period) shall have consultation rights with respect to such Non-Serviced Mortgage Loans, in each case as and to the extent set forth in the related Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained herein, for so long as the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee is the Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan
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Pair, (i) such Loan-Specific Directing Holder shall be entitled to exercise with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property all of the rights and powers of such Loan-Specific Directing Holder under the related Intercreditor Agreement, and (ii) the Controlling Class Representative shall not have any of the consent rights or rights to direct the Special Servicer contemplated by Section 10.3(a) with respect to such A/B Whole Loan or Loan Pair, as the case may be, or any related REO Property except as set forth in the related Intercreditor Agreement. The rights of the holder of any related Serviced B Note or Serviced Companion Loan, as applicable, or its designee as Loan-Specific Directing Holder with respect to any A/B Whole Loan or Loan Pair will be unaffected by the existence of any Subordinate Control Period, Collective Consultation Period or Senior Consultation Period.
(d) No Controlling Class Certificateholder or Controlling Class Representative shall be permitted to direct the Master Servicer to accept a Principal Prepayment (including payment of a Balloon Payment other than in connection with the foreclosure or liquidation of a Mortgage Loan) prior to the Due Date for such Mortgage Loan for the related Collection Period unless, to the extent otherwise permitted pursuant to the terms of this Agreement, such Mortgage Loan is a Specially Serviced Mortgage Loan.
Section 10.4 Controlling Class Representative and Trust Advisor Contact with Master Servicer and Special Servicer. Upon reasonable request, each of the Master Servicer and the Special Servicer shall, without charge, make a Servicing Officer or Special Servicing Officer, as applicable, available to answer questions from the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and the Trust Advisor (other than during any Subordinate Control Period) regarding the performance and servicing of the Mortgage Loans (or, in the case of the Special Servicer, Specially Serviced Mortgage Loans and REO Properties) for which the Master Servicer or the Special Servicer, as the case may be, is responsible (but shall not respond to questions of the Trust Advisor with any information regarding communications between the Controlling Class Representative or a Loan-Specific Directing Holder, on the one hand, and the Master Servicer or Special Servicer, on the other hand).
Section 10.5 Appointment, Duties and Compensation of the Trust Advisor.
(a) (i) The Trust Advisor shall promptly review all information available to Privileged Persons on the Certificate Administrator’s Website related to any Specially Serviced Mortgage Loan or REO Property and included as part of the CREFC® Investor Reporting Package (IRP) and each Asset Status Report delivered to the Trust Advisor by the Special Servicer; provided, that during any Subordinate Control Period, the Trust Advisor shall only be permitted to review Final Asset Status Reports.
(ii) During any Collective Consultation Period and any Senior Consultation Period, within sixty (60) days after the end of each calendar year during which any Mortgage Loan was a Specially Serviced Mortgage Loan or any Mortgaged Property was an REO Property, the Trust Advisor shall meet with representatives of the Special Servicer (if it was acting as Special Servicer as of December 31st in the prior calendar year and has continued in such capacity through the date of such meeting) to perform a review of the Special Servicer’s operational practices in light of the Servicing Standard and the requirements of this Agreement
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and shall discuss the Special Servicer’s stated policies and procedures, operational controls and protocols, risk management systems, intellectual resources, the Special Servicer’s reasoning for believing it is in compliance with this Agreement and other pertinent information the Trust Advisor may consider relevant, in each case, insofar as such information relates to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties.
(iii) The Trust Advisor shall provide the Special Servicer at least thirty (30) days’ prior written notice of the date proposed for the annual meeting described in this Section 10.5(a)(iii). The Trust Advisor and the Special Servicer shall determine a mutually acceptable date for the annual meeting. The Trust Advisor shall deliver, at least fourteen (14) days prior to such annual meeting, a proposed written agenda to the Special Servicer and such agenda shall identify the Asset Status Reports that shall be discussed during the annual meeting. The Trust Advisor and the Special Servicer may discuss any of the Asset Status Reports produced and any Specially Serviced Mortgage Loan and any REO Property as part of the Trust Advisor’s annual assessment of the Special Servicer’s performance hereunder. The Special Servicer shall make available senior Special Servicing Officers with relevant knowledge regarding the applicable Specially Serviced Mortgage Loans and REO Properties and the related platform level information for each annual meeting.
(iv) During any Collective Consultation Period and any Senior Consultation Period, based on the Trust Advisor’s meeting with the Special Servicer, the Trust Advisor’s review of any Asset Status Reports and other information delivered to the Trust Advisor by the Special Servicer (other than any communications between the Controlling Class Representative or a Loan-Specific Directing Holder and the Special Servicer that would be Privileged Information) and any other information available to Privileged Persons on the Certificate Administrator’s Website, the Trust Advisor shall, in each case, deliver to the Certificate Administrator and the 17g-5 Information Provider (each of which shall promptly post such Trust Advisor Annual Report on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, respectively) within 120 days of the end of the prior calendar year an annual report (the “Trust Advisor Annual Report”), substantially in the form of Exhibit L hereto; provided, that in no event shall the information or any other content included in any Trust Advisor Annual Report consist of Privileged Information or otherwise contravene any provision of this Agreement; provided, further, that any applicable Trust Advisor Annual Report may describe any limitations resulting from any lack of access to Privileged Information. Each Trust Advisor Annual Report shall set forth the Trust Advisor’s assessment of the Special Servicer’s performance of its duties under this Agreement during the prior calendar year on a platform-level basis with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties. Each of the Special Servicer and, during any Collective Consultation Period, the Controlling Class Representative shall be given an opportunity to review any Trust Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider; provided, that the Trust Advisor shall have no obligation to adopt any comments to such Trust Advisor Annual Report that are provided by the Special Servicer and/or the Controlling Class Representative. Subject to the restrictions in this Agreement, each such Trust Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties and (B) comply with all of the confidentiality requirements described in this
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Agreement regarding Privileged Information. If the Special Servicer is replaced, the Trust Advisor Annual Report shall only relate to the entity that was acting as Special Servicer as of December 31st in the prior calendar year and is continuing in such capacity through the date of such Trust Advisor Annual Report. Notwithstanding the foregoing provisions of this Section 10.5(a)(iv), no Trust Advisor Annual Report shall be required to be prepared or delivered with respect to any calendar year as to which no annual meeting described in Section 10.5(a)(ii) shall have been required to be held or with respect to any calendar year during which no Asset Status Reports have been prepared.
As used in connection with the Trust Advisor Annual Report, the term “platform-level basis” refers to the Special Servicer’s performance of its duties as they relate to the resolution and liquidation of Specially Serviced Mortgage Loans, taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Trust Advisor of any annual compliance statement, assessment of compliance report, attestation report, Asset Status Report and other information delivered to the Trust Advisor by the Special Servicer (other than any communications between the Controlling Class Representative or any related Directing Holder, as applicable, and the Special Servicer that would be Privileged Information) pursuant to the provisions of this Agreement.
(b) The Trust Advisor, as an independent contractor, shall review the Special Servicer’s operational practices in respect of Specially Serviced Mortgage Loans and REO Properties, consult (on a non-binding basis) with the Special Servicer and perform each other obligation of the Trust Advisor as set forth in this Agreement in accordance with the Trust Advisor Standard. The Trust Advisor shall not owe any fiduciary duty to the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, any Holder of a Certificate or any other Person in connection with this Agreement. Certificateholders are hereby deemed to have acknowledged and agreed that (i) there could be multiple strategies to resolve any Specially Serviced Mortgage Loan and the objective of the Trust Advisor’s participation in any resolution process is to provide additional oversight relating to the Special Servicer’s compliance with the Servicing Standard in making its determinations as to which strategy to execute; (ii) the Trust Advisor shall have no authority or duty to make a determination on behalf of the Trust, nor any responsibility for decisions made by or on behalf of the Trust; (iii) the Trust Advisor is not an advisor to any Person, including without limitation any Certificateholder; and (iv) the Trust Advisor is not an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended.
(c) During any Subordinate Control Period, the Special Servicer will forward any Appraisal Reduction and net present value calculations used in the Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Mortgage Loan to the Trust Advisor after such calculations have been finalized. The Trust Advisor shall review such calculations but shall not take any affirmative action with respect to such Appraisal Reduction calculations and/or net present value calculations.
(d) During any Collective Consultation Period and any Senior Consultation Period, after the calculation but prior to the utilization by the Special Servicer of any of the
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calculations related to (i) Appraisal Reductions or (ii) net present value, the Special Servicer shall promptly forward such calculations, and the Special Servicer shall promptly forward any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Trust Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Information), to the Trust Advisor but in any event no later than two (2) Business Days after preparing such calculations, and the Trust Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portions of the applicable formulas required to be utilized in connection with any such calculation prior to utilization by the Special Servicer provided, that notwithstanding the foregoing, the Trust Advisor will not be permitted to recalculate or verify any Appraisal Reduction or net present value calculations performed by the Special Servicer with respect to any Serviced B Note or Serviced Companion Loan for so long as the related Serviced B Note holder or Serviced Companion Loan holder is the related Applicable Control Party with respect to the related A/B Whole Loan or Loan Pair. The Trust Advisor may not opine on or call into question these calculations, other than with respect to mathematical errors and the corresponding application of the non-discretionary portions of the applicable formula required to be utilized in connection with any such calculation prior to utilization by the Special Servicer.
In connection with this Section 10.5(d), if the Trust Advisor does not agree with the mathematical calculations or the application of the applicable non-discretionary portions of the formula required to be utilized for such calculation, the Trust Advisor and Special Servicer shall consult with each other in order to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations. If the Trust Advisor and Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Trust Advisor shall promptly notify the Trustee of such disagreement and the Trustee shall determine which calculation is to apply. In making such determination, the Trustee may hire an independent third-party to assist with any such calculation at the expense of the Trust.
(e) Notwithstanding anything herein to the contrary, the Trust Advisor shall have no consultation rights or obligations with respect to any Non-Serviced Mortgage Loans (or any related REO Property), the TKG 3 Retail Portfolio Mortgage Loan or any Non-Serviced Loan Combination.
(f) During any Collective Consultation Period and any Senior Consultation Period, the Special Servicer shall consult (on a non-binding basis) with the Trust Advisor in connection with any Major Decision involving any Mortgage Loan, A/B Whole Loan, Loan Pair or any related REO Property and consider alternative actions recommended by the Trust Advisor; provided, that with respect to matters related to any A/B Whole Loan and any Loan Pair, the Special Servicer shall only be required to consult with the Trust Advisor in respect of such A/B Whole Loan or Loan Pair, as applicable, if the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, is not, or has ceased to be, the related Loan-Specific Directing Holder, and prior to such time, the Trust Advisor shall have no obligations under this Agreement with respect to such A/B Whole Loan or Loan Pair, as applicable.
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(g) Subject to the requirements of confidentiality imposed on the Trust Advisor herein (including without limitation in respect of Privileged Information), the Trust Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 5.4.
(h) The Trust Advisor shall keep all Privileged Information confidential and shall not disclose such Privileged Information to any other person (including any Certificateholders), other than to the other parties to this Agreement, to the extent expressly required by this Agreement, which parties, in turn, if they have been advised that such information is Privileged Information, shall not without the prior written consent of the Special Servicer and the Controlling Class Representative (or with respect to an A/B Whole Loan or a Loan Pair any other Applicable Control Party), disclose such information to any other Person, except that such parties and the Trust Advisor may disclose such information if (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by such parties or the Trust Advisor, as applicable, (b) it is reasonable and necessary for such parties or the Trust Advisor, as applicable, to do so in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such party or the Trust Advisor, as applicable, and not otherwise subject to a confidentiality obligation and/or (d) such disclosure is required by applicable law, as evidenced by an opinion of counsel (which, in the case of any opinion of counsel for the Trust Advisor, shall be a Trust Advisor Expense) delivered to the Trust Advisor, the Special Servicer, the Controlling Class Representative (or with respect to an A/B Whole Loan or a Loan Pair the Applicable Control Party), as applicable, the Certificate Administrator and the Trustee. Notwithstanding the foregoing, the Trust Advisor will be permitted to share Privileged Information with its Affiliates and any subcontractors of the Trust Advisor to the extent reasonably necessary to perform the Trust Advisor’s obligations under this Agreement and provided such Trust Advisor Affiliates and subcontractors agree in writing prior to their receipt of such Privileged Information to be bound by the same confidentiality provisions applicable to the Trust Advisor. Subject to the terms and conditions in this Agreement related to Privileged Information, the Trust Advisor agrees that it shall use information received from the Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.
(i) The Trust Advisor shall be entitled to the Trust Advisor Fee. In addition, the Trust Advisor Consulting Fee shall be payable to the Trust Advisor with respect to each Major Decision as to which the Trust Advisor has consultation rights. The Trust Advisor Fee and any Trust Advisor Consulting Fees (to the extent such Trust Advisor Consulting Fee is actually received from the related Mortgagor) shall be payable from funds on deposit in the Collection Account as provided in Section 5.2. When the Trust Advisor has consultation rights with respect to a Major Decision under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Trust Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision, but only to the extent not prohibited by the related Mortgage Loan documents. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Trust Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard, but in no event shall the Master Servicer or the Special Servicer take any enforcement action with respect
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to the collection of such Trust Advisor Consulting Fee other than requests for collection; provided, that the Master Servicer or the Special Servicer, as applicable, shall consult with the Trust Advisor prior to any such waiver or reduction.
(j) The Trust Advisor shall be entitled to reimbursement of any Trust Advisor Expenses provided for pursuant to Section 10.11, such amounts to be reimbursed from amounts on deposit in the Distribution Account as provided by Section 5.3, but solely to the extent payable from amounts available as set forth in Section 6.11. The Trust Advisor hereby acknowledges and agrees that in no event will any Trust Advisor Expenses be payable from, and the Trust Advisor hereby waives any and all claims to, amounts distributable in respect of, the Control Eligible Certificates. Each successor Trust Advisor shall be required to acknowledge and agree to the terms of the preceding sentence.
(k) Except as set forth in this Agreement, the Trust Advisor, any successor trust advisor and any of their respective affiliates shall not accept any fees or other compensation or other consideration (x) in respect of the Trust Advisor’s (or successor trust advisor’s) obligations under this Agreement or the performance thereof or (y) in connection with the appointment of a successor special servicer or the recommendation by the Trust Advisor (or successor trust advisor) for a replacement special servicer to become the special servicer under this Agreement.
(l) Notwithstanding anything in this Agreement to the contrary (i) the Trust Advisor’s assessment of the Special Servicer’s performance shall be based on the provisions of this Agreement and (ii) so long as LNR Partners, LLC is acting as Special Servicer, LNR Partners, LLC shall provide the Trust Advisor reasonable access, at LNR Partners, LLC’s offices during normal business hours, to LNR Partners, LLC’s policies and procedures. The Trust Advisor will be permitted to review such policies and procedures but will not be permitted to retain hard copies and will not be provided with any electronic copies or soft copies. The Trust Advisor shall keep all information contained in the policies and procedures strictly confidential, except (A) the Trust Advisor may disclose such information if (i) such information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the Trust Advisor, or (ii) such disclosure is required by applicable law, as evidenced by an opinion of counsel (which shall be a Trust Advisor Expense) delivered to the Trust Advisor and the Special Servicer, and (B) the Trust Advisor may disclose a particular portion of the policies and procedures solely when necessary to support specific conclusions concerning allegations of material deviations from the Servicing Standard (i) in the Trust Advisor Annual Report, or (ii) in connection with a recommendation by the Trust Advisor to replace LNR Partners, LLC as the Special Servicer pursuant to the provisions of this Agreement. Notwithstanding the foregoing, the Trust Advisor will be permitted to share such information with its Affiliates and any subcontractors of the Trust Advisor to the extent reasonably necessary to perform the Trust Advisor’s obligations under this Agreement and provided such Trust Advisor Affiliates and subcontractors agree in writing prior to their receipt of such information to be bound by the same confidentiality provisions applicable to the Trust Advisor. The Trust Advisor’s assessment may not take into account the fact that LNR Partners, LLC limited the Trust Advisor’s access to the LNR Partners, LLC written policies and procedures pursuant to the provisions of this Agreement. Nothing set forth herein shall limit or affect the scope of the Trust Advisor’s platform level review in connection with its preparation
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of the Trust Advisor Annual Report, provided that the Trust Advisor’s access to or reliance upon LNR Partners, LLC’s written policies and procedures shall be subject to the terms of this paragraph. During any period when the Special Servicer is not LNR Partners, LLC or an affiliate of LNR Partners, LLC, the requirements and limitations contained in this paragraph shall be null and void, and the Trust Advisor shall have adequate and timely access to the policies and procedures of any successor special servicer as the Trust Advisor determines necessary to fulfill its duties under this Agreement.
Section 10.6 Representations, Warranties and Covenants of the Trust Advisor.
(a) The Trust Advisor hereby represents and warrants to and covenants with each other party to this Agreement and for the benefit of the Certificateholders, as of the Closing Date:
(i) the Trust Advisor is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of Delaware;
(ii) the Trust Advisor has the full power and authority to execute, deliver, perform, and to enter into and consummate all transactions and obligations contemplated by this Agreement; the Trust Advisor has duly and validly authorized the execution, delivery and performance by it of this Agreement and this Agreement has been duly executed and delivered by the Trust Advisor; and this Agreement, assuming the due authorization, execution and delivery thereof by the other parties hereto, evidences the valid and binding obligation of the Trust Advisor enforceable against the Trust Advisor in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, conservatorship, reorganization, insolvency, moratorium, receivership and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and to matters of public policy with respect to indemnification or contribution as to violations of securities laws;
(iii) the execution and delivery of this Agreement by the Trust Advisor, the consummation by the Trust Advisor of the transactions contemplated hereby, and the fulfillment of or compliance by the Trust Advisor with the terms and conditions of this Agreement will not (A) result in a breach of any term or provision of its organizational documents or (B) conflict with, result in a breach, violation or acceleration of, or result in a default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or any law, governmental rule, regulation, or judgment, decree or order applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the best of the Trust Advisor’s knowledge, threatened, against it, the outcome of which, in the Trust Advisor’s reasonable judgment, could reasonably be expected to materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to perform any of its obligations hereunder in accordance with the terms hereof; and
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(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by it of, or compliance by it with, this Agreement, or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same or will obtain the same prior to the time necessary to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified as a foreign corporation or licensed in one or more states does not materially and adversely affect the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth in this Section 10.6 shall survive the execution and delivery of this Agreement.
Any cause of action against the Trust Advisor arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Trust Advisor by any of the Depositor, the Trustee, the Master Servicer, the Special Servicer or the Certificate Administrator. The Trust Advisor shall give prompt notice to each other party to this Agreement and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) of the occurrence, or the failure to occur, of any event that, with notice, or the passage of time or both, would cause any representation or warranty in this Section to be untrue or inaccurate in any respect.
Section 10.7 Merger or Consolidation of the Trust Advisor. Any Person into which the Trust Advisor may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Trust Advisor shall be a party, or any Person succeeding to the business of the Trust Advisor, shall be the successor of the Trust Advisor hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that the successor or surviving Person is an Eligible Trust Advisor. If the conditions to the proviso in the foregoing sentence are not met, the Trustee may terminate the successor or surviving Person as Trust Advisor, such termination to be effected in the manner set forth in Section 10.12. The successor or surviving Person shall provide prompt written notice of the merger or consolidation to the Trustee, the Certificate Administrator and the 17g-5 Information Provider.
Notwithstanding the foregoing, if, and for so long as, the Trust, or, with respect to any Serviced Companion Loan, the trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement, is subject to the reporting requirements of the Exchange Act, the Trust Advisor may not remain the Trust Advisor under this Agreement after (x) being merged or consolidated with or into any Prohibited Party, or (y) transferring all or substantially all of its assets to any Prohibited Party, unless (i) the Trust Advisor is the surviving entity of such merger, consolidation or transfer or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld (and if, within forty-five (45) days following the date of delivery of a notice by the Trust Advisor to the Depositor of any merger or similar transaction described in the preceding paragraph, the Depositor shall have failed to notify the Trust Advisor of the Depositor’s determination to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent).
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Section 10.8 Resignation of Trust Advisor.
(a) Except as otherwise provided in Section 10.8(b), the Trust Advisor shall not resign from the obligations and duties hereby imposed on it unless it determines that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Trust Advisor shall be evidenced by an opinion of counsel to such effect delivered to the Master Servicer, the Certificate Administrator, the Depositor and the Trustee.
(b) The Trust Advisor (at its cost and expense and not at the expense of the Trust) shall have the right to resign from its obligations and duties under this Agreement and recommend the replacement of the Trust Advisor (which shall be an Eligible Trust Advisor), provided that the Trust Advisor shall (i) pay, or reimburse the Certificate Administrator or the Trust, as applicable, for, all of the reasonable costs and expenses to be incurred by the Trust Advisor, the Certificate Administrator and/or the Trust, as applicable, in connection with obtaining any vote to replace the Trust Advisor (and such fees and expenses will not constitute Additional Trust Expenses), (ii) pay any amounts in the nature of Trust Advisor Fees, costs or expenses, to the extent such amounts are in excess of the amounts being paid to the Trust Advisor prior to its resignation, necessary to obtain or payable to a replacement Trust Advisor, (iii) except in the case of a recommended replacement that is an Eligible Trust Advisor (in which event no consent shall be required), obtain the consent (which shall be obtained prior to any solicitation of votes described below) of the Controlling Class Representative during any Subordinate Control Period and any Collective Consultation Period, which consent shall be deemed to have been granted if no objection is made within thirty (30) days following the Controlling Class Representative’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn and (iv) except in the case of a recommended replacement that is an Eligible Trust Advisor (in which event no vote seeking consent shall be conducted), obtain the requisite vote of Certificateholders as provided below. In such event, the Trust Advisor shall deliver to the Certificate Administrator, with a copy to the Trustee, the 17g-5 Information Provider and the Special Servicer, a written recommendation (along with relevant information justifying its recommendation) of a suggested replacement Trust Advisor, which recommendation shall include a ballot that identifies the proposed replacement and that allows the Holders of Principal Balance Certificates to approve or object to such recommendation and, further, shall clearly and conspicuously include on the face thereof the following legend (in all capital letters and at least 14 point font): “FAILURE TO AFFIRMATIVELY OBJECT TO THIS RECOMMENDATION WITHIN 180 DAYS OF THE DATE HEREOF SHALL BE DEEMED AN AFFIRMATIVE CONSENT TO REPLACE THE EXISTING TRUST ADVISOR WITH THE RECOMMENDED SUCCESSOR TRUST ADVISOR IDENTIFIED IN THIS RECOMMENDATION”. The Certificate Administrator shall post such written recommendation on the Certificate Administrator’s Website. Except in the case of a recommended replacement that is an Eligible Trust Advisor, the Trust Advisor’s recommendation of a successor Trust Advisor must be confirmed by an affirmative vote of Holders of Principal Balance Certificates evidencing at least 66-2/3% of the aggregate Voting Rights of all Principal Balance Certificates; provided that if any Holder of Principal Balance Certificates does not affirmatively object within 180 days of the date on which such written recommendation was posted on the Certificate Administrator’s Website, then such Holder shall
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be deemed to have consented to the replacement of the existing Trust Advisor with the recommended successor Trust Advisor. If so confirmed, the Trustee shall terminate all of the rights and obligations of the then existing Trust Advisor under this Agreement and appoint the successor Trust Advisor approved or deemed approved by the Certificateholders (provided that such successor trust advisor is an Eligible Trust Advisor). The terminated or resigning Trust Advisor’s rights to indemnification, payment of outstanding fees, reimbursement of expenses and other rights set forth in this Agreement shall survive its termination or resignation.
(c) No resignation pursuant to this Section 10.8 shall become effective until a successor Trust Advisor appointed as provided in Section 10.12(d) shall have assumed the Trust Advisor’s responsibilities and obligations under this Agreement.
Section 10.9 Assignment or Delegation of Duties by Trust Advisor. Except as provided in Section 10.7, the Trust Advisor may not assign or delegate its rights and duties under this Agreement.
Section 10.10 Limitation on Liability of the Trust Advisor and Others.
(a) Neither the Trust Advisor nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Trust Advisor shall be under any liability to any other party to this Agreement, the Holders of the Certificates, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan for any action taken or for refraining from the taking of any action in good faith and using reasonable business judgment; provided that this provision shall not protect the Trust Advisor or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the information and reports delivered by or at the direction of the Master Servicer or any Affiliate, director, officer, employee, member, manager or agent of the Master Servicer) respecting any matters arising hereunder. The Trust Advisor shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties under this Agreement.
(b) In addition, the Trust Advisor shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Advisor and conforming to the requirements of this Agreement. Neither the Trust Advisor, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Trust Advisor or such officer was negligent in ascertaining the pertinent facts. Neither the Trust Advisor, nor any Affiliate, director, officer, employee, member, manager or agent, shall be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement. The Trust Advisor shall be entitled to rely on reports and information supplied to it by the Master Servicer, the
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Special Servicer and the related Mortgagors and shall have no duty to investigate or confirm the accuracy of any such report or information.
(c) The Trust Advisor shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by any other party to this Agreement in this Agreement. The Trust shall indemnify and hold harmless the Trust Advisor from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Trust Advisor may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Trust Advisor may consult with counsel, and any written advice or opinion of counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; and
(iii) the Trust Advisor, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper reasonably believed or in good faith believed by it to be genuine.
(e) The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor shall be indemnified by the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee and the Certificate Administrator, as the case may be, and held harmless against any loss, liability or expense including reasonable attorneys’ fees incurred in connection with any legal action relating to the Depositor’s, the Master Servicer’s, the Special Servicer’s, the Custodian’s, the Trustee’s or the Certificate Administrator’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard by such Person of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Trust Advisor’s duties hereunder or by reason of negligent disregard of the Trust Advisor’s obligations and duties hereunder. The Trust Advisor shall promptly notify the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee and the Certificate Administrator, if a claim is made by a third party entitling the Trust Advisor to indemnification hereunder, whereupon the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator, in each case, to the extent the claim was made in connection with its willful misfeasance, bad faith or negligence, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trust Advisor). Any failure to so notify the
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Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator shall not affect any rights the Trust Advisor may have to indemnification hereunder or otherwise, unless the interest of the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee or the Certificate Administrator is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor hereunder. Any payment hereunder made by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be, pursuant to this paragraph to the Trust Advisor shall be paid from the Depositor’s, the Master Servicer’s, the Special Servicer’s, the Trustee’s, the Certificate Administrator’s or the Custodian’s, as the case may be, own funds, without reimbursement from the Trust therefor, except achieved through subrogation as provided in this Agreement. Any expenses incurred or indemnification payments made by the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer or the Depositor shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final judgment that (x) the conduct of the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer or the Depositor, as the case may be, was not culpable or (y) such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 10.11 Indemnification; Third-Party Claims.
(a) The Trust Advisor and any Affiliate, director, officer, employee, member, manager or agent of the Trust Advisor shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans (subject to Section 6.11) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to this Agreement, other than any loss, liability or expense (i) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (ii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (iii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. The Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Trust Advisor, if a court of competent jurisdiction makes a final, non-appealable judgment that the Trust Advisor was found to have acted with willful misfeasance, bad faith or negligence.
(b) The Trust Advisor agrees to indemnify the Trust and each other party to this Agreement and any of their respective directors, officers, employees or agents or Controlling Persons, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the
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Trust or any such party may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Trust Advisor. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer shall immediately notify the Trust Advisor if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Trust Advisor shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trust Advisor shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Special Servicer or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Trust Advisor’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Trust Advisor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee. The Trust Advisor shall not be entitled to reimbursement from the Trust for any payment made by the Trust Advisor pursuant to this paragraph. Any expenses incurred or indemnification payments made by the Trust Advisor shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Trust Advisor was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
Section 10.12 Termination of the Trust Advisor.
(a) A “Trust Advisor Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:
(i) any failure by the Trust Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of its representations or warranties under this Agreement, which failure or breach shall continue unremedied for a period of thirty (30) days after the date on which written notice of such failure or breach shall have been given to the Trust Advisor by the Trustee or the Certificate Administrator or to the Trust Advisor and the Certificate Administrator by the Holders of Certificates having greater than 25% of the aggregate Voting Rights of all then outstanding Certificates; provided that with respect to any such failure or breach which is not curable within such 30-day period, the Trust Advisor shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure or breach within the initial 30-day period and has provided the Trustee and the Certificate Administrator with an Officer’s Certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;
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(ii) any failure by the Trust Advisor to perform in accordance with the Trust Advisor Standard which failure shall continue unremedied for a period of thirty (30) days;
(iii) any failure by the Trust Advisor to be an Eligible Trust Advisor, which failure shall continue unremedied for a period of thirty (30) days;
(iv) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Trust Advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(v) the Trust Advisor shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Trust Advisor or of or relating to all or substantially all of its property;
(vi) the Trust Advisor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or
(vii) if, and for so long as the Trust or a trust created pursuant to an Other Companion Loan Pooling and Servicing Agreement is subject to the reporting requirements of the Exchange Act, the Trust Advisor shall fail to deliver any Regulation AB and any Exchange Act reporting items required to be delivered by it under Article XIII of this Agreement at the times required under such Article.
Upon receipt by the Certificate Administrator of notice of the occurrence of any Trust Advisor Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders by posting such notice on its internet website and by mail, unless the Certificate Administrator has received notice that it has been remedied. If a Trust Advisor Termination Event shall occur, then, and in each and every such case, so long as such Trust Advisor Termination Event shall not have been remedied, either (i) the Trustee may or (ii) upon the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights of all the Certificates, the Trustee shall, terminate all of the rights and obligations of the Trust Advisor under this Agreement, other than rights and obligations accrued prior to such termination, by notice in writing to the Trust Advisor. Notwithstanding anything herein to the contrary, the Depositor shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Trust Advisor Termination Event of which the Depositor becomes aware.
(b) Upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights of all the Certificates requesting a vote to terminate the existing Trust Advisor and to replace the existing Trust Advisor with a proposed successor Trust
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Advisor that is an Eligible Trust Advisor, (ii) payment by such Holders to the Trust, the Certificate Administrator and the Trust Advisor, as applicable, of the reasonable fees and expenses to be incurred by the Trust, the Certificate Administrator and the Trust Advisor, as applicable, in connection with such vote (which fees and expenses will not constitute Additional Trust Expenses) and (iii) obtaining the consent (which shall be obtained prior to any solicitation of votes below) of the Controlling Class Representative during any Subordinate Control Period and any Collective Consultation Period (such consent not to be unreasonably withheld, and such consent shall be deemed to have been granted if no objection is made within ten (10) Business Days following the Controlling Class Representative’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn), the Certificate Administrator shall promptly provide written notice of the requested vote described in clause (i) above to all Certificateholders by (A) posting such notice on its internet website and including in the next Distribution Date Statement a statement that such request was received, and (B) mailing it to their addresses appearing in the Certificate Register. Upon the written direction of Holders of Certificates evidencing more than 75% of all the Voting Rights of the Certificates, the Trustee shall terminate all of the rights (other than the right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder) and obligations of the Trust Advisor under this Agreement by notice in writing to the Trust Advisor; provided that if that written direction is not provided within 180 days of the initial request for a vote to terminate and replace the Trust Advisor, then that written direction will have no force and effect. In addition, the Holders of Certificates evidencing more than 75% of all the Voting Rights of the Certificates may direct the Trustee not to replace the terminated Trust Advisor); provided that if at any time there is no Trust Advisor acting in such capacity, the provisions of this Agreement relating to the rights (other than the right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder) and obligations of the Trust Advisor will have no force and effect; and provided, further, that, if the Holders of at least 25% of the Voting Rights of the Certificates subsequently request a vote to reinstate the role of Trust Advisor and appoint a new Trust Advisor under this Agreement, and the Holders of at least 75% of the Voting Rights of the Certificates vote in favor of such reinstatement and appointment, then a new Trust Advisor will be appointed and references to Trust Advisor in this Agreement will again be applicable. The provisions set forth in the foregoing sentences of this Section 10.12(b) shall be binding upon and inure solely to the benefit of the Certificateholders and the Trustee as between each other. The Trust Advisor shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions; provided that this sentence shall not affect the Trust Advisor’s right to receive accrued and unpaid fees and expense reimbursements and the right to indemnification hereunder. As between the Trust Advisor, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Trust Advisor.
(c) If there are no Classes of Principal Balance Certificates outstanding other than the Control Eligible Certificates, then the Holders of Certificates representing greater than 50% of the junior-most Class of such Classes of Certificates outstanding may elect to terminate the Trust Advisor without payment of any termination fee by written notice delivered to the Depositor and the Trust Advisor. Upon its receipt of notice from such Holders of their election to so terminate the Trust Advisor, the Trustee shall terminate all of the rights and obligations of the Trust Advisor under this Agreement by notice in writing to the Trust Advisor. If the Trust
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Advisor is terminated pursuant to this Section 10.12(c), then no replacement Trust Advisor will be appointed.
(d) On or after the receipt by the Trust Advisor of written notice of termination pursuant to Section 10.12(a), Section 10.12(b) or Section 10.12(c), or the effectiveness of any resignation by the Trust Advisor pursuant to Section 10.8, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Trust Advisor shall execute any and all documents and other instruments, and do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than fifteen (15) Business Days (or such longer period of time as may be reasonably necessary to find a willing successor trust advisor if no willing successor trust advisor can be identified in such fifteen (15) Business Day period) after (1) the Trust Advisor resigns pursuant to Section 10.8 or (2) the Trustee delivers such written notice of termination to the Trust Advisor pursuant to Section 10.12(a) or Section 10.12(b), the Trustee shall appoint a successor Trust Advisor (to the extent a willing successor trust advisor can be identified) that is an Eligible Trust Advisor (which successor Trust Advisor may be an Affiliate of the Trustee) and shall be the recommended or proposed Trust Advisor in the case of a resignation pursuant to Section 10.8(b) or a termination pursuant to Section 10.12(b). During any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative shall have the right to consent, such consent not to be unreasonably withheld, to any replacement for a Trust Advisor terminated pursuant to Section 10.12(a) (except that such consent will be deemed to have been granted if no objection is made within ten (10) Business Days following the Controlling Class Representative’s receipt of the request for consent and, if granted, such consent cannot thereafter be revoked or withdrawn). If the Trustee is the successor Master Servicer or successor Special Servicer, neither the Trustee nor any of its Affiliates shall be the successor Trust Advisor. If the termination of the Trust Advisor is pursuant to Section 10.12(b), and if the Holders of Certificates representing more than 75% of the aggregate Voting Rights of the Certificates so direct, then the Trustee shall not replace the terminated Trust Advisor (subject to the provisos to the third (3rd) sentence of Section 10.12(b)). Except as contemplated by Section 10.12(b), and except for any consent rights of the Controlling Class Representative expressly set forth in this Article X, the appointment of the successor Trust Advisor shall not be subject to the vote, consent or approval of the Holder of any Class of Certificates. The Trust Advisor shall not at any time be the Depositor, the Master Servicer, the Special Servicer, a Seller or an Affiliate of any of them. If any of such entities becomes the Trust Advisor, including by means of an affiliation arising after the date hereof, the Trust Advisor shall immediately resign, and the Trustee shall appoint a successor Trust Advisor subject to and in accordance with this Section 10.12(d).
Upon any resignation or termination of the Trust Advisor and, if applicable, appointment of a successor Trust Advisor, the Trustee shall, as soon as possible, give written notice thereof to the Special Servicer, the Master Servicer, the Certificate Administrator (who shall promptly post such notice to the Certificateholder’s Website pursuant to Section 5.4), the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 5.7), the Depositor, the Certificateholders and, during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative. If the Trust Advisor resigns or is terminated for any reason, all of its rights and obligations under this Agreement shall terminate, other than any rights or obligations that
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accrued prior to the date of such termination (including the right to receive all fees, expenses and indemnities accrued and owing to it under this Agreement which shall be payable in accordance with the priorities and subject to the limitations set forth herein including, without limitation, Section 6.11).
Section 10.13 Rights of the Holders of a Serviced B Note and Serviced Companion Loan. With respect to each A/B Whole Loan (if any) and Loan Pair (if any), the holder of any related Serviced B Note and the holder of any related Serviced Companion Loan shall have such consent rights or consultation rights, if any, during the specified time periods, as are set forth in the related Intercreditor Agreement.
Notwithstanding the foregoing, if the Master Servicer or Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that immediate action is necessary to protect the interest of the Certificateholders and the holder of any related Serviced B Note or Serviced Companion Loan (as a collective whole), then the Master Servicer or Special Servicer, as applicable may take any such action without waiting for the response of the holder of the Serviced B Note or holder of the Serviced Companion Loan provided for in the related Intercreditor Agreement.
In addition, with respect to any A/B Whole Loan or Loan Pair, to the extent provided for in the related Intercreditor Agreement, the holder of a Serviced B Note or holder of a Serviced Companion Loan may direct the Master Servicer or Special Servicer, as applicable, to take, or to refrain from taking, such actions as such holder may deem advisable or as to which provision is otherwise made herein. Upon reasonable request, to the extent provided for in the related Intercreditor Agreement, the Master Servicer or Special Servicer, as applicable, shall, with respect to any A/B Whole Loan or Loan Pair, provide the holder of a Serviced B Note or holder of a Serviced Companion Loan with any information in the Master Servicer’s or Special Servicer’s, as applicable, possession with respect to such matters, including its reasons for determining to take a proposed action.
If the holder of a Serviced B Note or holder of a Serviced Companion Loan (in each case for so long as it is the related Loan-Specific Directing Holder) shall direct the Master Servicer or the Special Servicer to take any action (other than those provided for in the related Intercreditor Agreement or in this Agreement), the Master Servicer or the Special Servicer shall be entitled to receive reimbursement from collections on and other proceeds of such Serviced B Note or Serviced Companion Loan for (i) its reasonable out-of-pocket expenses incurred in taking such action and (ii) to the extent that such action constitutes an extraordinary action not in the ordinary course of administering and servicing such mortgage loan, other reasonable costs incurred by the Master Servicer or the Special Servicer in taking such action. The Master Servicer or the Special Servicer shall notify such holder, prior to taking the related action, if the Master Servicer or the Special Servicer anticipates that it will seek reimbursement therefor under the preceding sentence, and of the estimated amount of such reimbursement, and shall further notify such holder if it intends to obtain actual reimbursement in excess of the estimated amount.
Notwithstanding anything herein to the contrary, no advice, direction or objection from the holder of a Serviced B Note or holder of a Serviced Companion Loan, as contemplated by this Agreement, may (and the Master Servicer and Special Servicer, as applicable, shall
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ignore and act without regard to any such advice, direction or objection that the Master Servicer or Special Servicer, as applicable, has determined, in accordance with the Servicing Standard, will) (i) require or cause the Master Servicer or the Special Servicer to violate applicable law, the terms of any Mortgage Loan, any provision of this Agreement or the REMIC Provisions, including the Master Servicer’s or the Special Servicer’s obligation to act in accordance with the Servicing Standard, (ii) result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust, (iii) expose the Trust, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, or any of their respective Affiliates, officers, directors, employees or agents, to any material claim, suit or liability, or (iv) materially expand the scope of the Master Servicer’s or Special Servicer’s responsibilities under this Agreement.
With respect to any Serviced B Note or Serviced Companion Loan, the Master Servicer (if the Serviced B Note or Serviced Companion Loan has not become a Specially Serviced Mortgage Loan and the related Mortgaged Property has not become an REO Property) or the Special Servicer (if the Serviced B Note or Serviced Companion Loan has become a Specially Serviced Mortgage Loan or the related Mortgaged Property has become an REO Property) shall prepare and make available (or to the extent required pursuant to the terms of the related Intercreditor Agreement, deliver) to the holder of such Serviced B Note or Serviced Companion Loan, the related Loan-Specific Directing Holder and the related Non-Directing Holder (or its designee or representative) all notices, reports, statements and communications to be delivered by the holder of the related Mortgage Loan under the Intercreditor Agreement, and shall perform all duties and obligations to be performed by a servicer and perform all servicing-related duties and obligations to be performed by the holder of the related Mortgage Loan pursuant to the related Intercreditor Agreement.
If the holder of any Serviced Companion Loan notifies the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer of any changes in the name and contact information of the holder of such Serviced Companion Loan, the party receiving such information shall promptly notify the other such parties thereof. The Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer may each conclusively rely on the information so provided to it by any other such party regarding identity and/or contact information of the holder of any Serviced Companion Loan, and none of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer, as applicable, shall have any liability for notices or reports not sent to the correct holder of any Serviced Companion Loan or any obligation to obtain the consent of or consult with the correct holder of any Serviced Companion Loan to the extent any other such party or the holder of such Serviced Companion Loan has not provided updated or correct information regarding the holder of such Serviced Companion Loan or has not provided the most recent identity and/or contact information regarding the holder of such Serviced Companion Loan to the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer, as applicable.
Section 10.14 Rights of Non-Directing Holders. With respect to each Loan Pair (as and to the extent provided for under the related Intercreditor Agreement), the Master Servicer or the Special Servicer, as applicable, shall:
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(a) consult with the related Non-Directing Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Non-Directing Holder (or its designee or representative) requests consultation with respect to any “major decision” or “major action” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Pair, as applicable, and to consider alternative actions recommended by such Non-Directing Holder (or its designee or representative); provided, that, subject to the related Intercreditor Agreement, if the related Non-Directing Holder fails to respond within ten (10) Business Days from the delivery to the related Non-Directing Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, or any other communication relating to a proposed action, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Non-Directing Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Non-Directing Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” or “major action” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the holder of the related Serviced Companion Loan. Unless otherwise specified in the related Intercreditor Agreement, neither the Master Servicer nor the Special Servicer shall be obligated at any time to follow or take any alternative actions recommended by the Non-Directing Holder; and
(b) in addition to the foregoing non-binding consultation rights, as and to the extent provided for in the related Intercreditor Agreement, the Non-Directing Holder shall have the right to annual conference calls with the Master Servicer or the Special Servicer upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related A/B Whole Loan or Loan Pair, as applicable, are discussed.
ARTICLE
XI
PURCHASE AND TERMINATION OF THE TRUST
Section 11.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans.
(a) The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) or (iii) voluntary exchange by the Sole Certificateholder of all
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the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) below; provided that in no event shall the Trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.
(b) If on any date the Aggregate Stated Principal Balance of the Mortgage Loans is less than or equal to 1.0% of the initial Aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date, the Master Servicer shall give the Trustee, the Custodian, the Certificate Administrator and the 17g-5 Information Provider notice of such date. The Certificate Administrator shall promptly forward such notice to the Trustee, the Custodian, the Depositor, the Holders of a majority of the most subordinate Class of REMIC III Regular Certificates or Exchangeable Certificates then outstanding (for this purpose considering each Class of the Class A-S, Class B and Class C Certificates together with the portion of the Class PST Certificates representing an interest in the EC REMIC III Regular Interest bearing the same alphabetic designation), the Special Servicer, the Master Servicer and the Holders of the Class R Certificates. The Holders of a majority of the most subordinate Class of REMIC III Regular Certificates or Exchangeable Certificates then outstanding (for this purpose considering each Class of the Class A-S, Class B and Class C Certificates together with the portion of the Class PST Certificates representing an interest in the EC REMIC III Regular Interest bearing the same alphabetic designation), the Special Servicer, the Master Servicer and the Holder of Certificates representing a majority interest in the Class R Certificates, in such priority (and in the case of the Class R Certificateholders, a majority of the Class R Certificateholders), may purchase, in whole only, the Mortgage Loans (in the case of any A/B Whole Loan or Loan Pair, subject to the rights of the holder of the related Serviced B Note or Serviced Companion Loan provided for in the related Intercreditor Agreement) and any other property, if any (including, without limitation, any REO property), remaining in the Trust. If any party desires to exercise such option, it will notify the Certificate Administrator who shall notify any party with a prior right to exercise such option. If any party that has been provided notice by the Certificate Administrator (excluding the Depositor) notifies the Certificate Administrator within ten (10) Business Days after receiving notice of the proposed purchase that it wishes to purchase the assets of the Trust, then such party (or, if more than one of such parties notifies the Certificate Administrator that it wishes to purchase the assets of the Trust, the party with the first right to purchase the assets of the Trust) may purchase the assets of the Trust in accordance with this Agreement. Upon the Certificate Administrator’s receipt of the Termination Price set forth below, the Certificate Administrator shall promptly notify the Trustee and the Custodian in writing of its receipt thereof, and the Trustee shall thereupon direct the Custodian promptly to release or cause to be released to the Master Servicer for the benefit of the Person(s) exercising the option set forth in this Section 11.1(b) the Mortgage Files pertaining to the Mortgage Loans. The “Termination Price” shall equal 100% of the aggregate Unpaid Principal Balances of the Mortgage Loans (other than REO Mortgage Loans and Mortgage Loans as to which a Final Recovery Determination has been made) on the day of such purchase plus accrued and unpaid interest thereon at the applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee Rate if the Master Servicer is the purchaser), to the Due Date for each Mortgage Loan ending in the Collection Period with respect to which such purchase occurs, plus unreimbursed Advances and interest on such unreimbursed Advances at the Advance Rate, and the fair market value of any REO Properties and other property remaining in REMIC I. Any person or entity making the purchase shall also
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be responsible for reimbursing the parties to this Agreement for all reasonable out-of-pocket costs and expenses incurred by the parties in connection with such purchase. The Trustee shall consult with the Underwriters and the Initial Purchasers or their respective successors, as advisers, in order for the Trustee to determine whether the fair market value of the property constituting the Trust has been offered; provided that, if an Affiliate of any Underwriter or Initial Purchaser is exercising its right to purchase the Trust assets, the Trustee shall consult with the Special Servicer in order for the Trustee to determine whether the fair market value of the property constituting the Trust has been offered, provided that the Special Servicer is not an Affiliate of any Holder of Class R Certificates, the Master Servicer or the Trustee (the fees and expenses of such determination which shall be paid for by the buyer of the property constituting the Trust). If the Trustee consults with any Underwriter or Initial Purchaser or their respective successors, or with the Special Servicer, in each case pursuant to the immediately preceding sentence, the Trustee shall be entitled to rely conclusively on any written confirmation given by such party as to whether the fair market value of the property constituting the Trust has been offered. As a condition to the purchase of the Trust assets pursuant to this Section 11.1(b), the Person(s) exercising the option must deliver to the Trustee an Opinion of Counsel, which shall be at the expense of such Person(s) stating that such termination will be a “qualified liquidation” under section 860F(a)(4) of the Code. Such purchase shall be made in accordance with Section 11.3. Notwithstanding the foregoing, if the Trustee is required to determine whether an offer represents the fair market value of the property constituting the Trust, unless it is otherwise required to consult with any Underwriter or Initial Purchaser or their respective successors, or with the Special Servicer, in each case pursuant to this Section, the Trustee shall be permitted to designate an independent third party expert (the fees and expenses of which shall be paid for by the buyer of the property constituting the Trust) in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing commercial real estate assets similar to the property constituting the Trust, to determine whether the fair market value of the property constituting the Trust has been offered. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination.
(c) [Reserved]
(d) Following the date on which the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class A-S, Class X-A, Class X-B, Class B, Class PST, Class C and Class D Certificates are retired, the Sole Certificateholder shall have the right to exchange all of its Certificates (other than the Class V and Class R Certificates) for all of the Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated by Section 11.1(a)(iii) by giving written notice to all the parties hereto no later than sixty (60) days prior to the anticipated date of exchange. If the Sole Certificateholder elects to exchange all of its Certificates (other than the Class V and Class R Certificates) for all of the Mortgage Loans and the Trust Fund’s portion of each REO Property remaining in the Trust (and where applicable, subject to the terms of the related Intercreditor Agreement) in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall (i) deposit in the Collection Account an amount in immediately available funds equal to all amounts due and owing to the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trustee, the Trust Advisor and the Certificate Administrator hereunder through the date of the liquidation of the Trust Fund that may be withdrawn from the
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Collection Account pursuant to Section 5.2 or that may be withdrawn from the Distribution Account pursuant to Section 5.3, but only to the extent that such amounts are not already on deposit in the Collection Account and (ii) pay to the Master Servicer an amount equal to (x) the product of (a) the Advance Rate, (b) the Aggregate Certificate Balance of the then-outstanding Principal Balance Certificates as of the date of such exchange and (c) three, divided by (y) 360. In addition, the Servicer shall transfer all amounts required to be transferred to the Excess Interest Sub-account on the Master Servicer Remittance Date related to such Distribution Date in which the final distribution on the Certificates is to occur from the Collection Account. Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Class V and Class R Certificates) on the final Distribution Date, the Certificate Administrator shall upon receipt of a Request for Release from the Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and any REO Properties remaining in the Trust Fund, and the Trust Fund shall be liquidated in accordance with Section 11.2. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the REMIC I for an amount equal to the remaining Certificate Balance of the Principal Balance Certificates, plus accrued, unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of such Certificates and REMIC I Interests.
(e) Upon the termination of the Trust, any Class V Specific Grantor Trust Assets held by the Grantor Trust shall be distributed to the Class V Certificateholders on a pro rata basis.
(f) Upon the sale of the A Note relating to an A/B Whole Loan by the Trust or the payment in full of such A Note, the related Serviced B Note shall no longer be subject to this Agreement and shall no longer be serviced by the Master Servicer or the Special Servicer.
Section 11.2 Procedure Upon Termination of Trust.
(a) Notice of any termination pursuant to the provisions of Section 11.1, specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Certificate Administrator to the Trustee, the 17g-5 Information Provider, the Holders of the Class V and Class R Certificates, the REMIC III Regular Certificates and the Exchangeable Certificates mailed no later than ten (10) days prior to the date of such termination. Such notice shall specify (A) the Distribution Date upon which final distribution on the Class V and Class R Certificates, the REMIC III Regular Certificates and the Exchangeable Certificates will be made, and upon presentation and surrender of such Certificates at the office or agency of the Certificate Registrar therein specified, and (B) that the Record Date otherwise applicable to such Distribution Date is not applicable, distribution being made only upon presentation and surrender of such Certificates at the office or agency of the Certificate Registrar therein specified. The Certificate Administrator shall give such notice to the Depositor, the Trustee and the Certificate Registrar at the time such notice is given to Holders of such Certificates. Upon any such termination, the duties of the Certificate Registrar with respect to the Class V and Class R Certificates, the REMIC III Regular Certificates and the Exchangeable
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Certificates shall terminate and the Trustee shall terminate, or request the Master Servicer and the Certificate Administrator to terminate, the Collection Account and the Distribution Account and any other account or fund maintained with respect to the Certificates, subject to the Certificate Administrator’s obligation hereunder to hold all amounts payable to the Holders of the Class V and Class R Certificates, the REMIC III Regular Certificates and the Exchangeable Certificates in trust without interest pending such payment.
(b) If all of the Holders do not surrender their certificates evidencing the Class V and Class R Certificates, the REMIC III Regular Certificates and the Exchangeable Certificates for cancellation within three (3) months after the time specified in the above-mentioned written notice, then the Certificate Registrar shall give a second (2nd) written notice to the remaining Holders of such Certificates to surrender their Certificates evidencing such Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second (2nd) notice any such Certificates shall not have been surrendered for cancellation, the Certificate Registrar may take appropriate steps to contact the remaining Holders of such Certificates concerning surrender of such Certificates, and the cost thereof shall be paid out of the amounts distributable to such Holders. If within two (2) years after the second (2nd) notice any such Certificates shall not have been surrendered for cancellation, the Certificate Administrator shall, subject to applicable state law relating to escheatment, hold all amounts distributable to such Holders for the benefit of such Holders. No interest shall accrue on any amount held by the Trustee and not distributed to a Holder of such Certificates due to such Certificateholder’s failure to surrender its Certificate(s) for payment of the final distribution thereon in accordance with this Section. Any money held by the Certificate Administrator pending distribution under this Section 11.2 after ninety (90) days after the adoption of a plan of complete liquidation shall be deemed for tax purposes to have been distributed from the REMIC Pools and shall be beneficially owned by the related Holder.
Section 11.3 Additional Trust Termination Requirements.
(a) The Trust and each REMIC Pool shall be terminated in accordance with the following additional requirements, unless at the request of the Master Servicer or the Class R Certificateholders, as the case may be, the Trustee seeks, and the Certificate Administrator subsequently receives an Opinion of Counsel (at the expense of the Master Servicer or the Class R Certificateholders, as the case may be), addressed to the Depositor, the Trustee and the Certificate Administrator to the effect that the failure of the Trust to comply with the requirements of this Section 11.3 will not (i) result in the imposition of taxes on “prohibited transactions” on any REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within eighty-nine (89) days prior to the time of the making of the final payment on the REMIC III Regular Certificates, the Exchangeable Certificates and the Class V and Class R Certificates, the Master Servicer shall prepare and the Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall adopt a plan of complete liquidation of each REMIC Pool, meeting the requirements of a qualified liquidation under the REMIC Provisions, which plan need not be in any special form and the date of which, in general, shall be the date of the notice specified in Section 11.2(a) and shall be specified in a statement attached to the federal income tax return of each applicable REMIC Pool;
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(ii) At or after the date of adoption of such a plan of complete liquidation and at or prior to the time of making of the final payment on the REMIC III Regular Certificates and the Exchangeable Certificates, the Trustee shall sell all of the assets of the Trust for cash at the Termination Price; provided that if the Holders of the Class R Certificates are purchasing the assets of the Trust or REMIC I, the amount to be paid by such Holders may be paid net of the amount to be paid to such Holders as final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the REMIC III Regular Interests, the Certificate Administrator shall distribute or credit, or cause to be distributed or credited, (A) to the Holders of the Class R Certificates all assets of REMIC I remaining after such final payment of the REMIC I Regular Interests, (B) to the Holders of the Class R Certificates all assets of REMIC II remaining after such final payment of the REMIC II Regular Interests and (C) to the Holders of the Class R Certificates all remaining assets of REMIC III (in each case other than cash retained to meet claims); and upon making of the final payment to all Class R Certificates of all remaining assets of each REMIC Pool, and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular Interests, REMIC II Regular Interests or REMIC III Regular Interests, or the final distribution or credit to the Holders of the Class R Certificates, respectively, be made after the 89th day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R Certificates, the Holders thereof hereby (i) authorize the Trustee to take such action as may be necessary to adopt a plan of complete liquidation of each REMIC Pool, and (ii) agree to take such other action as may be necessary to adopt a plan of complete liquidation of the Trust upon the written request of the Depositor, which authorization shall be binding upon all successor Class R Certificateholders.
ARTICLE
XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool and the Grantor Trust, as applicable.
Section 12.1 REMIC Administration.
(a) An election will be made by the Certificate Administrator on behalf of the Trustee to treat the segregated pool of assets consisting of the Mortgage Loans (other than Excess Interest payable thereon), such amounts with respect thereto as shall from time to time be held in the Collection Account, the Reserve Accounts and the Distribution Account (exclusive of the Excess Interest Sub-account), the Insurance Policies and any related amounts in the REO Account and, to the extent of the Trust’s interest therein, any related REO Properties as a REMIC under the Code (such REMIC being herein designated as “REMIC I”), other than any portion of the foregoing amounts allocable to a Serviced B Note or Serviced Companion Loan. Such elections will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in
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which the REMIC I Interests are issued. For purposes of such election, the REMIC I Regular Interests shall be designated as the “regular interests” in REMIC I, and the REMIC I Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC I.
An election will be made by the Certificate Administrator to treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC under the Code (such REMIC being herein designated as “REMIC II”). Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC II Interests are issued. For the purposes of such election, the REMIC II Regular Interests shall be designated as the “regular interests” in REMIC II, and the REMIC II Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC II.
An election will be made by the Certificate Administrator to treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC under the Code (such REMIC being herein designated as “REMIC III”). Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC III Interests are issued. For purposes of such election, the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class D, Class E, Class F, Class G and Class H Certificates, the EC REMIC III Regular Interests and the Class X REMIC III Regular Interests shall be designated as the “regular interests” in REMIC III, and the REMIC III Residual Interest (which shall be evidenced by the Class R Certificates) shall be designated as the sole class of “residual interests” in REMIC III.
The Trustee and the Certificate Administrator shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any of the REMIC Pools other than the REMIC I Interests, the REMIC II Interests and the REMIC III Interests.
Any Threshold Event Collateral posted by a Loan-Specific Directing Holder pursuant to the related Intercreditor Agreement shall be held by the Master Servicer in an outside reserve fund which shall not be an asset of any REMIC, and the Loan-Specific Directing Holder that posted such Threshold Event Collateral shall be the owner of such outside reserve fund, all within the meaning of Treasury Regulation Section 1.860G-2(h). Any such Threshold Event Collateral shall be applied in the same manner as collections on the related Loan Pair or A/B Whole Loan, as applicable, as and to the extent provided for in the related Intercreditor Agreement, including without limitation by means of the Trustee, the Master Servicer or the Special Servicer drawing on any letter of credit delivered as Threshold Event Collateral as and to the extent provided for in the related Intercreditor Agreement.
(b) The Closing Date is hereby designated as the “Startup Day” of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Certificate Administrator shall pay all routine tax related expenses (not including any taxes, however denominated, including any additions to tax, penalties and interest) of each REMIC Pool, excluding any professional fees or extraordinary expenses related
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to audits or any administrative or judicial proceedings with respect to each REMIC Pool that involve the Internal Revenue Service or state tax authorities.
(d) The Certificate Administrator shall cause to be prepared, signed, and timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an application for a taxpayer identification number for such REMIC Pool on Internal Revenue Service Form SS-4. The Certificate Administrator, upon receipt from the Internal Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall promptly forward a copy of such notice to the Depositor and the Master Servicer. The Certificate Administrator shall prepare and file Form 8811 on behalf of each REMIC Pool and shall designate an appropriate Person to respond to inquiries by or on behalf of Certificateholders for original issue discount and related information in accordance with applicable provisions of the Code.
(e) The Certificate Administrator shall prepare and file, or cause to be prepared and filed, all of each REMIC Pool’s federal and state income or franchise tax and information returns as such REMIC Pool’s direct representative, and the Certificate Administrator (or, if necessary, the Trustee) shall sign such returns; the expenses of preparing and filing such returns shall be borne by the Certificate Administrator, except that if additional state tax returns are required to be filed in more than three (3) states, the Certificate Administrator shall be entitled, with respect to any such additional filings, to (i) be paid a reasonable fee and (ii) receive its reasonable costs and expenses, both as amounts reimbursable pursuant to Section 5.2(a)(I)(vi) hereof. Each of the Depositor, the Master Servicer and the Special Servicer shall provide on a timely basis to the Certificate Administrator or its designee such information with respect to the Trust or any REMIC Pool as is in its possession, which the Depositor, the Master Servicer or the Special Servicer, as the case may be, has received or prepared by virtue of its role as Depositor, Master Servicer or the Special Servicer, as the case may be, hereunder and reasonably requested by the Certificate Administrator to enable it to perform its obligations under this subsection, and the Certificate Administrator shall be entitled to conclusively rely on such information in the performance of its obligations hereunder. The Depositor shall indemnify the Trust, the Trustee and the Certificate Administrator for any liability or assessment against any of them or cost or expense (including attorneys’ fees) incurred by them resulting from any error in any of such tax or information returns resulting from errors in the information provided by the Depositor or caused by the negligence, willful misconduct or bad faith of the Depositor in providing any information for which the Depositor is responsible for preparing. The Master Servicer and the Special Servicer shall indemnify the Trustee, the Certificate Administrator and the Depositor for any liability or assessment against the Trustee, the Depositor, the Certificate Administrator or any REMIC Pool and any expenses incurred in connection with such liability or assessment (including attorneys’ fees) resulting from any error in any of such tax or information returns resulting from errors in the information provided by the Master Servicer or the Special Servicer, as the case may be, or caused by the negligence, willful misconduct or bad faith of the Master Servicer or the Special Servicer, as the case may be. The Certificate Administrator shall indemnify the Master Servicer, the Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the Depositor and any REMIC Pool resulting from any error in any of such tax or information returns resulting from errors in the preparation of such returns caused by the negligence, willful misconduct or bad faith of the Certificate Administrator. Each indemnified party shall immediately notify the indemnifying party or parties of the existence of a claim for indemnification under this Section 12.1(e), and provide the
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indemnifying party or parties, at the expense of such indemnifying party or parties, an opportunity to contest the tax or assessment or expense giving rise to such claim, provided that the failure to give such notification shall not affect the indemnification rights in favor of any REMIC Pool under this Section 12.1(e). Any such indemnification shall survive the resignation or termination of the Master Servicer, the Certificate Administrator or the Special Servicer, or the termination of this Agreement.
(f) The Certificate Administrator shall perform on behalf of each REMIC Pool all reporting and other tax compliance duties that are the responsibility of such REMIC Pool under the Code, the REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority. Among its other duties, the Certificate Administrator shall provide (i) to the Internal Revenue Service or other Persons (including, but not limited to, the Transferor of a Class R Certificate, a Disqualified Organization or an agent that has acquired such Class R Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class R Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or the REMIC Provisions.
(g) The Certificate Administrator shall forward to the Depositor copies of quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099 information returns and such other information within the control of the Certificate Administrator as the Depositor may reasonably request in writing. Moreover, the Certificate Administrator shall forward to each Certificateholder such forms and furnish such information within its control as are required by the Code to be furnished to them, shall prepare and file with the appropriate state authorities as may to the actual knowledge of a Responsible Officer of the Certificate Administrator be required by applicable law and shall prepare and disseminate to Certificateholders Internal Revenue Service Forms 1099 (or otherwise furnish information within the control of the Certificate Administrator) to the extent required by applicable law. The Certificate Administrator will make available to any Certificateholder any tax related information required to be made available to Certificateholders pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in the Class R Certificates (or of the greatest percentage of the Class R Certificates if no Holder holds more than 50% thereof) shall be the Tax Matters Person for each of REMIC I, REMIC II and REMIC III. The duties of the Tax Matters Person for each of the REMIC Pools are hereby delegated to the Certificate Administrator, and each Class R Certificateholder, by acceptance of its Class R Certificate, agrees, on behalf of itself and all successor holders of such Class R Certificate, to such delegation to the Certificate Administrator as their agent and attorney in fact. If the Code or applicable regulations prohibits the Certificate Administrator (or, if necessary, the Trustee) from signing any applicable Internal Revenue Service, court or other administrative documents or from acting as Tax Matters Person (as an agent or otherwise), the Certificate Administrator shall take whatever action is necessary for the signing of such documents and designation of a Tax Matters Person, including the designation of the Holder of more than 50% of the Percentage Interests in the Class R Certificates (or of the greatest percentage of the Class R Certificates if no Holder holds more than 50% thereof). The Certificate Administrator shall not be required to expend or risk its own funds or otherwise incur any other financial liability in
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the performance of its duties hereunder or in the exercise of any of its rights or powers (except to the extent of the ordinary expenses of performing its duties under this Agreement), if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Certificate Administrator, the Custodian, the Holders of the Class R Certificates, the Master Servicer and the Special Servicer shall each exercise reasonable care, to the extent within its control, and with respect to each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer, within the scope of its express duties, and shall each act in accordance with this Agreement and the REMIC Provisions in order to create and maintain the status of each REMIC Pool as a REMIC for so long as any REMIC III Regular Certificates or EC REMIC III Regular Interest are outstanding and the Grantor Trust as a grantor trust for so long as any Class V Certificates or Exchangeable Certificates are outstanding.
(j) The Trustee, the Certificate Administrator, the Custodian, the Master Servicer, the Special Servicer and the Holders of Class R Certificates shall not take any action or fail to take any action or cause any REMIC Pool to take any action or fail to take any action if any of such Persons knows or could, upon the exercise of reasonable diligence, know, that, under the REMIC Provisions such action or failure, as the case may be, could (i) endanger the status of any REMIC Pool as a REMIC (ii) result in the imposition of a tax upon any REMIC Pool (including but not limited to the tax on “prohibited transactions” as defined in Code Section 860F(a)(2)) or (iii) endanger the status of the Grantor Trust as a grantor trust unless the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such a tax. Any action required under this Section which would result in an unusual or unexpected expense shall be undertaken at the expense of the party requiring the Trustee, the Certificate Administrator, the Custodian or the Holders of the Class R Certificates to undertake such action.
(k) If any tax is imposed on any REMIC Pool, including, without limitation, “prohibited transactions” taxes as defined in Section 860F(a)(2) of the Code, any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, any taxes on contributions to any REMIC Pool after the Startup Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code or any applicable provisions of state or local tax laws (other than any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e)), then such tax, together with all incidental costs and expenses (including, without limitation, penalties and reasonable attorneys’ fees), shall be charged to and paid by: (i) the Certificate Administrator, if such tax arises out of or results from a breach of any of its obligations under this Agreement; (ii) the Special Servicer, if such tax arises out of or results from a breach by the Special Servicer of any of its obligations under this Agreement; (iii) the Master Servicer, if such tax arises out of or results from a breach by the Master Servicer of any of its obligations under this Agreement; and (iv) the Trust in all other instances. Any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to and paid by the Trust from the net income generated on the related REO Property. Any such amounts payable by the Trust in respect of taxes shall be paid by the Certificate Administrator out of amounts on deposit in the Distribution Account.
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(l) The Certificate Administrator and, to the extent that books and records are maintained by the Master Servicer or the Special Servicer in the normal course of its business, the Master Servicer and the Special Servicer shall, for federal income tax purposes, maintain books and records with respect to each REMIC Pool on a calendar year and on an accrual basis. The books and records must be sufficient concerning the nature and amount of each REMIC Pool’s investments to show that such REMIC Pool has complied with the REMIC Provisions.
(m) None of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall enter into any arrangement by which any REMIC Pool will receive a fee or other compensation for services.
(n) In order to enable the Certificate Administrator to perform its duties as set forth herein, the Depositor shall provide, or cause to be provided, to the Certificate Administrator within ten (10) days after the Closing Date all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes on the valuations and offering prices of the Certificates, including, without limitation, the yield, prepayment assumption, issue prices and projected cash flows of the Certificates, as applicable, and the projected cash flows of the Mortgage Loans. Thereafter, the Depositor shall provide to the Certificate Administrator or its designee, promptly upon request therefor, any such additional information or data within the Depositor’s possession or knowledge that the Certificate Administrator may, from time to time, reasonably request in order to enable the Certificate Administrator to perform its duties as set forth herein. The Certificate Administrator is hereby directed to use any and all such information or data provided by the Depositor in the preparation of all federal and state income or franchise tax and information returns and reports for each REMIC Pool to Certificateholders as required herein. The Depositor hereby indemnifies the Trustee, the Certificate Administrator and each REMIC Pool for any losses, liabilities, damages, claims, expenses (including attorneys’ fees) or assessments against the Trustee, the Certificate Administrator and each REMIC Pool arising from any errors or miscalculations of the Certificate Administrator pursuant to this Section that result from any failure of the Depositor to provide, or to cause to be provided, accurate information or data to the Certificate Administrator (but not resulting from the methodology employed by the Certificate Administrator) on a timely basis and such indemnification shall survive the termination of this Agreement and the termination or resignation of the Certificate Administrator.
The Certificate Administrator agrees that all such information or data so obtained by it are to be regarded as confidential information and agrees that it shall use its reasonable best efforts to retain in confidence, and shall ensure that its officers, employees and representatives retain in confidence, and shall not disclose, without the prior written consent of the Depositor, any or all of such information or data, or make any use whatsoever (other than for the purposes contemplated by this Agreement) of any such information or data without the prior written consent of the Depositor, unless such information is generally available to the public (other than as a result of a breach of this Section 12.1(n)) or is required by law or applicable regulations to be disclosed or is disclosed (i) to independent auditors and accountants, counsel and other professional advisers of the Certificate Administrator and its parent, or (ii) in connection with its rights and obligations under this Agreement.
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(o) At all times as may be required by the Code, the Master Servicer will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each REMIC Pool as “qualified mortgages” as defined in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the “latest possible maturity date” for each Class of the Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class D, Class E, Class F, Class G and Class H Certificates, for each EC REMIC III Regular Interest, for each Class X REMIC III Regular Interest, for each REMIC I Regular Interest and for each REMIC II Regular Interest is the related Rated Final Distribution Date.
Section 12.2 Prohibited Transactions and Activities. None of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer shall permit the sale, disposition or substitution of any of the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the termination of any REMIC Pool in a “qualified liquidation” as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase or substitution contemplated by Article II hereof), nor acquire any assets for the Trust, except as contemplated by Article II hereof, nor sell or dispose of any investments in the Collection Account or Distribution Account for gain, nor accept any contributions to any REMIC Pool (other than a cash contribution during the 3-month period beginning on the Startup Day), unless it has received an Opinion of Counsel (at the expense of the Person requesting such action) to the effect that such disposition, acquisition, substitution, or acceptance will not (A) affect adversely the status of any REMIC Pool as a REMIC or of the regular interests therein, (B) affect the distribution of interest or principal on the Certificates, (C) result in the encumbrance of the assets transferred or assigned to any REMIC Pool (except pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be subject to a tax on “prohibited transactions” or “prohibited contributions” or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, none of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer or the Special Servicer shall permit any modification of a Money Term of a Mortgage Loan (or of a related Serviced B Note or Serviced Companion Loan) unless (i) the Trustee, the Special Servicer, the Certificate Administrator, the Custodian and the Master Servicer have received a Nondisqualification Opinion or a ruling from the Internal Revenue Service (at the expense of the related Mortgagor, any holder of a related Serviced B Note or Serviced Companion Loan or the Trust) to the effect that such modification would not be treated as an exchange pursuant to Section 1001 of the Code (or, if it would be so treated, would not be treated as a “significant modification” for purposes of Section 1.860G-2(b) of the Treasury Regulations) or (ii) such modification meets the requirements set forth in Sections 8.18 or 9.5.
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status. If any REMIC Pool fails to qualify as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or tax as a result of a prohibited transaction or prohibited contribution subject to taxation under the REMIC Provisions due to the negligent performance by either the Trustee
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or the Certificate Administrator of its respective duties and obligations set forth herein, the Trustee or the Certificate Administrator, as the case may be, shall be liable to the REMIC Pools and the Holders of the Class R Certificates for any and all losses, claims, damages, liabilities or expenses (“Losses”) resulting from such negligence and relating to the Class R Certificates; provided, that the Trustee or the Certificate Administrator, as applicable, shall not be liable for any such Losses attributable to the action or inaction of the Master Servicer, the Special Servicer, the Trustee (with respect to the Certificate Administrator), the Certificate Administrator (with respect to the Trustee), the Depositor or the Holders of the Class R Certificates nor for any such Losses resulting from any actions or failure to act based upon reliance on an Opinion of Counsel or from misinformation provided by the Master Servicer, the Special Servicer, the Trustee (with respect to the Certificate Administrator), the Certificate Administrator (with respect to the Trustee), the Depositor or the Holders of the Class R Certificates on which the Trustee or the Certificate Administrator, as the case may be, has relied. The foregoing shall not be deemed to limit or restrict the rights and remedies of the Holders of the Class R Certificates now or hereafter existing at law or in equity. The Trustee or the Certificate Administrator shall be entitled to intervene in any litigation in connection with the foregoing and to maintain control over its defense.
Section 12.5 Grantor Trust.
(a) Any Class V Specific Grantor Trust Assets held in the Grantor Trust, consisting of the right to any Excess Interest in respect of the ARD Mortgage Loans and the Excess Interest Sub-account, shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Class V Grantor Trust Interest, represented by the Class V Certificates, which Class V Certificates, in the aggregate, shall evidence 100% beneficial ownership of such assets from and after the Closing Date.
(b) The EC REMIC III Regular Interests shall be held in the Grantor Trust and have been placed in the Grantor Trust through the efforts of the Underwriters. The EC REMIC III Regular Interests shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Exchangeable Certificates, which Exchangeable Certificates, in the aggregate, will evidence 100% beneficial ownership of such assets from and after the Closing Date. At all times, the Class A-S, Class B and Class C Certificates shall represent beneficial ownership interests in the Class A-S Percentage Interest, the Class B Percentage Interest and the Class C Percentage Interest, respectively, in the Class A-S REMIC III Regular Interest, Class B REMIC III Regular Interest and Class C REMIC III Regular Interest, respectively. At all times, the Class PST Certificates shall represent beneficial ownership interests in the Class PST Components.
(c) Under no circumstances may the Certificate Administrator vary the assets of the Grantor Trust so as to take advantage of variations in the market so as to improve the rate of return of Holders of the Class V Certificates or any Class of Exchangeable Certificates. The Certificate Administrator shall be deemed to hold and shall account for the assets of the Grantor Trust separate and apart from the assets of REMIC I, REMIC II and REMIC III created hereunder.
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(d) The parties intend that the portions of the Trust consisting of the Grantor Trust shall constitute, and that the affairs of the Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify such portion as, a “grantor trust” under the Code, as an “investment trust” under Treasury Regulations Section 301.7701-4(c), and as a “domestic trust” under Treasury Regulations Section 301.7701-7, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, the Certificate Administrator shall furnish or cause to be furnished to Holders of the Class V Certificates and any Class of Exchangeable Certificates and shall file, or cause to be filed with the Internal Revenue Service, Form 1041 (or, if the Grantor Trust is a WHFIT, information will be provided on Form 1099) or such other form as may be applicable, at the time and in the manner required by the Code, indicating their respective shares of income and deductions with respect to such grantor trust, as such amounts accrue or are received, as the case may be.
(e) The Grantor Trust is a WHFIT that is a WHMT.
Section 12.6 Grantor Trust Reporting Requirements.
(a) The Certificate Administrator will report as required under the WHFIT Regulations to the extent such information that is reasonably necessary to enable the Certificate Administrator to do so, and that is not already in its possession, is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that Depository is the only “middleman” as defined by the WHFIT Regulations unless the Depositor provides the Certificate Administrator with the identities of other “middlemen” that are Certificateholders. The Certificate Administrator shall be entitled to rely on the first (1st) sentence of this paragraph and shall be entitled to indemnification in accordance with the terms of this Agreement if the Internal Revenue Service makes a determination that the first (1st) sentence of this paragraph is incorrect.
(b) The Certificate Administrator, in its discretion, shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.
(c) The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information that is not already in its possession being provided to the Certificate Administrator, or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each owner of a class of securities representing, in whole or in part, beneficial ownership of an interest in a WHFIT, by acceptance of its interest in such class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of Certificates, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the
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Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.
(d) To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on an appropriate website the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so published will represent the Rule 144A CUSIPs. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent CUSIPs have been received. Absent the receipt of a CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.
ARTICLE
XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness. Except with respect to Section 13.9, Section 13.10 and Section 13.11, the parties hereto acknowledge and agree that the purpose of this Article XIII is to facilitate compliance by the Depositor with the provisions of Regulation AB and related rules and regulations of the Commission. Neither the Depositor nor the Certificate Administrator shall exercise its right to request delivery of information or other performance under these provisions other than in reasonable good faith, or (except with respect to Section 13.9, Section 13.10 or Section 13.11) for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, or otherwise, and agree to comply with reasonable requests made by the Depositor or the Certificate Administrator in good faith for delivery of information under these provisions on the basis of such evolving interpretations of the requirements of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered” and do not mandate compliance). In connection with the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 transaction, each of the parties to this Agreement shall cooperate fully with the Depositor and the Certificate Administrator, as applicable, to deliver or make available to the Depositor or the Certificate Administrator, as applicable (including any of their assignees or designees), any and all statements, reports, certifications, records and any other information in its possession and necessary in the reasonable good faith determination of the Depositor or the Certificate Administrator, as applicable, to permit the Depositor to comply with the provisions of Regulation AB, together with such disclosure relating to the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the Depositor or the Certificate Administrator, as applicable, to be necessary in order to effect such compliance. None of the Master Servicer, the Trust Advisor, the Trustee, the Custodian, any Sub-Servicer or the Special Servicer are responsible for filing any Exchange Act report with the Commission on behalf of the Trust. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 13.1, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor or the Certificate Administrator, as applicable, to satisfy any related filing requirements. For purposes
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of this Article XIII, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.
Section 13.2 Information to be Provided by the Master Servicer, the Special Servicer, the Custodian, any Primary Servicer and the Certificate Administrator.
(a) For so long as the Trust, and with respect to any Serviced Companion Loan that is deposited into an Other Securitization, such Other Securitization, is subject to the reporting requirements of the Exchange Act, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall (and each of the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, as applicable, shall (a) use commercially reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) (i) notify the Depositor, or the depositor in the Other Securitization with respect to the related Serviced Companion Loan, in writing of (A) any litigation or governmental proceedings pending against the Master Servicer, the Special Servicer, the Trustee, the Custodian, the Certificate Administrator or such Sub-Servicer, as the case may be, or with respect to any of its property, that, in each such case, would be material to Certificateholders and (B) any affiliations of the type described in Item 1119 of Regulation AB or relationships of the type described in Item 1119 of Regulation AB that develop following the Closing Date between the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other parties identified in writing by the requesting party), on the one hand, and any other such party on the other, as the case may be, as such affiliation or relationship relates to the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 transaction (or an Other Securitization, if applicable), and (ii) provide to the Depositor a description of such legal proceedings, affiliations or relationships, in each case, in a form that would enable the Depositor to satisfy its reporting obligations under Item 1117 or 1119 of Regulation AB, as applicable.
(b) In connection with the succession to the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any Person (i) into which the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, may be merged or consolidated, or (ii) which may be appointed as a successor to the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, the Master Servicer, the Special Servicer, the Custodian, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each of the Master Servicer, the Special Servicer, the Custodian or the Trustee, as applicable, shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) provide to the Depositor, at least fifteen (15) calendar days prior to the effective date of such
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succession or appointment, as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, otherwise no later than the effective date of such succession or appointment, (x) written notice to the Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor, all information reasonably requested by the Depositor so that it may comply with its reporting obligation under Item 6.02 of Form 8-K as it relates to the Servicing Function with respect to any class of Certificates.
(c) With respect to any Serviced Companion Loan that is deposited into an Other Securitization, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, to the extent the out-of-pocket cost thereof (including any reasonable attorney fees) is paid or caused to be paid by the applicable party set forth below in this Section 13.2(c), take all actions reasonably requested of it to enable such Other Securitization to comply with Regulation AB. For the avoidance of doubt and without limiting the foregoing, the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, if requested by the depositor for such Other Securitization, provide disclosure (in substantially the same form as the disclosure provided by it in the Prospectus Supplement, to the extent reasonably necessary to comply with Regulation AB) regarding the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, respectively, as reasonably and in good faith determined by the depositor in such Other Securitization to be required by Regulation AB for inclusion in disclosure documents with respect to such Other Securitization, together with an opinion of counsel as to the compliance of such disclosure with the requirements of Regulation AB and indemnification substantially similar to that provided in connection with the offering of the Certificates regarding damages incurred in connection with the non-compliance with the requirements of Regulation AB relating to the disclosure referred to in this sentence.
The out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to this Section 13.2(c) shall be paid or caused to be paid (pursuant to a payment arrangement reasonably acceptable to the delivering party and the receiving party and agreed to as a condition precedent to delivery of such items) by the applicable Seller that transferred the related Serviced Companion Loan to the related Other Depositor for inclusion in such Other Securitization; provided, that if any such information is provided in connection with the termination, removal, resignation or any other replacement of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator under this Agreement, the out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, pursuant to this Section 13.2(c) shall be paid or caused to be paid by the same party or parties required to pay the costs and expenses relating to such termination, removal, resignation or other replacement pursuant to this Agreement.
(d) If any Person appointed as a subcontractor or agent of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian or the Certificate Administrator (whether appointed directly by such party or by a Sub-Servicer or subcontractor or agent) would be a Servicing Function Participant, the Master Servicer, the Special Servicer, the
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Trust Advisor, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall promptly following request provide to the Depositor and the Certificate Administrator a written description (in form and substance satisfactory to the Depositor) of the role and function of such Person, which description shall include (i) the identity of such subcontractor, and (ii) which elements of the Servicing Criteria will be addressed in the assessments of compliance to be provided by such subcontractor or agent. In addition, except with respect to any Seller Sub-Servicer under a sub-servicing agreement effective as of the Closing Date, if any Sub-Servicer, or any subcontractor or agent described above, would be a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, the engagement of such Person in such capacity shall not be effective unless and until five (5) Business Days have elapsed following the delivery of notice of the proposed engagement and the related agreement to the Depositor and the Certificate Administrator. Such notice shall contain all information reasonably necessary, and in such form as may be necessary, to enable the Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to Section 13.7 (if such reports under the Exchange Act are required to be filed under the Exchange Act).
(e) Each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) terminate, in accordance with the related sub-servicing agreement, any Sub-Servicer with which it has entered into such sub-servicing agreement, if such Sub-Servicer is in breach of any of its obligations under such sub-servicing agreement whose purpose is to facilitate compliance by the Depositor with the reporting requirements of the Exchange Act or with the provisions of Regulation AB and the related rules and regulations of the Commission; and (ii) cause each such sub-servicing agreement to entitle the Depositor to terminate such sub-servicing agreement upon any such breach without the consent of any other Person. The Depositor is hereby authorized to exercise the rights described in the preceding clause (ii) in its sole discretion.
Section 13.3 Filing Obligations. The Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer shall (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer, as applicable, shall (a) use commercially reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act.
Section 13.4 Form 10-D Filings.
Within 15 calendar days after each Distribution Date (or, if such 15th day is not a Business Day, the immediately preceding Business Day) (the “10-D Filing Deadline”) (subject to permitted extensions under the Exchange Act), the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act and as approved by the Depositor. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto.
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Any necessary disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the immediately succeeding paragraph, be reported by the parties set forth on Schedule XI and directed to the Depositor and the Certificate Administrator (or the Master Servicer, as specified in the immediately succeeding paragraph) for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure which is to be reported by it as set forth on Schedule XI) absent such reporting, direction and approval. The Certificate Administrator shall include in any Form 10-D filed by it (i) to the extent such information is provided to the Certificate Administrator by the Depositor for inclusion therein, (a) the information required by Rule 15Ga-1(a) under the Exchange Act concerning all assets of the Trust that were subject of a demand to repurchase or replace for breach of the representations and warranties and (b) a reference to the most recent Form ABS-15G filed by the Depositor and each Seller, if applicable, and the Commission assigned “Central Index Key” number for each such filer, (ii) to the extent such information is provided to the Certificate Administrator by the Master Servicer for inclusion therein within the time period described in the immediately succeeding paragraph, the balances of the Collection Account and any REO Account as of the related Distribution Date and as of the immediately preceding Distribution Date and (iii) the balances of the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Reserve Account and the TA Unused Fees Account, in each case as of the related Distribution Date and as of the immediately preceding Distribution Date. The Certificate Administrator and the Depositor shall be entitled together to determine the manner of the presentation of such information (including the dates as of which such information is presented) in accordance with applicable laws and regulations.
For so long as the Trust is subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date, each Person identified on Schedule XI shall be required to provide to the Depositor and the Certificate Administrator (or, with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other Securitization), to the extent known by such person, the form and substance of the corresponding Additional Form 10-D Disclosure set forth on Schedule XI, if applicable, and in a form readily convertible to an EDGAR-compatible format, or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such party; provided, that information relating to any REO Account to be reported under Item 8: Other Information on Schedule XI shall be reported by the Special Servicer to the Master Servicer within four (4) calendar days after the related Distribution Date. Any such Additional Form 10-D Disclosure to be delivered to the Certificate Administrator shall be delivered to it via email at cts.sec.notifications@wellsfargo.com. Each Person set forth on Schedule XI hereto shall include with such Additional Form 10-D Disclosure an Additional Disclosure Notification in the form attached hereto as Schedule XIV. The Certificate Administrator shall provide prompt notice to the Depositor (or, with respect to a Serviced Companion Loan deposited into an Other Securitization, the depositor and the trustee in such Other Securitization) to the extent the Certificate Administrator is notified of an event reportable on Form 10-D for which it has not received the necessary Additional Form 10-D Disclosure from such party. The Certificate Administrator shall have no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule XI of their duties under this paragraph or proactively solicit or procure from any such parties any Additional Form 10-D Disclosure
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information. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by the second (2nd) calendar day after such fifth (5th) calendar day after the related Distribution Date, the Certificate Administrator shall include the form and substance of the Additional Form 10-D Disclosure on the related Form 10-D. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (410) 715-2380 and by email to cts.sec.notifications@wellsfargo.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
On or prior to the end of business on the 11th calendar day (or, if such day is not a Business Day, the immediately preceding Business Day) after the related Distribution Date the Certificate Administrator shall prepare and deliver electronically the Form 10-D to the Depositor for review. No later than the end of business on the 12th calendar day after the related Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to such Form 10-D. No later than the end of business on the 13th calendar day after the related Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of its approval of such Form 10-D, and shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-D, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than the end of business on the 5th calendar day after the related Distribution Date. The Certificate Administrator shall (a) file such Form 10-D not later than 5:30 p.m. (New York City time) on the 10-D Filing Deadline or (b) use commercially reasonable best efforts to file such Form 10-D, if the Certificate Administrator received the signed Form 10-D after the signing deadline set forth in Section 13.14, not later than 5:30 p.m. (New York City time) on the 10-D Filing Deadline; provided that if the Certificate Administrator cannot file the Form 10-D prior to the deadline set forth in the immediately preceding clause (b), the Certificate Administrator shall file such Form 10-D as soon as possible thereafter. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator shall promptly, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-D prepared and filed by the Certificate Administrator. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.4 related to the timely preparation and filing of Form 10-D is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their
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duties under this Section 13.4. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution or file such Form 10-D where such failure results from the Certificate Administrator’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct. Any notices or draft Form 10-D delivered to the Depositor pursuant to this Section 13.4 shall be delivered by email to cmbs_filings@morganstanley.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
Section 13.5 Form 10-K Filing. On or prior to 5:30 p.m. (New York City time) on the 90th calendar day (or if such day is not a Business Day, the immediately preceding Business Day) after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 2016, the Certificate Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for each Certifying Servicer, as set forth under Section 13.9, (ii)(A) the annual reports on assessment of compliance with Servicing Criteria for each Reporting Servicer, as set forth under Section 13.10, and (B) if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.10 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.10 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation as to why such report is not included, (iii)(A) the registered public accounting firm attestation report for each Reporting Servicer, as set forth under Section 13.11, and (B) if any registered public accounting firm attestation report described under Section 13.11 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation as to why such report is not included, and (iv) a Sarbanes-Oxley Certification as set forth in Section 13.6. Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Schedule XII and directed to the Depositor and the Certificate Administrator for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure (other than such Additional Form 10-K Disclosure which is to be reported by it as set forth on Schedule XII) absent such reporting, direction and approval.
For so long as the Trust, and, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, are subject to the reporting requirements of the Exchange Act, no later than March 7th of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2016, each Person identified on Schedule XII shall be required to provide to the Depositor (or, with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other
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Securitization) and the Certificate Administrator, to the extent known by such Person, the form and substance of the corresponding Additional Form 10-K Disclosure as set forth on Schedule XII, if applicable, and in a form that is readily convertible to an EDGAR-compatible form (to the extent available to such party in such format), or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such Person. Any such Additional Form 10-K Disclosure to be delivered to the Certificate Administrator shall be delivered to it via email at cts.sec.notifications@wellsfargo.com. Each Person set forth on Schedule XII hereto shall include with such Additional Form 10-K Disclosure an Additional Disclosure Notification in the form attached hereto as Schedule XIV. The Certificate Administrator shall, at any time prior to filing the related Form 10-K, provide prompt notice to the Depositor to the extent the Certificate Administrator is notified of an event reportable on Form 10-K for which it has not received the necessary Additional Form 10-K Disclosure from such party. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Schedule XII of their duties under this paragraph or to proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by March 15th, the Certificate Administrator shall include the form and substance of the Additional Form 10-K Disclosure on the related Form 10-K. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (410) 715-2380 and by email to cts.sec.notifications@wellsfargo.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
On or prior to the end of business on March 23rd (or, if such day is not a Business Day, the immediately preceding Business Day), the Certificate Administrator shall prepare and deliver electronically a draft copy of the Form 10-K to the Depositor for review. No later than 5:00 p.m. (New York City time) on the 3rd Business Day prior to the 10-K Filing Deadline, a senior officer in charge of securitization of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.” The Depositor hereby instructs the Certificate Administrator, with respect to each Form 10-K, to check “yes” for each item unless the Certificate Administrator has received prior written notice (which may be furnished electronically) from the Depositor that the answer should be “no” for an item which notice shall be delivered to the Certificate Administrator no later than 5:00 p.m. (New York City time) on the 15th calendar day of March in any year in which the Trust is required to file a Form 10-K. The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any Form 10-K. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator shall, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-K prepared and filed by the Certificate Administrator. The signing party at the Depositor can be contacted at the
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address identified in Section 14.5. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.5 related to the timely preparation and filing of Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Article XIII. The Certificate Administrator shall have no liability with respect to any failure to properly prepare, arrange for execution or file such Form 10-K resulting from the Certificate Administrator’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K on a timely basis, not resulting from its own negligence, bad faith or willful misconduct. Any notices or draft Form 10-K delivered to the Depositor pursuant to this Section 13.5 shall be delivered by email to cmbs_filings@morganstanley.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
If a Form 10-K is permitted to be filed notwithstanding any missing information for inclusion therein, the Certificate Administrator shall nonetheless file such Form 10-K and, if Regulation AB (or Form 10-K itself) permits the inclusion of an explanation why such information is missing, the Certificate Administrator shall include such explanation of the circumstances (such explanation to be based solely on such notice regarding the same as may have been delivered to the Certificate Administrator by the person responsible for the missing information).
Section 13.6 Sarbanes-Oxley Certification.
Each Form 10-K shall include a certification (the “Sarbanes-Oxley Certification”), exactly as set forth in Exhibit P-1 attached hereto, required to be included therewith pursuant to the Sarbanes-Oxley Act. Each Reporting Servicer shall provide, and each Reporting Servicer shall (a) use commercially reasonable efforts to cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans to provide, to the Person who signs the Sarbanes-Oxley Certification (the “Certifying Person”), by noon (New York City time) on March 10th (with no grace period) of each year subsequent to the fiscal year in which the Trust is subject to the reporting requirements of the Exchange Act, a certification (each, a “Performance Certification”), in the form attached hereto as Exhibit P-2, upon which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, the “Certification Parties”) can reasonably rely. The senior officer in charge of securitization of the Depositor shall serve as the Certifying Person on behalf of the Trust. Such officer of the Certifying Person can be contacted at the address identified in Section 14.5. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a Performance Certification and a reliance certificate to the Certifying Person pursuant to this Section 13.6 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be.
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Each Performance Certification shall include a reasonable reliance provision enabling the Certification Parties to rely upon each (i) annual compliance statement (as applicable) provided pursuant to Section 13.9, (ii) annual report on assessment of compliance with Servicing Criteria provided pursuant to Section 13.10 and (iii) registered public accounting firm attestation report provided pursuant to Section 13.11 and shall include a certification that each such annual report on assessment of compliance discloses any material instances of noncompliance described to the registered public accountants of such Reporting Servicer to enable such accountants to render the attestation provided for in Section 13.11.
If any Serviced Companion Loan is deposited into a commercial mortgage securitization, and the applicable Reporting Servicer is provided with timely and complete contact information for the parties to the Other Securitization and the person signing the Other Securitization’s Sarbanes-Oxley Certification, such Reporting Servicer shall provide to the Person who signs the Sarbanes-Oxley Certification with respect to an Other Securitization a Performance Certification (which shall address the matters contained in the Performance Certification, but solely with respect to the related Serviced Companion Loan), upon which such certifying person, the entity for which the certifying person acts as an officer, and such entity’s officers, directors and Affiliates can reasonably rely. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use its commercially reasonable efforts to procure a Sarbanes-Oxley back-up certification from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Serviced Mortgage Loan Certificate Administrator, Non-Serviced Mortgage Loan Custodian and the Non-Serviced Mortgage Loan Trustee in form and substance similar to a Performance Certification or in the form specified in the Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such Sarbanes-Oxley back-up certification received by the Master Servicer.
Section 13.7 Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event requiring disclosure (the “8-K Filing Deadline”) under Form 8-K (each a “Reportable Event”), the Certificate Administrator, at the direction of the Depositor, shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the paragraph immediately below, be reported by any party set forth on Schedule XIII to which such Reportable Event relates and such Form 8-K Disclosure Information shall be directed to the Depositor and the Certificate Administrator for approval by the Depositor. The Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information (other than such Form 8-K Disclosure Information which is to be reported by it as set forth on Schedule XIII) absent such reporting, direction and approval.
As set forth on Schedule XIII hereto, for so long as the Trust, and, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, are subject to the Exchange Act reporting requirements, no later than noon (New York City time) on the second
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(2nd) Business Day after the occurrence of a Reportable Event the applicable Person identified on such Schedule XIII shall be required to provide written notice to the Depositor (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor and the trustee in such Other Securitization) and the Certificate Administrator of, to the extent known by such Person, the form and substance of the corresponding Form 8-K Disclosure Information, as set forth on Schedule XIII, if applicable, and in a form that is readily convertible to an EDGAR-compatible form (to the extent available to such party in such format), or in such other form as otherwise agreed by the Depositor, the Certificate Administrator and such Party. Each Person set forth on Schedule XIII hereto shall include with such Form 8-K Disclosure Information an Additional Disclosure Notification in the form attached hereto as Schedule XIV. Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by the close of business on the second (2nd) Business Day after such Reportable Event, the Certificate Administrator shall include the form and substance of the Form 8-K Disclosure Information on the related Form 8-K. The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Any notice delivered to the Certificate Administrator pursuant to this paragraph shall be delivered by facsimile to (410) 715-2380 and by email to cts.sec.notifications@wellsfargo.com, or such other address as may hereafter be furnished by the Certificate Administrator to the other parties in writing.
No later than noon (New York City time) on the 3rd Business Day after the Reportable Event, the Certificate Administrator shall prepare the Form 8-K. No later than the end of business on the 3rd Business Day after the Reportable Event, the Depositor (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor in such Other Securitization) shall sign the Form 8-K. If so directed by the Depositor, the Certificate Administrator shall (a) file such Form 8-K not later than 5:30 p.m. (New York City time) on the 4th Business Day after the related Reportable Event or (b) use reasonable best efforts to file such Form 8-K, if the Certificate Administrator received the signed Form 8-K after the end of business on the 3rd Business Day after the Reportable Event, not later than 5:30 pm (New York City time) on the 4th Business Day after the related Reportable Event; provided that if the Certificate Administrator cannot file the Form 8-K prior to the deadline set forth in the immediately preceding clause (b), the Certificate Administrator shall file such Form 8-K as soon as possible thereafter. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 13.8(b). After filing with the Commission, the Certificate Administrator will, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 8-K prepared and filed by the Certificate Administrator. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.7 related to the timely preparation and filing of Form 8-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Section 13.7. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to
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prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct; provided that the Certificate Administrator shall prepare, arrange for execution and file such Form 8-K where such information from such other party is not received on a timely basis or not provided by such other party. Any notices or draft Form 8-K delivered to the Depositor pursuant to this Section 13.7 shall be delivered by email to cmbs_filings@morganstanley.com, or such other address as may hereafter be furnished by the Depositor to the other parties in writing.
Notwithstanding the second preceding paragraph, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, each Sub-Servicer and each Servicing Function Participant, shall promptly notify (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, each Sub-Servicer and each Servicing Function Participant shall (a) use commercially reasonable efforts to cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to promptly notify) the Depositor and the Certificate Administrator, but in no event later than noon on the second (2nd) Business Day after its occurrence, of any Reportable Event of which it has actual knowledge to the extent such party is identified as a “Responsible Party” on Schedule XIII with regard to such Reportable Event.
Section 13.8 Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports.
(a) On or before January 30 of the first year in which the Certificate Administrator is able to do so under applicable law, the Certificate Administrator, at the direction of the Depositor, shall prepare and file any form necessary to be filed with the Commission to suspend reporting in respect of the Trust under the Exchange Act. After the filing of any such form, the obligations of the parties to this Agreement under Sections 13.2(b), 13.4, 13.5, 13.6 and 13.7 shall be suspended for so long as neither the Trust nor, with respect to any Serviced Companion Loan, the trust in the related Other Securitization, is subject to the reporting requirements of the Exchange Act. The Certificate Administrator shall provide each Reporting Servicer and each Seller with prompt written notice (which notice may be sent via facsimile or by email) if the Certificate Administrator files any such forms that effectuates the suspension of the Trust’s Exchange Act reporting obligations pursuant to this Section 13.8(a).
(b) The Certificate Administrator shall promptly notify the Depositor (which notice may be sent by facsimile or by email and which shall include the identity of those Reporting Servicers who did not deliver such information) and each Reporting Servicer that failed to deliver such information required to be delivered by it under this Agreement, if all, or any portion of, any required disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed pursuant to this Agreement is not delivered to it within the delivery deadlines set forth in this Agreement (including annual compliance statements pursuant to Section 13.9, annual reports on assessment of compliance with servicing criteria pursuant to Section 13.10 and attestation reports pursuant to Section 13.11). If the Certificate Administrator
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is unable to timely file with the Commission all or any required portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement because required disclosure information either was not delivered to it or was delivered to it after the delivery deadlines set forth in this Agreement or for any other reason, the Certificate Administrator shall promptly notify the Depositor (which may be sent by facsimile or by email, and which notice shall include the identity of those Reporting Servicers who either did not deliver such information or delivered such information to it after the delivery deadlines set forth in this Agreement) and each Reporting Servicer that failed to make such delivery. In the case of Form 10-D and Form 10-K, each such Reporting Servicer shall reasonably cooperate with the Depositor and the Certificate Administrator to prepare and file a Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act, which forms shall be filed no later than one calendar day after the original due date for the related Form 10-D or Form 10-K, as applicable. In the case of Form 8-K, the Certificate Administrator shall, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the next Form 10-D that is required to be filed on behalf of the Trust. If any previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the Certificate Administrator shall notify the Depositor and such other parties as may be required and such parties shall reasonably cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any form filed under Section 13.8(a), Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed, in the case of form filed under Section 13.8(a), Form 12b-25 or any amendment to Form 8-K or Form 10-D, by a duly authorized officer of the Depositor, and in the case of Form 10-K, by a senior officer of the Depositor in charge of securitization. The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Certificate Administrator of its duties under this Section 13.8 related to the timely preparation and filing of any form filed under Section 13.8(a), a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) performing their duties under this Section 13.8(b). The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file any such form filed under Section 13.8(a), Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such form filed under Section 13.8(a), Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or willful misconduct.
Section 13.9 Annual Compliance Statements.
The Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, and, if it has made an Advance during the applicable calendar year, the Trustee (each a “Certifying Servicer”) shall (and the Master Servicer, the Special Servicer, the Certificate Administrator and the Custodian shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) deliver electronically to the Depositor, the
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Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), solely in the case of the Special Servicer to the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period) and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, on or before March 10th with respect to any Certifying Servicer or on or before March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), with respect to any Additional Servicer and each Sub-Servicer, or if any such day is not a Business Day, the immediately preceding Business Day (with no cure period), with respect to the Master Servicer, the Special Servicer, the Certificate Administrator or the Custodian, of each year, commencing in March 2016, an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s or Additional Servicer’s, as the case may be, activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s or Additional Servicer’s, as the case may be, performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer or Additional Servicer’s, as the case may be, has fulfilled all its obligations under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Each Certifying Servicer shall, and the Master Servicer, the Special Servicer, the Certificate Administrator and the Custodian shall (a) use commercially reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans to, and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans to, forward a copy of each such statement to the Rating Agencies (subject to Section 5.7) and the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period). Promptly after receipt of each such Officer’s Certificate, the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review such Officer’s Certificate and, if applicable, consult with each Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer in the fulfillment of any of the Certifying Servicer’s obligations hereunder, or any failures by an Additional Servicer retained by such Certifying Servicer in the fulfillment of any of such Additional Servicer’s obligations under the applicable sub-servicing or primary servicing agreement. None of the Certifying Servicers or any Additional Servicer or any Sub-Servicer shall be required to deliver, or to endeavor to cause the delivery of, any such Officer’s Certificate until April 15, in the case of a Certifying Servicer, or April 1, in the case of any Additional Servicer or any Sub-Servicer, in any given year so long as it has received written confirmation (which shall be provided prior to March 1st) from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year.
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If any Serviced Companion Loan is deposited into an Other Securitization, each Certifying Servicer, to the extent applicable, shall provide (within the time periods provided for under the related Other Companion Loan Pooling and Servicing Agreement to permit such requesting party to comply with its reporting obligations thereunder), if requested by a party to the Other Companion Loan Pooling and Servicing Agreement, an Officer’s Certificate as set forth in this Section. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use reasonable best efforts to procure an Officer’s Certificate as set forth in this Section, or in the form specified in the applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement, from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, the Non-Serviced Mortgage Loan Certificate Administrator and the Non-Serviced Mortgage Loan Custodian in form and substance similar to the Officer’s Certificate described in this Section. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such Officer’s Certificate received by the Master Servicer.
Section 13.10 Annual Reports on Assessment of Compliance with Servicing Criteria.
By March 10th of each year, or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), commencing in March 2016, the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of any Mortgage Loan), the Certificate Administrator, the Custodian, the Trust Advisor and, to the extent it is a Servicing Function Participant, the Trustee, each at its own expense, shall furnish electronically (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to furnish, each at its own expense), to the Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period) and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, a report on an assessment of compliance with the Relevant Servicing Criteria with respect to commercial mortgage backed securities transactions taken as a whole involving such party that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 13.5, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement
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that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period.
No later than ten (10) Business Days after the end of each fiscal year for the Trust for which a Form 10-K is required to be filed, the Master Servicer, the Special Servicer, the Custodian and the Trustee (if applicable) shall each forward to the Certificate Administrator, the Depositor and each Seller, and the Certificate Administrator and the Depositor shall each forward to each Seller, the name and address of each Additional Servicer and each Servicing Function Participant engaged by it and (other than with respect to a notice to any Seller) what Relevant Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Additional Servicer or Servicing Function Participant. When the Master Servicer, the Special Servicer, the Custodian, the Trustee (if applicable) and each Sub-Servicer submit their respective assessments by March 1st (or the immediately succeeding Business Day, if applicable) or March 10th, as applicable, to the Certificate Administrator, each such party shall also at such time include, in its submission to the Certificate Administrator, the assessment (and attestation pursuant to Section 13.11) of each Servicing Function Participant engaged by it. Not later than the end of each fiscal year for which the Trust (or any other securitization trust which owns a Serviced Companion Loan or a Non-Serviced Companion Loan) is required to file a Form 10-K and upon written request, the Certificate Administrator shall provide to each Seller written notice of any change in the identity of any party to this Agreement, including the name and address of any new party to this Agreement.
Promptly after receipt of each such report on assessment of compliance, (i) the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review each such report and, if applicable, consult with the Master Servicer, the Custodian, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable) and any Servicing Function Participant as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant, respectively, and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Schedule X and notify the Depositor of any exceptions. None of the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant shall be required to deliver, or to endeavor to cause the delivery of, any such reports until April 15 in the case of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian or the Trustee (if applicable), or April 1 in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation (which shall be provided prior to March 1st) from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide the reports and statements pursuant to this Section 13.10 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing agreement or primary servicing agreement, as the case may be. The parties hereto acknowledge that a material instance of noncompliance with the Relevant Servicing Criteria reported on an assessment of compliance pursuant to this Section 13.10 by the
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Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator, the Trust Advisor or the Trustee shall not, as a result of being so reported, in and of itself, constitute a breach of such parties’ obligations, as applicable, under this Agreement unless otherwise provided for in this Agreement.
If any Serviced Companion Loan is deposited into an Other Securitization, each of the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of any Mortgage Loan), the Custodian, the Certificate Administrator and the Trustee, each at its own expense, shall furnish (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to furnish, each at its own expense), if requested by a party to the Other Companion Loan Pooling and Servicing Agreement, an annual report on assessment of compliance as set forth in this Section and an attestation as set forth in Section 13.11. With respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer shall use commercially reasonable best efforts to procure an annual report on assessment of compliance as set forth in this Section and an attestation as set forth in Section 13.11 from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer, the Non-Serviced Mortgage Loan Certificate Administrator, the Non-Serviced Mortgage Loan Custodian and the Non-Serviced Mortgage Loan Trustee in form and substance similar to the annual report on assessment of compliance described in this Section and the attestation described in Section 13.11 or in the form required under the Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer shall promptly forward to the Certificate Administrator and the Depositor any such annual report on assessment of compliance received by the Master Servicer.
Section 13.11 Annual Independent Public Accountants’ Servicing Report.
By March 10th of each year, or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), commencing in March 2016, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor and, to the extent it is a Servicing Function Participant, the Trustee, each at its own expense, shall cause (and each of the preceding parties, as applicable, shall (a) use commercially reasonable efforts to cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March 1st (or, if such day is not a Business Day, the immediately succeeding Business Day), each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to cause, each at its own expense) a registered public accounting firm (which may also render other services to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee, the Custodian, such Sub-Servicer or such other Servicing Function Participant, as the case may be) that is a member of the American Institute of Certified Public Accountants to furnish electronically a report to the
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Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website pursuant to Section 5.4) and the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 5.7), with a copy to the Controlling Class Representative (during any Subordinate Control Period and any Collective Consultation Period), solely in the case of the Special Servicer to the Trust Advisor (during any Collective Consultation Period and any Senior Consultation Period), and, solely in the case of the Master Servicer and the Special Servicer of any A/B Whole Loan or Loan Pair, to the holder of the related Serviced B Note or Serviced Companion Loan, as applicable, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assessment from such Reporting Servicer of its compliance with the Relevant Servicing Criteria, and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such Reporting Servicer’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria. If an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Such report must be available for general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable) (or any Sub-Servicer or Servicing Function Participant with which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable) has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement)), (i) the Depositor and, if applicable, the depositor under any Other Companion Loan Pooling and Servicing Agreement, shall have the right to review the report and, if applicable, consult with the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian, any Sub-Servicer or any such Servicing Function Participant as to the nature of any material instance of noncompliance by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee, the Custodian or any such Servicing Function Participant with the Servicing Criteria applicable to such Person, and (ii) the Certificate Administrator shall confirm that each assessment submitted pursuant to Section 13.10 is coupled with an attestation meeting the requirements of this Section and notify the Depositor of any exceptions. The Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Trustee (if applicable), the Custodian or any Servicing Function Participant shall not be required to deliver, or to endeavor to cause the delivery of, such reports until April 15 in the case of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian or the Trustee (if applicable), or April 1, in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation from the Certificate Administrator that a Form 10-K is not required to be filed in respect of the Trust for the preceding fiscal year.
Section 13.12 Indemnification.
Each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian and the Trust Advisor (each an “Indemnifying Party”) shall
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indemnify and hold harmless each Certification Party (and, with respect only to clauses (ii), (iii) and (iv) below, any comparable party in an Other Securitization), their respective directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Certification Indemnitee”), against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon: (i) an actual breach by the Indemnifying Party of such Indemnifying Party’s representations under Section 3(xiv) of the related indemnification agreement in the case of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator or under Section 3(xix) of the related indemnification agreement in the case of the Trust Advisor, each dated the Pricing Date, between the related Indemnifying Party, the Depositor, the Underwriters and the Initial Purchasers; (ii) the failure of any Indemnifying Party to perform its obligations under this Article XIII; (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Seller Sub-Servicer) to perform its obligations to the Depositor (or any depositor related to any Other Securitization which owns any Serviced Companion Loan) or the Certificate Administrator (or any trustee or certificate administrator related to any Other Securitization which owns any Serviced Companion Loan) under this Article XIII by the time required after giving effect to any applicable grace period and cure period; (iv) any untrue statement or alleged untrue statement of a material fact contained in any information (x) regarding the Indemnifying Party or any Servicing Function Participant, Additional Servicer or subcontractor engaged by it (other than any Seller Sub-Servicer), (y) prepared by any such party described in clause (x) or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such Indemnifying Party in connection with the performance of such Indemnifying Party’s obligations described in this Article XIII, or the omission or alleged omission to state in any such information a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that such Indemnifying Party shall be entitled to participate in any action arising out of the foregoing and the Depositor shall consult with such Indemnifying Party with respect to any litigation or audit strategy, as applicable, in connection with the foregoing and any potential settlement terms related thereto; (v) negligence, bad faith or willful misconduct on the part of the Indemnifying Party in the performance of such obligations; or (vi) any Deficient Exchange Act Deliverable with respect to such Indemnifying Party.
In addition, each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Sub-Servicer retained by it to cooperate under the applicable subservicing agreement) with the Depositor as necessary for the Depositor to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).
In connection with comments provided to the Depositor from the Commission regarding information (x) delivered by the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or a Sub-Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting
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Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information, which information is contained in a report (an “ARP Report”) filed by the Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s filing of such report, the Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission for inclusion in the Depositor’s response to the Commission, unless such Affected Reporting Party elects, with the consent of the Depositor (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission and negotiate a response and/or resolution with the Commission; provided, that if an Affected Reporting Party is a Servicing Function Participant or Sub-Servicer retained by the Master Servicer or the Special Servicer, as applicable, the Master Servicer or the Special Servicer, as applicable, shall require the Servicing Function Participant or Sub-Servicer to provide it with, and the Master Servicer or the Special Servicer, as applicable, shall be entitled to receive, copies of all material communications pursuant to this paragraph. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission in a timely manner; provided, that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor informed of its progress with the Commission and copy the Depositor on all correspondence with the Commission and provide the Depositor with the opportunity to participate (at the Depositor’s expense) in any telephone conferences and meetings with the Commission and (ii) the Depositor shall cooperate with such Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission with respect to any comments from the Commission relating to such Affected Reporting Party and to notify the Commission of such authorization. The Depositor and such Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor) in connection with the circumstances described in the first sentence of this paragraph (other than those costs and expenses required to be at the Depositor’s expense as set forth above) and any amendments to any ARP Reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor. Each of the Master Servicer, the Special Servicer, the Trust Advisor, the Custodian, the Certificate Administrator and the Trustee shall use commercially reasonable efforts to cause any Servicing Function Participant or Sub-Servicer retained by it to comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.
The Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to indemnify and hold harmless each Certification Party (and any comparable party in an Other Securitization) from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such
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Certification Party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual assessment of servicing criteria or attestation reports pursuant to this Agreement, or the applicable sub-servicing or primary servicing agreement, as applicable, (ii) negligence, bad faith or willful misconduct on its part in the performance of such obligations thereunder or (iii) any Deficient Exchange Act Deliverable with respect to such Additional Servicer.
If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, the Custodian and the Certificate Administrator, each Additional Servicer or other Servicing Function Participant (the “Performing Party”) shall (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Trust Advisor, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to) contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to this Article XIII (or breach of its representations or obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports or otherwise comply with the requirements of this Article XIII) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee shall (a) use commercially reasonable efforts to cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to agree to the foregoing indemnification and contribution obligations.
Promptly after receipt by the Certification Party of notice of the commencement of any action, such Certification Party shall, if a claim in respect thereof is to be made against an Indemnifying Party hereunder, notify in writing the Indemnifying Party of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability which it may have to the Certification Party under this Agreement except to the extent that such omission to notify materially prejudices the Indemnifying Party. In case any such action is brought against the Certification Party, after the Indemnifying Party has been notified of the commencement of such action, such Indemnifying Party shall be entitled to participate therein (at its own expense) and, to the extent that it may wish, shall be entitled to assume the defense thereof (jointly with any other Indemnifying Party similarly notified) with counsel reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed), and after notice from the Indemnifying Party to the Certification Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to the Certification
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Party for any expenses subsequently incurred in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, the Certification Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of the Certification Party unless (i) the Indemnifying Party and the Certification Party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties and, in the case of an investigation by the Commission, any parties that are, or whose reporting materials are, the subject of such investigation) include both the Indemnifying Party and the Certification Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the Indemnifying Party fails within a reasonable period of time to designate counsel that is reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed). In no event shall the Indemnifying Parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) in any one jurisdiction separate from their own counsel for the Certification Party in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent. However, if settled with such consent, the Indemnifying Party shall indemnify the Certification Party from and against any loss or liability by reason of such settlement to the extent that the Indemnifying Party is otherwise required to do so under this Agreement. If an Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the Certification Party (which consent shall not be unreasonably withheld or delayed) or, if such settlement (i) provides for an unconditional release of the Certification Party in connection with all matters relating to the proceeding that have been asserted against the Certification Party in such proceeding by the other parties to such settlement and (ii) does not require an admission of fault by the Certification Party, without the consent of the Certification Party.
Section 13.13 Amendments.
This Article XIII, Schedule X, Schedule XI, Schedule XII and Schedule XIII may be amended by the written consent of all of the parties hereto and, if any such amendment to Schedule X, Schedule XI, Schedule XII and Schedule XIII adds additional reporting obligations for a Seller, with the consent of the related Seller, pursuant to Section 14.3 (without, in each case, any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement) for purposes of complying with Regulation AB or the Trust’s Exchange Act reporting obligations.
Section 13.14 Exchange Act Report Signatures.
Each Form 8-K report, Form 10-D report and Form 10-K report shall be signed by the Depositor. The Depositor shall provide its signature to the Certificate Administrator by electronic or fax transmission (with hard copy to follow by overnight mail) no later than the end of business on the 13th calendar day following the related Distribution Date for Form 10-D, and not later than the end of business on the 3rd Business Day after the Reportable Event for Form 8-K (provided, that in each case the Certificate Administrator shall not file the related form until the Depositor has given its approval thereof). If a Form 8-K or Form 10-D cannot be filed on
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time or if a previously filed Form 8-K or Form 10-D needs to be amended, the Certificate Administrator will follow the procedures set forth in this Article XIII. The signing party at the Depositor can be contacted at the address identified in Section 14.5.
Section 13.15 Significant Obligors.
With respect to any Mortgaged Property that secures a Serviced Companion Loan that the Other Depositor has notified the Master Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization that includes such Serviced Companion Loan, the Master Servicer shall, after receipt of updated net operating income information, (x) promptly deliver the financial statements of such “significant obligor” to the Other Depositor and Other Trustee of such Other Securitization and (y) update the following columns of the CREFC® Loan Periodic Update File related to such “significant obligor” for (a) the next applicable Distribution Date if the Master Servicer receives the updated net operating income information on or before the close of business on the tenth (10th) Business Day prior to the related Determination Date or (b) the subsequent Distribution Date if the Master Servicer receives the updated net operating income information after the close of business on the tenth (10th) Business Day prior to the related Determination Date: BB, BP, BT and BU (corresponding fields 54 – “Preceding Fiscal Year NOI,” 68 – “Most Recent NOI,” 72 – “Most Recent Financial As of Start Date” and 73 – “Most Recent Financial As of End Date”), as such column references and field numbers may change from time to time.
If the Master Servicer does not receive financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten Business Days after the date such financial information is required to be delivered under the related Mortgage Loan documents, the Master Servicer shall notify the Other Depositor with respect to such Other Securitization that includes the related Serviced Companion Loan (or the Master Servicer shall cause a Sub-Servicer to notify such Other Depositor) that it has not received them. The Master Servicer shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements of the related Mortgagor under the related Mortgage Loan documents.
The Master Servicer shall (or shall cause a Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the borrower related to such “significant obligor” to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed by the Other Securitization, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the certificate administrator and Other Depositor related to such Other Securitization. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Companion Loan Pooling and Servicing Agreement.
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ARTICLE
XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 14.2 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
Section 14.3 Amendment.
(a) This Agreement may be amended from time to time by the parties hereto, without notice to or the consent of any of the Holders, (i) to cure any ambiguity or to correct any error, (ii) to cause the provisions herein to conform to or be consistent with or in furtherance of the statements made with respect to the Certificates, the Trust or this Agreement in the Preliminary Prospectus, the Final Prospectus or the Private Placement Memorandum, or to correct or supplement any provision herein which may be inconsistent with any other provisions herein, (iii) to amend any provision hereof to the extent necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or of the Grantor Trust as a grantor trust or to facilitate the administration or reporting thereof) for the purposes of federal income tax law (or comparable provisions of state income tax law), (iv) to make any other provisions with respect to matters or questions arising under or with respect to this Agreement not inconsistent with the provisions hereof, (v) to modify, add to or eliminate the provisions of Article III relating to transfers of Class R Certificates, (vi) to amend any provision herein to the extent necessary or desirable to list the Certificates on a stock exchange, including, without limitation, the appointment of one or more sub-certificate administrators and the requirement that certain information be delivered to such sub-certificate administrators, (vii) to modify the provisions relating to the timing of Advance reimbursements in order to conform them to the commercial mortgage-backed securities industry standard for such provisions if (w) the Depositor, the Trustee and the Master Servicer determine that that industry standard has changed, (x) such modification will not result in an Adverse REMIC Event or Adverse Grantor Trust Event, as evidenced by an Opinion of Counsel, (y) each Rating Agency shall have been provided with a Rating Agency Communication with respect to such modification and (z) during any Subordinate Control Period and any Collective Consultation Period, the Controlling Class Representative consents to such modification, (viii) to modify the procedures relating to Exchange Act Rule 17g-5, provided that if such modification materially increases the obligations of the Trustee, the Certificate Administrator, the Custodian, the 17g-5 Information Provider, the Trust Advisor, the Depositor, the Master Servicer or the Special Servicer, then the consent of such party shall be required; provided, further, that notice of any such amendment must be provided by the Trustee to the 17g-5 Information Provider, who will post such notice to the 17g-5 Information Provider’s Website, and within two (2) Business Days following delivery to the 17g-5 Information Provider, deliver notice to the Rating Agencies, (ix) to modify, alter, amend,
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add to or rescind any of the provisions contained in this Agreement if and to the extent necessary to comply with any rules or regulations promulgated, or any guidance provided, with respect to Rule 15Ga-1 under the Exchange Act, (x) to amend Section 1.7 or the definition of “Rating Agency Confirmation”, (xi) if a TIA Applicability Determination is made, to modify, eliminate or add to the provisions of this Agreement (and, if necessary, the Certificates) to the extent necessary to (A) effect the qualification of this Agreement under the TIA or under any similar federal statute hereafter enacted and to add to this Agreement (and, if necessary, the Certificates) such other provisions as may be expressly required by the TIA, and (B) modify such other provisions of this Agreement (and, if necessary, the Certificates) to the extent necessary to make those provisions consistent with, and conform to, the modifications made pursuant to clause (A); provided that any amendment pursuant to this clause (xi) shall be at the sole cost and expense of the Depositor, or (xii) to make any other amendment which does not adversely affect in any material respect the interests of any Certificateholder (unless such Certificateholder consents). No such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in any material respect the interests of any Certificateholder not consenting thereto without the consent of 100% of the Certificateholders (if adversely affected) or (B) adversely affect the status of any REMIC Pool as a REMIC (or of the Grantor Trust as a grantor trust) for purposes of federal income tax law (or comparable provisions of state income tax law). Prior to entering into any amendment without the consent of Holders pursuant to this paragraph, the Trustee may require an Opinion of Counsel, addressed to the parties to this Agreement, to the effect that such amendment is permitted under this paragraph and a Nondisqualification Opinion.
(b) Reserved.
(c) This Agreement may also be amended from time to time by the parties with the consent of the Holders of Certificates representing not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders; provided that no such amendment may (i) directly or indirectly reduce in any manner the amount of, or delay the timing of, the distributions required to be made on any Certificate without the consent of the Holder of such Certificate, (ii) modify this Section 14.3 without the consent of 100% of the Certificateholders, (iii) eliminate or reduce the Master Servicer’s or the Trustee’s obligation to make an Advance, including without limitation, in the case of the Master Servicer, the obligation to advance on a Serviced B Note or Serviced Companion Loan, or alter the Servicing Standard except as may be necessary or desirable to comply with the REMIC Provisions, (iv) adversely affect the status of any REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a Nondisqualification Opinion) without the consent of 100% of the Certificateholders (including the Class R Certificateholders), or the status of the Grantor Trust as a grantor trust without the consent of 100% of the holders of the Class V Certificates and the Exchangeable Certificates, (v) adversely affect the interests of any Class of Certificateholders (other than as contemplated by clause (i), (ii) or clause (vi) of this sentence) without the consent of Certificateholders entitled to 66-2/3% of the Voting Rights allocated to such Class, and (vi) adversely affect the Voting Rights of any Class of Certificateholders without the consent of Certificateholders entitled to 100% of the Voting Rights allocated to such Class. The Trustee may request, at its option, to receive a Nondisqualification Opinion and an Opinion of Counsel that any amendment pursuant to this
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Section 14.3(c) is permitted by this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment, including those related to Opinions of Counsel, shall be borne by the Depositor if the Trustee is the party requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of Section 14.3(a). In all other cases, the costs and expenses shall be borne by the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the Certificate Administrator shall furnish written notification of the substance of such amendment to each Holder, the other parties hereto and the 17g-5 Information Provider.
(f) It shall not be necessary for the consent of Holders under this Section 14.3 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Holders shall be in writing and shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section 14.3, the parties hereto agree that this Agreement may not be amended in any manner materially adverse to any Underwriter or any Initial Purchaser, the holder of any Serviced B Note or the holder of any Serviced Companion Loan without the prior written consent of such Underwriter or Initial Purchaser, the holder of such Serviced B Note or the holder of such Serviced Companion Loan, respectively.
(h) Notwithstanding any contrary provisions of this Agreement, this Agreement may not be amended in a manner that would increase the obligations or impair the rights of any Seller under the related Mortgage Loan Purchase Agreement without the prior written consent of such Seller.
(i) In addition, if one but not all of the Mortgage Notes evidencing a Joint Mortgage Loan is repurchased by the applicable Sellers, this Agreement may be amended by the parties hereto (at the expense of the party requesting such amendment), without the consent of any Certificateholder, to add or modify provisions relating to the applicable Repurchased Note for purposes of the servicing and administration of such Repurchased Note, provided that the amendment shall not adversely affect in any material respect the interests of the Certificateholders, as evidenced by a Rating Agency Confirmation from each Rating Agency (obtained at the expense of the Repurchasing Seller) with respect to such amendment (or, if no such Rating Agency Confirmation is actually received, by an Opinion of Counsel to such effect). Prior to the effectiveness of such amendment, if one but not all of the Mortgage Notes with respect to a Joint Mortgage Loan is repurchased, the terms of Section 8.30 shall govern the servicing and administration of such Joint Mortgage Loan.
(j) If neither the Depositor nor any successor thereto, if any, is in existence, any amendment under this Section 14.3 shall be effective with the consent of the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer and the Special
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Servicer, in writing, and to the extent required by this Section 14.3, the Certificateholders and the holder of any Serviced B Note or Serviced Companion Loan.
Section 14.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 14.5 Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given when received by:
(a) | in the case of the Depositor, Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention: Stephen Holmes (with a copy to Morgan Stanley Capital I Inc., 1221 Avenue of the Americas, New York, New York 10020, Attention: Legal Compliance Division); |
(b) | (1) in the case of the Master Servicer, Wells Fargo Bank, National Association, Commercial Mortgage Servicing, 1901 Harrison Street, Oakland, California 94612, Attention MSBAM 2015-C23 Asset Manager, Facsimile number: (866) 661-8969 and Wells Fargo Bank, National Association, Commercial Mortgage Servicing, MAC D1086-120, 550 South Tryon Street, 14th Floor, Charlotte, North Carolina 28202, Attention: MSBAM 2015-C23, Facsimile: (704) 715-0036 (with a copy to (i) Wells Fargo Bank, National Association, Legal Department, 301 S. College St., TW-30, Charlotte, North Carolina 28288-0630, Attention: Commercial Mortgage Servicing Legal Support, Reference: MSBAM 2015-C23 and (ii) K&L Gates LLP, Hearst Tower, 47th Floor, 214 North Tryon Street, Charlotte, North Carolina 28202, Attention: Stacy Ackermann, Facsimile: (704) 353-3190) and (2) in the case of the Excluded Mortgage Loan Special Servicer, Wells Fargo Bank, National Association, Commercial Mortgage Special Servicing, MAC D1086, 550 South Tryon Street, Charlotte, North Carolina 28202, Attention: MSBAM 2015-C23 Special Servicing, Facsimile: (704) 715-0055 (with a copy to (i) Wells Fargo Bank, National Association, Legal Department, 301 S. College St., Charlotte, North Carolina 28288-0166, Attention: Commercial Mortgage Servicing Legal Support, Facsimile: (704) 383-0353, Reference: MSBAM 2015-C23 and (ii) K&L Gates LLP, Hearst Tower, 47th Floor, 214 North Tryon Street, Charlotte, North Carolina 28202, Attention: Stacy Ackermann, Facsimile: (704) 353-3190); |
(c) | in the case of BANA, Bank of America, National Association, One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, Facsimile: (646) 855-5044 (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel and Director, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, Facsimile: (404) 736-2127 and with a copy to Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, |
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227 West Trade Street, Charlotte, North Carolina 28202, Facsimile: (704) 348-5200); |
(d) | in the case of MSMCH, Morgan Stanley Mortgage Capital Holdings LLC, 1585 Broadway, New York, New York 10036, Attention: Stephen Holmes (with a copy to Morgan Stanley Mortgage Capital Holdings LLC, 1221 Avenue of the Americas, New York, New York 10020, Attention: Legal Compliance Division); |
(e) | in the case of SMF III, Starwood Mortgage Funding III LLC, 1601 Washington Ave., Suite 800, Miami Beach, Florida 33139, Attention: Leslie K. Fairbanks, Executive Vice President, Facsimile: (305) 695-5449 (with a copy to: LNR Property LLC, 1601 Washington Ave., Suite 800, Miami Beach, Florida 33139, Attention: Vincent Kallaher, Senior Vice President, Facsimile: (305) 695-5449, and a copy to: LNR Property LLC, 1601 Washington Ave., Suite 800, Miami Beach, Florida 33139, Attention: General Counsel, Facsimile: (305) 695 5449, email: srivers@lnrproperty.com, and with respect to certifications delivered pursuant to Section 2.2, with a copy to: Anderson, McCoy & Orta, 100 N. Broadway, 26th Floor, Oklahoma City, Oklahoma 73102, Attention: Vanessa Orta, email: vorta@amopc.com, with a copy to: Marcia Moore-Allen, Facsimile: (405) 236-1448, email: mmoore-allen@amopc.com); |
(f) | in the case of CIBC, CIBC Inc., c/o Canadian Imperial Bank of Commerce, 425 Lexington Avenue, 4th Floor, New York, New York 10017, Attention: Todd Roth, Managing Director, Facsimile: (212) 667-6236; |
(g) | in the case of the General Special Servicer, LNR Partners, LLC, 1601 Washington Avenue, Suite 700, Miami Beach, Florida 33139, Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw, Facsimile: (305) 695-5601 (with a copy to tnealon@lnrproperty.com, srivers@lnrproperty.com and jwarshaw@lnrproperty.com; |
(h) | in the case of the Trust Advisor, Pentalpha Surveillance LLC, 375 N. French Road, Suite 100, Amherst, New York 14228, Attention: Don Simon, Chief Operating Officer, e-mail: don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com (with a copy to Bass, Berry & Sims PLC, 150 Third Avenue South, Suite 2800, Nashville, TN 37201, Attention: Jay Knight, e-mail: jknight@bassberry.com); |
(i) | in the case of the initial Controlling Class Representative, LNR Securities Holdings, LLC, 1601 Washington Avenue, Suite 800, Miami Beach, FL 33139, Attention: Thomas F. Nealon III, Esq., Steven A. Rivers, Esq. and Job Warshaw, Facsimile: (305) 695-5601; |
(j) | in the case of the Trustee, Wilmington Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Account Name MSBAM 2015-C23 (with a copy to be sent contemporaneously via email to cmbstrustee@wilmingtontrust.com); |
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(k) | in the case of the Certificate Administrator or the 17g-5 Information Provider, Wells Fargo Bank, National Association, the Corporate Trust Office thereof. Attention: MSBAM 2015-C23, Facsimile (410) 715-2380; and |
(l) | in the case of the Custodian, Wells Fargo Bank, National Association, 1055 10th Avenue SE, Minneapolis, Minnesota 55414, Attention: Mortgage Document Custody Services, Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23; |
or as to each party such other address as may hereafter be furnished by such party to the other parties in writing. Any notice required or permitted to be mailed to a Holder shall be given by first class mail, postage prepaid, at the address of such Holder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Solely to the extent the provisions herein contemplate electronic delivery of information, such information shall be transmitted via electronic mail with a subject reference of “MSBAM 2015-C23” and an identification of the type of information being provided in the body of such electronic mail:
(a) | in the case of the Depositor, to stephen.holmes@morganstanley.com; |
(b) | in the case of the Master Servicer and the Excluded Mortgage Loan Special Servicer, RAInvRequests@wellsfargo.com (with respect to requests made through the “Rating Agency Q&A Forum and Document Request Tool”) or REAM_InvestorRelations@wellsfargo.com (with respect to requests relating to the Investor Q&A Forum); |
(c) | in the case of CIBC, to todd.roth@us.cibc.com; |
(d) | in the case of BANA, to william.stillerman@bankofamerica.com, leland.f.bunch@baml.com, paul.kurzeja@bankofamerica.com and henry.labrun@cwt.com; |
(e) | in the case of MSMCH, to stephen.holmes@morganstanley.com and james.y.lee@morganstanley.com; |
(f) | in the case of SMF III, to lfairbanks@starwood.com, vkallaher@lnrproperty.com and srivers@lnrproperty.com, and with respect to certifications delivered pursuant to Section 2.2, with copies to vorta@amopc.com and mmoore-allen@amopc.com; |
(g) | in the case of the General Special Servicer, to tnealon@lnrproperty.com, srivers@lnrproperty.com and jwarshaw@lnrproperty.com; |
(h) | in the case of the Trust Advisor, to don.simon@pentalphasurveillance.com and notices@pentalphasurveillance.com; |
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(i) | in the case of the initial Controlling Class Representative, to tnealon@lnrproperty.com, srivers@lnrproperty.com and jwarshaw@lnrproperty.com; |
(j) | in the case of information provided by a Certificateholder to the Trustee, to cmbstrustee@wilmingtontrust.com; |
(k) | in the case of Certificate Administrator, to trustadministrationgroup@wellsfargo.com and cts.cmbs.bond.admin@wellsfargo.com; and |
(l) | in the case of the 17g-5 Information Provider, to the extent not described in Section 5.7, to 17g5informationprovider@wellsfargo.com. |
Section 14.6 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 14.7 Indulgences; No Waivers. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
Section 14.8 Headings Not to Affect Interpretation. The headings contained in this Agreement are for convenience of reference only, and shall not be used in the interpretation hereof.
Section 14.9 Benefits of Agreement. Nothing in this Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder and the Holders of the Certificates, any benefit or any legal or equitable right, power, remedy or claim under this Agreement; provided, that: (i) the Underwriters and Initial Purchasers are intended third-party beneficiaries of Section 5.7, of Section 14.3(g) and of any other provision hereunder that expressly grants them any rights, including the right to indemnity and the right to receive notices, reports and access to information; (ii) each Seller and any related Seller Guarantor is an intended third-party beneficiary of Section 2.3(e), Section 5.7, Section 8.3(h) and any other Section of this Agreement that affords such Seller and any related Seller Guarantor rights hereunder; (iii) the holder of any Serviced Companion Loan and any Serviced B Note, if any, is an intended third-party beneficiary in respect of the rights afforded it hereunder; (iv) the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special
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Servicer are intended third-party beneficiaries of Section 4.4(c), Section 5.2(a)(I)(ii)(B), Section 8.1(f) and Article XIII; (v) each Other Indemnified Party is an intended third-party beneficiary of Section 1.6(j) and Section 5.2(a)(I)(vii); (vi) the Mortgagor(s) set forth in Schedule VI hereto are intended third-party beneficiaries of the fifth and sixth paragraphs of Section 2.3(a); and (vii) if one, but not all, of the Mortgage Notes with respect to any Joint Mortgage Loan is repurchased, the applicable Repurchasing Seller shall be a third party beneficiary of this Agreement to the same extent as if it was a holder of a Serviced Companion Loan, as contemplated by Section 8.30 hereof.
Section 14.10 Reserved.
Section 14.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.
Section 14.12 Intention of Parties. It is the express intent of the parties hereto that the conveyance of the Mortgage Loans and related rights and property to the Trustee, for the benefit of the Certificateholders, by the Depositor as provided in Section 2.1 be, and be construed as, an absolute sale of the Mortgage Loans and related property. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans and related property by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, if, notwithstanding the intent of the parties, the Mortgage Loans or any related property is held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans or any related property, then this Agreement shall be deemed to be a security agreement; and the conveyance provided for in Section 2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the benefit of the Certificateholders, of, and the Depositor hereby grants to the Trustee, for the benefit of the Certificateholders, a security interest in all of the Depositor’s right, title, and interest, whether now owned or existing or hereafter acquired or arising, in, to and under:
(i) the property described in clauses (1)-(4) below (regardless of whether subject to the UCC or how classified thereunder) and all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the property described in clauses (1)-(4) below: (1) the Mortgage Loans identified on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, including all Qualifying Substitute Mortgage Loans, all distributions with respect thereto payable on and after the Cut-Off Date, and the Mortgage Files; (2) the Distribution Account, all REO Accounts, the Collection Account, and the Reserve Accounts, including all property therein and all income from the investment of funds therein (including any accrued discount realized on liquidation of any investment purchased at a discount); (3) the REMIC I Regular Interests and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase Agreements that are permitted to be assigned to the Trustee pursuant to Section 14 thereof;
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(ii) all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property, and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (i) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash Proceeds (as defined in the Uniform Commercial Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Custodian (on the Trustee’s behalf) of the Mortgage Notes, the Mortgages and such other goods, advices of credit, instruments, money, documents, chattel paper or certificated securities and the possession by the Master Servicer (on the Trustee’s behalf) of the letters of credit shall be deemed to be possession by the secured party or possession by a purchaser for purposes of perfecting the security interest pursuant to the Uniform Commercial Code (including, without limitation, Sections 8-301 and 9-315 thereof) as in force in the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or persons holding for, the Trustee, as applicable, for the purpose of perfecting such security interest under applicable law.
The Depositor and, at the Depositor’s direction, the Master Servicer and the Trustee, shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. The Master Servicer shall prepare and make all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee’s security interest in such property, including without limitation (i) continuation statements, and (ii) such other statements as may be occasioned by any transfer of any interest of the Master Servicer or the Depositor in such property. In connection herewith, the Trustee shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction.
Section 14.13 Recordation of Agreement. This Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere. Such recordation, if any, shall be effected by the Master Servicer at the expense of the Trust as an Additional Trust Expense, but only upon direction of the Depositor accompanied by an opinion of counsel to the effect that such recordation materially and beneficially affects the interests of the Certificateholders of the Trust.
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Section 14.14 Rating Agency Surveillance Fees. The parties hereto acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring fees of the Rating Agencies relating to the rating of the Certificates and that no surveillance fees are payable subsequent to the Closing Date in respect of the rating of the Certificates.
Section 14.15 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.
Section 14.16 Submission to Jurisdiction. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
Section 14.17 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right to vote or in any manner otherwise control the Master Servicer or operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of
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the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association, nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as Certificateholder, shall have any right by virtue or by availing of any provision of this Agreement or any Certificate to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement or any Certificate unless the Holders of Certificates evidencing not less than 50% of the Aggregate Certificate Balance of the Certificates then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the cost, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty (60) days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request has been given the Trustee during such sixty-day period by such Certificateholders; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue or by availing of any provision of this Agreement or any Certificate to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement or any Certificate, except in the manner herein provided and for the benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
(d) No Certificateholder shall be “Party in Interest” as described under 11 U.S.C. Section 1109(b) solely by virtue of its ownership of a Certificate.
Section 14.18 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee or the Custodian, as applicable, and, where it is hereby expressly required, to the Depositor and the Certificate Administrator. Such instrument or instruments (as the action embodies therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agents shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Custodian, the Depositor and the Certificate Administrator, if made in the manner provided in this Section. Each of the Trustee and the Custodian agrees to promptly notify the Depositor of any such instrument or instruments received by it, and to promptly forward copies of the same.
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(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments or deeds, certifying that the individual signing such instrument or writing acknowledged to such notary public or other officer the execution thereof. Whenever such execution is by an officer of a corporation or a member of a partnership on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the individual executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Trustee or the Custodian) shall be proved by the Certificate Register, and none of the Trustee, the Custodian, the Depositor or the Certificate Administrator shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Trustee, the Custodian, the Certificate Administrator or the Depositor in reliance thereon, whether or not notation of such action is made upon such Certificate.
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Section 14.19 Compliance with Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the parties hereto may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with such party. Accordingly, each of the parties to this Agreement agrees to provide to any other party to this Agreement, upon request from time to time, such identifying information and documentation as may be available in order to enable the requesting party to comply with Applicable Laws.
Section 14.20 Precautionary Trust Indenture Act Provisions. If the Depositor notifies the parties to this Agreement that it has determined, in consultation with the Trustee, that the TIA applies to this Agreement or that qualification under the TIA or any similar federal statute hereafter enacted is required (any such determination by the Depositor, a “TIA Applicability Determination”), then, (i) in the case of the TIA, pursuant to Section 318 of the TIA (assuming such section is then in effect), the provisions of Sections 310 to and including Section 317 of the TIA that impose duties on any person are part of and govern this Agreement, whether or not physically contained herein, as and to the extent provided in Section 318 of the TIA; provided, that it shall be deemed that the parties to this Agreement have agreed that, to the extent permitted under the TIA, this Agreement shall expressly exclude any non-mandatory provisions that (x) conflict with the provisions of this Agreement or would otherwise alter the provisions of this Agreement or (y) increase the obligations, liabilities or scope of responsibility of any party hereto; (ii) the parties agree to cooperate in good faith with the Depositor to make such amendments to modify, eliminate or add to the provisions of this Agreement to the extent necessary to effect the qualification of this Agreement under the TIA or such similar statute and to add to this Agreement such other provisions as may be expressly required by the TIA or as may be determined by the parties to be beneficial for compliance with the TIA; and (iii) upon the direction of the Depositor, the Trustee shall file a Form T-1 or such other form as the Depositor informs the Trustee is required, with the Commission or other appropriate institution.
Section 14.21 Limitation on Liability of the Depositor and Others. Neither the Depositor nor any of the Affiliates, directors, officers, employees, members, managers or agents of the Depositor shall be under any liability to the Certificateholders, the Trust, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, the Underwriters, the Initial Purchasers, the holder of any Serviced B Note or the holder of any Serviced Companion Loan, and the Depositor (and any of its Affiliates, directors, officers, employees, members, managers or agents) shall be entitled to indemnification from the Trust for any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action incurred by it, arising out of or for any action taken, or for refraining from the taking of any action, in good faith and using reasonable business judgment; provided, that this provision shall not protect the Depositor or any such person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder. The Depositor and any Affiliate, director, officer, employee, member, manager or agent of the Depositor may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person
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respecting any matters arising hereunder. In addition, in no event shall the Depositor be obligated to cause any party to perform or comply with the obligations to remit the CREFC® License Fee to CREFC® (as described in Section 5.2(a)), to report any such CREFC® License Fee so paid (as described in Section 8.11(a)) or to make available any Distribution Date Statement to the general public (as described in Section 5.4(a) (or, in particular, CREFC®, as described in Section 5.4(k))).
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the General Special Servicer, the Excluded Mortgage Loan Special Servicer, the Trustee, the Custodian, the Certificate Administrator, the 17g-5 Information Provider, the Certificate Registrar, the Authenticating Agent and the Trust Advisor have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.
MORGAN STANLEY CAPITAL I INC., | ||
as Depositor | ||
By: | /s/ Zachary Fischer | |
Name: Zachary Fischer | ||
Title: Vice President | ||
wells fargo bank, national Association, | ||
as Master Servicer | ||
By: | /s/ Nachette Hadden | |
Name: Nachette Hadden | ||
Title: Director | ||
LNR PARTNERS, LLC, | ||
as General Special Servicer | ||
By: | /s/ Jerry Hirschkorn | |
Name: Jerry Hirschkorn | ||
Title: Vice President | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as Excluded Mortgage Loan Special Servicer | ||
By: | /s/ Nachette Hadden | |
Name: Nachette Hadden | ||
Title: Director |
MSBAM 2015-C23 – Pooling and Servicing Agreement
PENTALPHA SURVEILLANCE LLC, | ||
as Trust Advisor | ||
By: | /s/ James Callahan | |
Name: James Callahan | ||
Title: Executive Director and Solely
as an Authorized Signatory for Pentalpha Surveillance LLC | ||
WILMINGTON TRUST, national | ||
association, | ||
as Trustee | ||
By: | /s/ Dorri Costello | |
Name: Dorri Costello | ||
Title: Vice President | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as Custodian, Certificate
Administrator, 17g-5 Information Provider, Authenticating Agent and Certificate Registrar | ||
By: | /s/ Stacey Gross | |
Name: Stacey Gross | ||
Title: Vice President |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF NEW YORK | ) |
) ss.: | |
COUNTY OF NEW YORK | ) |
On this 16th day of June 2015, before me, a notary public in and for said State, personally appeared Zachary Fischer, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President on behalf of Morgan Stanley Capital I Inc., and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Matthew A Bavoso | |
Notary Public | |
MATTHEW A. BAVOSO Notary Public, State of New York No. 02BA6276232 Qualified in New York County Commission Expires 02/11/2017 |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF NORTH CAROLINA | ) |
) ss.: | |
COUNTY OF MECKLENBURG | ) |
On this 6 day of June, 2015, personally appeared before me Nachette Hadden, to me known (or proved to me on the basis of satisfactory evidence) to be a Director of Wells Fargo Bank, National Association, a national banking association, that executed the within and foregoing instrument, and acknowledged that said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument, and that by her signature on the instrument the entity upon behalf of which she acted, executed the instrument
/s/ Erica L. Smith | |
Notary | |
Name: | |
My Commission expires: July 15, 2017 | |
ERICA L. SMITH NOTARY PUBLIC Gaston County North Carolina My Commission Expires 7/15/2017 | |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF New York | ) |
) ss.: | |
COUNTY OF Nassau | ) |
On this 15th day of June 2015, before me, a notary public in and for said State, personally appeared Jerry Hirschkorn, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument asVice President of LNR Partners, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Samantha Rae Gentile | |
Notary Public | |
SAMANTHA
RAE GENTILE |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF NORTH CAROLINA | ) |
) ss.: | |
COUNTY OF MECKLENBURG | ) |
On this 16 day of June, 2015, personally appeared before me Nachette Hadden, to me known (or proved to me on the basis of satisfactory evidence) to be a Director of Wells Fargo Bank, National Association, a national banking association, that executed the within and foregoing instrument, and acknowledged that said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument, and that by her signature on the instrument the entity upon behalf of which she acted, executed the instrument
/s/ Erica L. Smith | |
Notary | |
Name: | |
My Commission expires: July 15, 2017 | |
ERICA L. SMITH NOTARY PUBLIC Gaston County North Carolina My Commission Expires 7/15/2017 | |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF Connecticut | ) |
) ss.: | |
COUNTY OF Fairfield | ) |
On this 12th day of June 2015, before me, a notary public in and for said State, personally appeared James Callahan, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as an Executive of Pentalpha Surveillance LLC, and acknowledged to me that such limited liability company executed the within instrument pursuant to its limited liability company operating agreement or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Melonie S. Williams | |
Notary Public | |
Melonie S. Williams Notary Public Connecticut My Commission Expires July 31, 2019 |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF DELAWARE | ) |
) ss.: | |
COUNTY OF NEW CASTLE | ) |
On this 16th day of June 2015, before me, a notary public in and for said State, personally appeared Dorri Costello, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President of Wilmington Trust, National Association, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Christina M. Bader | |
Notary Public | |
CHRISTINA M BADER NOTARY PUBLIC STATE OF DELAWARE My Commission Expires 04-15-2016 |
MSBAM 2015-C23 – Pooling and Servicing Agreement
STATE OF Maryland | ) |
) ss.: | |
COUNTY OF Howard | ) |
On this 16th day of June 2015, before me, a notary public in and for said State, personally appeared Stacey Gross, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as VP of Wells Fargo Bank, NA, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the day and year in this certificate first above written.
/s/ Amy Martin | |
Notary Public | |
AMY MARTIN NOTARY PUBLIC ANNE ARUNDEL COUNTY MARYLAND My Commission Expires 2-22-2017 |
MSBAM 2015-C23 – Pooling and Servicing Agreement
MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
LNR
PARTNERS, LLC,
AS GENERAL SPECIAL SERVICER,
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
AS EXCLUDED MORTGAGE LOAN SPECIAL SERVICER,
PENTALPHA
SURVEILLANCE LLC,
AS TRUST ADVISOR,
WILMINGTON TRUST, NATIONAL ASSOCIATION,
AS TRUSTEE,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS
CERTIFICATE ADMINISTRATOR, CERTIFICATE REGISTRAR, AUTHENTICATING
AGENT AND CUSTODIAN
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 2015
MORGAN STANLEY BANK OF AMERICA MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2015-C23
EXHIBIT
A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-1-1 |
MORGAN STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 1.685% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING DATE: $45,800,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE: $45,800,000
NO. A-1-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAA7
ISIN NO. US61690QAA76 |
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the
A-1-2 |
Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-1 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-1 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-1 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-1-3 |
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
A-1-4 |
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-1-5 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-1-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- - -
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-1-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to __________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-1-9 |
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-2-1 |
MORGAN STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 2.982% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES AS OF THE CLOSING DATE: $122,100,000
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE CLOSING DATE: $122,100,000
NO. A-2-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAB5
ISIN NO. US61690QAB59 |
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-2-2 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-2 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-2 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-2 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling
A-2-3 |
and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
A-2-4 |
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-2-5 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-2-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-2-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-2-9 |
EXHIBIT A-3
[FORM OF CLASS A-SB CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-3-1 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.398% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-SB CERTIFICATES AS OF THE CLOSING DATE: $67,600,000
CERTIFICATE BALANCE OF THIS CLASS A-SB CERTIFICATE AS OF THE CLOSING DATE: $67,600,000
NO. A-SB-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAC3
ISIN NO. US61690QAC33 |
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-3-2 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-SB Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-SB Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-SB Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling
A-3-3 |
and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
A-3-4 |
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-3-5 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-3-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-3-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-3-9 |
EXHIBIT
A-4
[FORM OF CLASS A-3 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-4-1 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.451% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3 CERTIFICATES AS OF THE CLOSING DATE: $230,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE AS OF THE CLOSING DATE: $230,000,000
NO. A-3-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAD1
ISIN NO. US61690QAD16 |
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-4-2 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-3 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-3 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-3 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling
A-4-3 |
and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
A-4-4 |
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
A-4-5 |
AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-4-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-4-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-4-9 |
EXHIBIT
A-5
[FORM OF CLASS A-4 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-5-1 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.719% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4 CERTIFICATES AS OF THE CLOSING DATE: $285,394,000
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE AS OF THE CLOSING DATE: $285,394,000
NO. A-4-1
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAE9
ISIN NO. US61690QAE98
|
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-5-2 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-4 Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class A-4 Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-4 Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling
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and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
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As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
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AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-5-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ________________________________________ account number ______________ or, if mailed by check, to _________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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EXHIBIT
A-6
[FORM OF CLASS X-A CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS MULTIPLE “REGULAR INTERESTS” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
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DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-6-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-A CERTIFICATES AS OF THE CLOSING DATE: $750,894,000
Notional Amount of this Class X-A Certificate as of the Closing Date: $[_]
NO. X-A-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAF6
ISIN NO. US61690QAF63
|
CLASS X-A CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
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To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-A Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-A Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-A Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
A-6-4 |
the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-A Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
A-6-5 |
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-6-6 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-A CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-6-8 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________________________ account number ______________ or, if mailed by check, to ________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-6-9 |
EXHIBIT A-7
[FORM OF CLASS A-S CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO. THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-7-1 |
SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-7-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: LESSER OF 4.004% PER ANNUM and the weighted average remic i net mortgage rate
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-S CERTIFICATES AS OF THE CLOSING DATE: $75,089,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
CERTIFICATE BALANCE OF THIS CLASS A-S CERTIFICATE AS OF THE CLOSING DATE: $75,089,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
NO. A-S-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAG4
ISIN NO. US61690QAG47
|
CLASS A-S CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the
A-7-3 |
Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class A-S Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof (subject to adjustments reflected on the schedule of exchanges attached hereto) by the initial Aggregate Certificate Balance of the Class A-S Certificates (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates).
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class A-S Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-7-4 |
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
A-7-5 |
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-7-6 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-7-7 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-S CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-7-9 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-7-10 |
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-7-11 |
EXHIBIT
A-8
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO. THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-8-1 |
SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-8-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: the weighted average remic i net mortgage rate
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING DATE: $60,340,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE: $60,340,000 (subject to schedule of exchanges attached)
NO. B-1
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAH2
ISIN NO. US61690QAH20
|
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-8-3 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class B Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof (subject to adjustments reflected on the schedule of exchanges attached hereto) by the initial Aggregate Certificate Balance of the Class B Certificates (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates).
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class B Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-8-4 |
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
A-8-5 |
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-8-6 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-8-7 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-8-9 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-8-10 |
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-8-11 |
EXHIBIT
A-9
[FORM OF CLASS PST CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO. THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THE CLASS PST COMPONENTS (AND CORRESPONDINGLY TO THIS CERTIFICATE). ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-9-1 |
SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN MULTIPLE “REGULAR INTERESTS” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1)AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-9-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: The Class PST Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of the interest distributable on the Class PST Components.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS PST CERTIFICATES AS OF THE CLOSING DATE: $0 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
CERTIFICATE BALANCE OF THIS CLASS PST CERTIFICATE AS OF THE CLOSING DATE: $0 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
NO. PST-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAJ8
ISIN NO. US61690QAJ85
|
CLASS PST CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust
A-9-3 |
consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class PST Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof (subject to adjustments reflected on the schedule of exchanges attached hereto) by the initial Aggregate Certificate Balance of the Class PST Certificates (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates).
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
This Certificate will be entitled to interest that accrues (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date on the Class PST Components at the applicable Pass-Through Rates immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class PST Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
A-9-4 |
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and
A-9-5 |
thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
A-9-6 |
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-9-7 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PST CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-9-9 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to __________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-9-10 |
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-9-11 |
EXHIBIT
A-10
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO. THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-10-1 |
SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-10-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: THE Weighted Average REMIC I Net Mortgage Rate
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING DATE: $46,931,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE: $46,931,000 (subject to schedule of exchanges attached)
NO. C-1 |
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QAK5
ISIN NO. US61690QAK58
|
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties.
A-10-3 |
To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class C Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof (subject to adjustments reflected on the schedule of exchanges attached hereto) by the initial Aggregate Certificate Balance of the Class C Certificates (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates).
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class C Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
A-10-4 |
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Certificate Administrator by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
A-10-5 |
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
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THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-10-7 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to __________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-10-10 |
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-10-11 |
EXHIBIT
A-11
[FORM OF CLASS X-B CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN
A-11-1 |
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-11-2 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-B CERTIFICATES AS OF THE CLOSING DATE: $75,089,000
NOTIONAL AMOUNT OF THIS Class X-B CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-B-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/ AUTHENTICATING AGENT/Custodian: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAL31
ISIN
NO. US61690QAL324
|
CLASS X-B CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-11-3 |
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-B Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-B Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate
A-11-4 |
immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-B Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
A-11-5 |
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
A-11-6 |
Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-B Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the
A-11-7 |
terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-11-8 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-11-10 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-11-11 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-11-12 |
EXHIBIT
A-12
[FORM OF CLASS X-FG CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN
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INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS MULTIPLE “REGULAR INTERESTS” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-FG CERTIFICATES AS OF THE CLOSING DATE: $26,818,000
NOTIONAL AMOUNT OF THIS CLASS X-FG CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-FG-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/ AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAN91
ISIN
NO. US61690QAN974
|
CLASS X-FG CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
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MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-FG Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-FG Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate
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immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-FG Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
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[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing
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Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-FG Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the
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terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-FG CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT
A-13
[FORM OF CLASS X-H CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B)
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WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO REDUCE THE NOTIONAL AMOUNT OF THIS CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
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THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: VARIABLE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-H CERTIFICATES AS OF THE CLOSING DATE: $32,181,368
NOTIONAL AMOUNT OF THIS CLASS X-H CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. X-H-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/ AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAQ21
ISIN
NO. US61690QAQ294 |
CLASS X-H CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
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MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class X-H Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-H Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Notional Amount of this Certificate
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immediately prior to each Distribution Date. Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Class X-H Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
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[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
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No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-H Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate
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of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
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OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT
A-14
[FORM OF CLASS D CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN
A-14-1 |
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING DATE: $56,317,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. D-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAS81
ISIN
NO. US61690QAS844 |
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-14-3 |
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class D Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class D Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the
A-14-4 |
amount to be distributed on the Class D Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the
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Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner
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desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the
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outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
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EXHIBIT
A-15
[FORM OF CLASS E CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
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EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
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[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: THE WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING DATE: $24,136,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. E-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAU31
ISIN
NO. US61690QAU314
|
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-15-4 |
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class E Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class E Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the
A-15-5 |
amount to be distributed on the Class E Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the
A-15-6 |
Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner
A-15-7 |
desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
A-15-8 |
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-15-9 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-15-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-15-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-15-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-15-14 |
EXHIBIT
A-16
[FORM OF CLASS F CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
A-16-1 |
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
A-16-2 |
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-16-3 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.000% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING DATE: $10,727,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. F-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAW91
ISIN
NO. US61690QAW964
|
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-16-4 |
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class F Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class F Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the
A-16-5 |
amount to be distributed on the Class F Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the
A-16-6 |
Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner
A-16-7 |
desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
A-16-8 |
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-16-9 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-16-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-16-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _________________________________________________ account number ______________ or, if mailed by check, to _______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-16-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-16-14 |
EXHIBIT A-17
[FORM OF CLASS G CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
A-17-1 |
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
A-17-2 |
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-17-3 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.000% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING DATE: $16,091,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. G-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QAY51
ISIN
NO. US61690QAY524
|
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-17-4 |
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class G Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class G Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the
A-17-5 |
amount to be distributed on the Class G Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the
A-17-6 |
Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner
A-17-7 |
desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
A-17-8 |
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-17-9 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-17-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-17-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-17-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-17-14 |
EXHIBIT
A-18
[FORM OF CLASS H CERTIFICATE]
[FOR REGULATION S CERTIFICATES ONLY: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN).
NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
A-18-1 |
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
[FOR GLOBAL CERTIFICATES ONLY: THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND COLLATERAL SUPPORT DEFICITS ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.
A-18-2 |
[FOR GLOBAL CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-18-3 |
MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PASS-THROUGH RATE: 3.000% PER ANNUM
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING DATE: $32,181,368
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE: $[_____] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)]
NO. H-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP
NO. 61690QBA61
ISIN
NO. US61690QBA674
|
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
1 For Rule 144A Global Certificates
2 For Regulation S Global Certificates
3 For Definitive Certificates
4 For Rule 144A Global Certificates
5 For Regulation S Global Certificates
6 For Definitive Certificates
A-18-4 |
THIS CERTIFIES THAT [FOR GLOBAL CERTIFICATES ONLY: CEDE & CO.] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class H Certificates equal to the quotient expressed as a percentage obtained by dividing the initial Certificate Balance of this Certificate specified on the face hereof by the initial Aggregate Certificate Balance of the Class H Certificates.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”) commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the related Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the
A-18-5 |
amount to be distributed on the Class H Certificates as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
Collateral Support Deficits shall be allocated on the applicable Distribution Date to the respective Classes of Principal Balance Certificates in the manner set forth in the Pooling and Servicing Agreement. All Collateral Support Deficits allocated to any Class of Principal Balance Certificates will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement [FOR GLOBAL CERTIFICATES ONLY: to a nominee of The Depository Trust Company (“DTC”)] will be made by or on behalf of the Certificate Administrator by check mailed to [such][the] Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
[FOR REGULATION S CERTIFICATES ONLY: Until this Regulation S Temporary Global Certificate is exchanged for one or more Regulation S Permanent Global Certificates, the Holder hereof shall not be entitled to receive payments hereon; until so exchanged in full, this Regulation S Temporary Global Certificate shall in all other respects be entitled to the same benefits as other Certificates under the Pooling and Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the
A-18-6 |
Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
[FOR REGULATION S CERTIFICATES ONLY: This Regulation S Temporary Global Certificate is exchangeable in whole or in part for one or more Global Certificates only (i) on or after the termination of the 40-day distribution compliance period (as defined in Regulation S) and (ii) upon presentation of a Regulation S Certificate (as defined in the Pooling Agreement) required by Article III of the Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary Global Certificate for one or more Global Certificates, the Certificate Registrar shall cancel this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No Person may hold an interest in a Rule 144A Global Certificate unless that Person is a Qualified Institutional Buyer, and no “U.S. person” (as that term is defined in Rule 902(k) under the Securities Act) may hold an interest in a Regulation S Global Certificate, and transfers of interests in the Global Certificates that would result in a violation of the foregoing are prohibited. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner
A-18-7 |
desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or such interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless: (i) the purchase and holding of this Certificate or such interest herein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject any party to the Pooling and Servicing Agreement to any obligation in addition to those undertaken in the Pooling and Servicing Agreement. Each Person who acquires any Non-Investment Grade Certificate as a Definitive Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof or unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that: (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
A-18-8 |
As and when provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, including but not limited to the transfer restrictions described above, a Definitive Certificate may be converted into an interest in a Global Certificate of the applicable Class, an interest in a Global Certificate may be converted into a Definitive Certificate of the applicable Class, an interest in a Rule 144A Global Certificate may be converted into an interest in a Regulation S Global Certificate of the applicable Class and an interest in a Regulation S Global Certificate may be converted into an interest in a Rule 144A Global Certificate of the applicable Class.
[FOR GLOBAL CERTIFICATES ONLY: Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.]
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
A-18-9 |
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-18-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL | ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-18-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-18-13 |
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-18-14 |
EXHIBIT
A-19
[FORM OF CLASS V CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, OR (2) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO
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ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
THIS CERTIFICATE REPRESENTS A BENEFICIAL INTEREST IN CERTAIN EXCESS INTEREST AS FURTHER DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PERCENTAGE INTEREST OF THIS CLASS V CERTIFICATE: [_]%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
NO. V-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QBD0
ISIN NO. US61690QBD07 |
CLASS V CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT [_____] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
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This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class V Certificates equal to the percentage interest specified on the face hereof.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement in respect of Excess Interest. Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement will be made by or on behalf of the Certificate Administrator by check mailed to the Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in
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immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
The Class V Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 1% in excess thereof.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective
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capacities as such). No transfer of a Class V Certificate may be made to a Person that is not a Qualified Institutional Buyer or an Institutional Accredited Investor. No transfer of a Class V Certificate may be made in book-entry form. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing this Certificate or interest herein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan. Each Person who acquires any Class V Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A or Exhibit D-2B to the Pooling and Servicing Agreement that includes a certification to the effect that it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting)
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shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS V CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL
| ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
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EXHIBIT
A-20
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUST ADVISOR, THE AUTHENTICATING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
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THIS CERTIFICATE REPRESENTS “RESIDUAL INTERESTS” IN MULTIPLE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS A “NONECONOMIC RESIDUAL INTEREST,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.
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MORGAN
STANLEY BANK OF AMERICA
MERRILL LYNCH TRUST 2015-C23,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2015-C23
PERCENTAGE INTEREST OF THIS CLASS R CERTIFICATE: [_]%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 2015
CUT-OFF DATE: JUNE 1, 2015
CLOSING DATE: JUNE 18, 2015
FIRST DISTRIBUTION DATE: JULY 17, 2015
NO. R-[_]
|
MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
GENERAL SPECIAL SERVICER: LNR PARTNERS, LLC
EXCLUDED MORTGAGE LOAN SPECIAL SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUST ADVISOR: PENTALPHA SURVEILLANCE LLC
TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION
CERTIFICATE ADMINISTRATOR/ CERTIFICATE REGISTRAR/AUTHENTICATING AGENT/CUSTODIAN: WELLS FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 61690QBE8
ISIN NO. US61690QBE89 |
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a New York common law trust (the “Trust”), consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT [_____] is the registered owner of this commercial mortgage pass-through certificate (this “Certificate”), which has been issued pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar and the Authenticating Agent, a summary of certain of the pertinent provisions of which is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Collection Account and Distribution Account, the Insurance Policies and any REO Properties. To the extent not defined herein, the capitalized terms used herein have the respective meanings assigned in the Pooling and Servicing Agreement.
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This Certificate is one of a duly authorized issue of Certificates designated as the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (herein called the “Certificates”). The Certificates are issued in the Classes specified in the Pooling and Servicing Agreement and will evidence in the aggregate 100% of the beneficial ownership of the Trust. This Certificate represents an interest in the Class R Certificates equal to the percentage interest specified on the face hereof.
This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement, including a distribution upon termination of the Pooling and Servicing Agreement and the respective REMICs created thereby of the amounts which remain on deposit in the Distribution Account after payment to the holders of all other Certificates of all amounts set forth in the Pooling and Servicing Agreement. Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 4th Business Day after the related Determination Date (a “Distribution Date”), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the applicable Record Date. The Determination Date is the 11th day of each month, or, if the 11th day is not a Business Day, the next succeeding Business Day (a “Determination Date”), commencing on July 13, 2015. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.
The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement will be made by or on behalf of the Certificate Administrator by check mailed to the Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Certificate Administrator on or prior to the related Record Date (or upon standing instructions given to the
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Certificate Administrator on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Certificate Administrator five (5) days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the aggregate Voting Rights of the Certificates then outstanding, as specified in the Pooling and Servicing Agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.
The Class R Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 1% in excess thereof.
No transfer, sale, pledge or other disposition of this Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws. If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of such Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either: (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached as Exhibit D-2A to the Pooling and Servicing Agreement; or (ii) an opinion of counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such
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opinion of counsel is based (which opinion of counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Custodian, the Trustee, the Trust Advisor or the Certificate Registrar in their respective capacities as such). No transfer of a Class R Certificate may be made in book-entry form or otherwise to a Person that is not a Qualified Institutional Buyer, and any certificate and/or opinion of counsel delivered pursuant to the preceding sentence must reflect that the Transferee of a Class R Certificate is a Qualified Institutional Buyer. No party to the Pooling and Servicing Agreement is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under the Pooling and Servicing Agreement to permit the transfer of any Certificate. Any Certificateholder or Certificate Owner desiring to effect a transfer of this Certificate or interests therein shall, and does hereby agree to, indemnify each Underwriter, each Initial Purchaser and each party to the Pooling and Servicing Agreement against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.
No transfer of a Class R Certificate or any interest therein shall be made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, insurance company general accounts, that is subject to Title I of ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan. Each Person who acquires any Class R Certificate (unless it shall have acquired such Certificate from the Depositor or an Affiliate thereof) shall be required to deliver to the Certificate Registrar a certification in the form of Exhibit D-2A to the Pooling and Servicing Agreement that includes a certification to the effect that it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Administrator under clause (F) of Section 3.3(e) of the Pooling and Servicing Agreement to deliver payments to a Person other than such Person and to have irrevocably authorized the Certificate Registrar under clause (G) of Section 3.3(e) of the Pooling and Servicing Agreement to negotiate the terms of any mandatory sale and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of such person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S.
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corporation) by any person that is not a United States Tax Person, and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Permitted Transferee and (2) each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Qualified Institutional Buyer and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Class R Certificate shall be registered until the Certificate Registrar receives, an affidavit and agreement substantially in the form attached to the Pooling and Servicing Agreement as Exhibit E-1 (a “Transfer Affidavit and Agreement”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee or is not a United States Tax Person, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a Class R Certificate shall agree (1) to require a Transfer Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Class R Certificate and (2) not to transfer its Ownership Interest in such Class R Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached to the Pooling and Servicing Agreement as Exhibit E-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate that is a “pass-through interest holder” within the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Class R Certificate on behalf of a “pass-through interest holder”, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice of its status as such immediately upon holding or acquiring such Ownership Interest in a Class R Certificate.
(F) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the provisions of Section 3.3(e) of the Pooling and Servicing Agreement or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, then the last preceding Holder of such Class R Certificate that was in compliance with the provisions of Section 3.3(e) of the Pooling and Servicing Agreement shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. None of the Trustee, the Custodian, the Master Servicer, the Special Servicers, the Trust Advisor, the Certificate Registrar or the Certificate Administrator shall be under any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by Section 3.3(e) of the Pooling and Servicing Agreement or for making any payments due on such Certificate to the Holder
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thereof or for taking any other action with respect to such Holder under the provisions of the Pooling and Servicing Agreement.
(G) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in Section 3.3(e) of the Pooling and Servicing Agreement, or if any Holder of a Class R Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, and to the extent that the retroactive restoration of the rights and obligations of the prior Holder of such Class R Certificate as set forth in clause (F) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Class R Certificate, but not the obligation, to sell or cause to be sold such Class R Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such noncomplying Holder shall promptly endorse and deliver such Class R Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by the Certificate Registrar to such noncomplying Holder. The terms and conditions of any sale under this clause (G) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
“Permitted Transferee” means any Transferee other than: (a) a Disqualified Organization; (b) any other Person identified in an Opinion of Counsel delivered to the Certificate Administrator and the Trustee to the effect that the transfer of an ownership interest in any Class R Certificate to such Person may cause any REMIC Pool to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a non-United States Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a non-United States Tax Person or (e) a United States Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other United States Tax Person.
“United States Tax Person” means a citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, an estate whose income is subject to United States federal income tax regardless of the source of its income, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as United States Tax Persons). A person not described in the immediately preceding sentence shall nevertheless be treated as a United States Tax Person if (i) in the hands of such person the income from a Class R Certificate is effectively connected with the conduct of a trade or business within the United States and such person has furnished
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the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or other prescribed form or (ii) if in connection with the proposed transfer of a Class R Certificate, the transferor provides an opinion of counsel to the Certificate Registrar to the effect that such transfer will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.
“Disqualified Organization” means any of (i) the United States, any State or any political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization or any agency or instrumentality of either of the foregoing, (iii) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Code Section 521), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code, and (v) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel that the holding of an ownership interest in a Class R Certificate by such Person may cause (A) any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that the Certificates are outstanding, or (B) any of REMIC I, REMIC II or REMIC III, or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.
The provisions of Section 3.3(e) of the Pooling and Servicing Agreement may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Master Servicer, the Depositor, an Opinion of Counsel (subject to Section 5.7 of the Pooling and Servicing Agreement, a copy of which shall be provided to each Rating Agency), in form and substance satisfactory to the Trustee, the Certificate Registrar and the Depositor, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC Pool to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused by the Transfer of any Class R Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the prospective Transferee to be subject to a tax caused by the Transfer of a Class R Certificate to a Person which is not a Permitted Transferee.
As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the
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Authenticating Agent and any of their agents may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicers, the Trust Advisor, the Trustee, the Custodian, the Certificate Administrator, the Certificate Registrar, the Authenticating Agent or any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Certificate Administrator created hereby (other than the obligation of the Certificate Administrator, to make payments to the Class R Certificateholders, as set forth in Section 11.3 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 11.1(b) of the Pooling and Servicing Agreement or (iii) voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V and Class R Certificates) for the remaining Mortgage Loans and the Trust’s interest in any REO Properties in the Trust Fund pursuant to the terms of Section 11.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof. The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase the Mortgage Loans and any other property remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement. Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Class R Certificates.
The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, AND THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT.
A-20-10 |
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.
WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Registrar | ||
By: | ||
Name: | ||
Title: |
Dated: June 18, 2015
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
WELLS
FARGO BANK, NATIONAL
| ||
By: | ||
Name: | ||
Title: |
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT
JT TEN
|
- -
-
|
as tenant in common as tenants by the entireties as joint tenants
with |
UNIF GIFT MIN ACT ................. Custodian (Cust) Under Uniform Gifts to Minors
Act ....................... (State) |
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
Please print or typewrite name and address of assignee |
the within Certificate and does hereby or irrevocably constitute and appoint |
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises. |
Dated: | ||||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever. |
SIGNATURE GUARANTEED | ||
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable. |
A-20-12 |
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of _____________________________ account number ______________ or, if mailed by check, to ______________________________________. Statements should be mailed to ____________________. This information is provided by assignee named above, or _______________________, as its agent.
A-20-13 |
EXHIBIT
B-1
FORM OF INITIAL CERTIFICATION
June 18, 2015
To: | The parties listed on Schedule 1 hereto |
Re: | Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) relating to Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that: (a) all documents specified in clauses (i), (ii), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan and (c) each Mortgage Note has been endorsed as provided in clause (i) of the definition of “Mortgage File” of the Pooling and Servicing Agreement. The Custodian on behalf of the Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any such documents contained in each Mortgage File of any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness or suitability of any such Mortgage Loan.
The Custodian on behalf of the Trustee acknowledges receipt of notice that the Depositor has granted to the Trustee for the benefit of the Certificateholders a security interest in all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein and not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement. This Certificate is subject in all respects to the terms of the Pooling and Servicing Agreement.
Wells Fargo Bank, National Association, as Custodian | |||
By: |
|||
Name: | |||
Title: |
Schedule 1
Morgan Stanley Capital I Inc. |
1585 Broadway |
New York, New York 10036 |
Attention: Stephen Holmes |
Morgan Stanley Capital I Inc. |
1221 Avenue of the Americas |
New York, New York 10020 |
Attention: Legal Compliance Division |
Morgan Stanley Mortgage Capital Holdings LLC |
1585 Broadway |
New York, New York 10036 |
Attention: Stephen Holmes |
Morgan Stanley Mortgage Capital Holdings LLC |
1221 Avenue of the Americas |
New York, New York 10020 |
Attention: Legal Compliance Division |
Bank of America, National Association |
One Bryant Park |
New York, New York 10036 |
Attention: Leland F. Bunch |
W. Todd Stillerman, Esq. |
Assistant General Counsel and Director |
Bank of America Corporation |
214 North Tryon Street, 20th Floor |
NC1-027 20-05 |
Charlotte, North Carolina 28255 |
Henry A. LaBrun, Esq. |
Cadwalader, Wickersham & Taft LLP |
227 West Trade Street |
Charlotte, North Carolina 28202 |
CIBC Inc. |
c/o Canadian Imperial Bank of Commerce |
425 Lexington Avenue, 4th Floor |
New York, New York 10017 |
Attention: Todd Roth, Managing Director |
B-1-2 |
Starwood Mortgage Funding III LLC |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: Leslie K. Fairbanks, Executive Vice President |
Facsimile: (305) 695-5449 |
With a copy to: |
LNR Property LLC |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: Vincent Kallaher, Senior Vice President |
Facsimile: (305) 695-5449 |
With a copy to: |
LNR Property LLC, |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: General Counsel |
Facsimile: (305) 695-5449 |
Wells Fargo Bank, National Association |
Commercial Mortgage Servicing, |
1901 Harrison Street |
Oakland, California 94612 |
Attention: MSBAM 2015-C23 Asset Manager |
Facsimile: (866) 661-8969 |
With a copy to: |
Wells Fargo Bank, National Association |
Commercial Mortgage Servicing |
MAC D1086-120 |
550 South Tryon Street, 14th Floor |
Charlotte, North Carolina 28202 |
Attention: MSBAM 2015-C23 |
Facsimile: (704) 715-0036 |
With a copy to: |
Wells Fargo Bank, National Association |
Legal Department |
301 South College Street |
TW-30 |
Charlotte, North Carolina 28288-0630 |
Attention: Commercial Mortgage Servicing Legal Support |
B-1-3 |
Reference: MSBAM 2015-C23 |
Facsimile: (704) 383-0353 |
With a copy to: |
K&L Gates LLP |
Hearst Tower |
214 North Tryon Street |
Charlotte, NC 28202 |
Attention: Stacy G. Ackermann |
Facsimile: (704) 353-3190 |
LNR Partners, LLC |
1601 Washington Avenue, Suite 700 |
Miami Beach, Florida 33139 |
Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
Wells Fargo Bank, National Association |
Commercial Mortgage Special Servicing |
MAC D1086 |
550 South Tryon Street |
Charlotte, North Carolina 28202 |
Attention: MSBAM 2015-C23 Special Servicing |
Facsimile: (704) 715-0055 |
Wells Fargo Bank, National Association |
Legal Department |
301 S. College St. |
Charlotte, North Carolina 28288-0166 |
Attention: Commercial Mortgage Servicing Legal Support |
Facsimile: (704) 383-0353 |
Reference: MSBAM 2015-C23 |
K&L Gates LLP |
Hearst Tower, 47th Floor |
214 North Tryon Street |
Charlotte, North Carolina 28202 |
Attention: Stacy Ackermann |
Facsimile: (704) 353-3190 |
Pentalpha Surveillance LLC |
375 N. French Road, Suite 100 |
Amherst, New York 14228 |
Attention: Don Simon, Chief Operating Officer |
E-mail: don.simon@pentalphasurveillance.com |
With a copy to: |
B-1-4 |
Bass, Berry & Sims PLC |
150 Third Avenue South, Suite 2800 |
Nashville, TN 37201 |
Attention: Jay Knight |
E-mail: jknight@bassberry.com |
Wells Fargo Bank, National Association |
9062 Old Annapolis Road, |
Columbia, Maryland 21045 |
Attention: Client Manager – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 |
Wilmington Trust, National Association |
1100 North Market Street |
Wilmington, Delaware 19890 |
Attention: Account Name MSBAM 2015-C23 |
Email: cmbstrustee@wilmingtontrust.com |
With a copy to: |
Alston & Bird LLP |
Bank of America Plaza |
101 S. Tryon Street, 40th Floor |
Charlotte, North Carolina 28280 |
Attention: Peter S. Barwick |
Facsimile: (704) 444-1955 |
B-1-5 |
SCHEDULE OF EXCEPTIONS
[_____]
B-1-6 |
EXHIBIT B-2
FORM OF FINAL CERTIFICATION
__________, 2015
To: | The parties on Schedule 1 attached hereto |
Re: | Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) relating to Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that: (a) all documents specified in clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (x) and (xii) of the definition of “Mortgage File” required to be included in the Mortgage File (to the extent required to be delivered pursuant to the Pooling and Servicing Agreement), and with respect to all documents specified in the other clauses of the definition of “Mortgage File” (to the extent known by a Responsible Officer of the Custodian on behalf of the Trustee to be required pursuant to the Pooling and Servicing Agreement), are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (c) based on its examination and only as to the Mortgage Note and the Mortgage, the street address (excluding zip code) of the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File, and (d) each Mortgage Note has been endorsed. The Custodian on behalf of the Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any of the documents contained in each Mortgage File of any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness or suitability of any such Mortgage Loan.
The Custodian on behalf of the Trustee acknowledges receipt of notice that the Depositor has granted to the Trustee for the benefit of the Certificateholders a security interest in all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular Interests.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement. This Certificate is qualified in all respects by the terms of the Pooling and Servicing Agreement including but not limited to Section 2.2 thereof.
B-2-1 |
Wells Fargo Bank, National Association, as Custodian | |||
By: |
|||
Name: | |||
Title: |
B-2-2 |
Schedule 1
Morgan Stanley Capital I Inc. |
1585 Broadway |
New York, New York 10036 |
Attention: Stephen Holmes |
Morgan Stanley Capital I Inc. |
1221 Avenue of the Americas |
New York, New York 10020 |
Attention: Legal Compliance Division |
Morgan Stanley Mortgage Capital Holdings LLC |
1585 Broadway |
New York, New York 10036 |
Attention: Stephen Holmes |
Morgan Stanley Mortgage Capital Holdings LLC |
1221 Avenue of the Americas |
New York, New York 10020 |
Attention: Legal Compliance Division |
Bank of America, National Association |
One Bryant Park |
New York, New York 10036 |
Attention: Leland F. Bunch |
W. Todd Stillerman, Esq. |
Assistant General Counsel and Director |
Bank of America Corporation |
214 North Tryon Street, 20th Floor |
NC1-027 20-05 |
Charlotte, North Carolina 28255 |
Henry A. LaBrun, Esq. |
Cadwalader, Wickersham & Taft LLP |
227 West Trade Street |
Charlotte, North Carolina 28202 |
CIBC Inc. |
c/o Canadian Imperial Bank of Commerce |
425 Lexington Avenue, 4th Floor |
New York, New York 10017 |
Attention: Todd Roth, Managing Director |
B-2-3 |
Starwood Mortgage Funding III LLC |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: Leslie K. Fairbanks, Executive Vice President |
Facsimile: (305) 695-5449 |
With a copy to: |
LNR Property LLC |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: Vincent Kallaher, Senior Vice President |
Facsimile: (305) 695-5449 |
With a copy to: |
LNR Property LLC, |
1601 Washington Ave., Suite 800 |
Miami Beach, Florida 33139 |
Attention: General Counsel |
Facsimile: (305) 695-5449 |
Wells Fargo Bank, National Association |
Commercial Mortgage Servicing, |
1901 Harrison Street |
Oakland, California 94612 |
Attention: MSBAM 2015-C23 Asset Manager |
Facsimile: (866) 661-8969 |
With a copy to: |
Wells Fargo Bank, National Association |
Commercial Mortgage Servicing |
MAC D1086-120 |
550 South Tryon Street, 14th Floor |
Charlotte, North Carolina 28202 |
Attention: MSBAM 2015-C23 |
Facsimile: (704) 715-0036 |
With a copy to: |
Wells Fargo Bank, National Association |
Legal Department |
301 South College Street |
TW-30 |
Charlotte, North Carolina 28288-0630 |
Attention: Commercial Mortgage Servicing Legal Support |
B-2-4 |
Reference: MSBAM 2015-C23 |
Facsimile: (704) 383-0353 |
With a copy to: |
K&L Gates LLP |
Hearst Tower |
214 North Tryon Street |
Charlotte, NC 28202 |
Attention: Stacy G. Ackermann |
Facsimile: (704) 353-3190 |
LNR Partners, LLC |
1601 Washington Avenue, Suite 700 |
Miami Beach, Florida 33139 |
Attention: Thomas F. Nealon, Esq., Steven A. Rivers, Esq. and Job Warshaw |
Wells Fargo Bank, National Association |
Commercial Mortgage Special Servicing |
MAC D1086 |
550 South Tryon Street |
Charlotte, North Carolina 28202 |
Attention: MSBAM 2015-C23 Special Servicing |
Facsimile: (704) 715-0055 |
Wells Fargo Bank, National Association |
Legal Department |
301 S. College St. |
Charlotte, North Carolina 28288-0166 |
Attention: Commercial Mortgage Servicing Legal Support |
Facsimile: (704) 383-0353 |
Reference: MSBAM 2015-C23 |
K&L Gates LLP |
Hearst Tower, 47th Floor |
214 North Tryon Street |
Charlotte, North Carolina 28202 |
Attention: Stacy Ackermann |
Facsimile: (704) 353-3190 |
Pentalpha Surveillance LLC |
375 N. French Road, Suite 100 |
Amherst, New York 14228 |
Attention: Don Simon, Chief Operating Officer |
E-mail: don.simon@pentalphasurveillance.com |
With a copy to: |
B-2-5 |
Bass, Berry & Sims PLC |
150 Third Avenue South, Suite 2800 |
Nashville, TN 37201 |
Attention: Jay Knight |
E-mail: jknight@bassberry.com |
Wells Fargo Bank, National Association |
9062 Old Annapolis Road, |
Columbia, Maryland 21045 |
Attention: Client Manager – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 |
Wilmington Trust, National Association |
1100 North Market Street |
Wilmington, Delaware 19890 |
Attention: Account Name MSBAM 2015-C23 |
Email: cmbstrustee@wilmingtontrust.com |
With a copy to: |
Alston & Bird LLP |
Bank of America Plaza |
101 S. Tryon Street, 40th Floor |
Charlotte, North Carolina 28280 |
Attention: Peter S. Barwick |
Facsimile: (704) 444-1955 |
B-2-6 |
SCHEDULE OF EXCEPTIONS
[_____]
B-2-7 |
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: | Wells Fargo Bank, National Association, as Custodian |
1055 10th Avenue SE |
Minneapolis, Minnesota 55414 |
Attn: | Global Securities and Trust Services |
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 |
Commercial Mortgage Pass-Through Certificates, |
Series 2015-C23 |
cc: | Wilmington Trust, National Association, as Trustee |
1100 North Market Street |
Wilmington, Delaware 19890 |
Attn: Account Name MSBAM 2015-C23 |
Email: cmbstrustee@wilmingtontrust.com |
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, |
Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
DATE: _________________
In connection with the administration of the Mortgage Loans held by you as Custodian on behalf of the Trustee under the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction, the undersigned hereby requests a release of the Trust Mortgage File held by you as Custodian on behalf of the Trustee with respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor’s Name:
Address:
Loan No.:
Reason for requesting file:
_____ | 1. | Mortgage Loan paid in full. |
|
(The [Master] [Special] Servicer hereby certifies that all amounts received in connection with the Mortgage Loan have been or will be, following the [Master] [Special] Servicer’s release of the Trust Mortgage File, credited to the Collection Account or the Distribution Account, as applicable, pursuant to the Pooling and Servicing Agreement.) |
_____ | 2. | Mortgage Loan repurchased. |
(The [Master] [Special] Servicer hereby certifies that the Purchase Price |
C-1 |
has been credited to the Collection Account or the Distribution Account, as applicable, pursuant to the Pooling and Servicing Agreement.) |
_____ | 3. | Mortgage Loan Defeased. |
_____ | 4. | Mortgage Loan replaced. |
(The [Master] [Special] Servicer hereby certifies that a Qualifying Substitute Mortgage Loan has been assigned and delivered to you along with the related Trust Mortgage File pursuant to the Pooling and Servicing Agreement.) |
_____ | 5. | The Mortgage Loan is being foreclosed. |
_____ | 6. | Other. (Describe) |
. |
The undersigned acknowledges that once received, the above Trust Mortgage File will be held by the undersigned in accordance with the provisions of the Pooling and Servicing Agreement and will be returned to you, except if the Mortgage Loan has been paid in full, repurchased or replaced by a Qualifying Substitute Mortgage Loan (in which case the Trust Mortgage File will be retained by us permanently), when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer] | |||
By: |
|||
Name: | |||
Title: |
C-2 |
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of a Class ___ Certificate having an initial Certificate Balance or Notional Amount as of ________ (the “Settlement Date”) of $__________ (the “Transferred Certificate”). The Certificates were issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of June 1, 2015 and executed in connection with the above-referenced transaction. All terms used herein and not otherwise defined shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate with the full right to transfer such Certificate free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of any Certificate under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of any
D-1-1 |
Certificate a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of any Certificate, or any offer or sale thereof, pursuant to the Securities Act or any state securities laws.
Very truly yours, | |||||
(Transferor) | |||||
By: | |||||
Name: | |||||
Title: |
D-1-2 |
EXHIBIT
D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class ______ Certificates having an initial Certificate Balance or Notional Amount as of _________ (the “Settlement Date”) of $__________ (the “Transferred Certificates”). The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a “qualified institutional buyer” (a “Qualified Institutional Buyer”) as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), and has completed one of the forms of certification to that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the Transferred Certificates is being made in reliance on Rule 144A. The Transferee is acquiring the Transferred Certificates for its own account or for the account of a Qualified Institutional Buyer, and understands that such Transferred Certificates may be resold, pledged or transferred only (i) to a person reasonably believed to be a Qualified Institutional Buyer that purchases for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Transferred Certificates and distributions thereon, (c) the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing
D-2A-1 |
Agreement, (e) any credit enhancement mechanism associated with the Transferred Certificates and (f) all related matters that it has requested.
3. Check one of the following:
___ The Transferee is a “U.S. Person” and has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).
___ The Transferee is an institution that is not a “U.S. Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Administrator (or its agent) with respect to distributions to be made on the Transferred Certificates. The Transferee has attached hereto either (i) a duly executed IRS Form W-8BEN, IRS Form W-8BEN-E (or successor forms), which identifies the Transferee as the beneficial owner of the Transferred Certificates and states that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which identify the Transferee as the beneficial owner of the Transferred Certificates and states that interest and original issue discount on the Transferred Certificates is, or is expected to be, effectively connected with a U.S. trade or business. The Transferee agrees to provide to the Certificate Administrator (or its agent) updated IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable successor IRS forms, or such other certifications as the Certificate Administrator (or its agent) may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Administrator (or its agent).
For this purpose, “U.S. Person” means a citizen or resident of the United States for U.S. federal income tax purposes, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more United States fiduciaries have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on October 20, 1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor, the Trustee and the Certificate Administrator are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
4. If the Transferred Certificates are Class V or Class R Certificates, then the Transferee (A) is not an employee benefit plan or other retirement arrangement, including an individual retirement account or annuity, a Keogh plan or a collective
D-2A-2 |
investment fund or separate account, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, an insurance company general account, that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
5. If the Transferred Certificates are Non-Investment Grade Certificates (other than Class V or Class R Certificates), then check the following paragraph that is applicable:
___ The Transferee (A) is not a Plan (as defined in paragraph 4 above), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
___ The Transferee has provided the Certificate Registrar with a certification of facts and an Opinion of Counsel (copies of which are attached hereto) to the effect that the transfer of the Transferred Certificates from the Transferor to the Transferee will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Registrar to any obligation in addition to those undertaken in the Pooling and Servicing Agreement.
___ The purchase and holding of such Certificate or interest therein by such person qualifies for the exemptive relief available under Sections I and III of Prohibited Transaction Class Exemption 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
Very truly yours, |
|||||
(Transferee) |
|||||
By: | |||||
Name: | |||||
Title: |
D-2A-3 |
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and Wells Fargo Bank, National Association, as Certificate Registrar, with respect to the commercial mortgage pass-through certificate being transferred (the “Transferred Certificates”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificate (the “Transferee”).
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”) because (i) the Transferee owned and/or invested on a discretionary basis $______________________1 in securities (other than the excluded securities referred to below) as of [specific date since the close of the Transferee’s most recent fiscal year][the end of the Transferee’s most recent fiscal year] (such amount being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the category marked below.
___ | Corporation, etc. The Transferee is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. |
___ | Bank. The Transferee (a) is a national bank or a banking institution organized under the laws of any State, U.S. territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Transferred Certificate in the case of a U.S. bank, and not more than 18 months preceding such date of sale for a foreign bank or equivalent institution. |
___ | Savings and Loan. The Transferee (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign |
D-2A-4 |
savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Transferred Certificate in the case of a U.S. savings and loan association, and not more than 18 months preceding such date of sale for a foreign savings and loan association or equivalent institution. |
___ | Broker-dealer. The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended. |
___ | Insurance Company. The Transferee is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State, U.S. territory or the District of Columbia. |
___ | State or Local Plan. The Transferee is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees. |
___ | ERISA Plan. The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended. |
___ | Investment Advisor. The Transferee is an investment advisor registered under the Investment Advisers Act of 1940, as amended. |
___ | Other. (Please supply a brief description of the entity and a cross-reference to the paragraph and subparagraph under subsection (a) (1) of Rule 144A pursuant to which it qualifies. Note that registered investment companies should complete Annex 2 rather than this Annex 1.) |
3. The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee, (ii) securities that are part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee did not include any of the securities referred to in this paragraph.
D-2A-5 |
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of such securities to the Transferee, unless the Transferee reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities were valued at market. Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction. However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.
___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee’s own account
6. If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Transferee’s purchase of the Transferred Certificates will constitute a reaffirmation of this certification as of the date of such purchase. In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties any updated annual financial statements that become available on or before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to which the Transferred Certificates were issued.
Print Name of Transferee |
|||||
By: | |||||
Name: | |||||
Title: | |||||
Date: |
D-2A-6 |
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and Wells Fargo Bank, National Association, as Certificate Registrar, with respect to the mortgage pass-through certificate being transferred (the “Transferred Certificates”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificates (the “Transferee”) or, if the Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”) because the Transferee is part of a Family of Investment Companies (as defined below), is an executive officer of the investment adviser (the “Adviser”).
2. The Transferee is a “qualified institutional buyer” as defined in Rule 144A because (i) the Transferee is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Transferee alone owned and/or invested on a discretionary basis, or the Transferee’s Family of Investment Companies owned, at least $100,000,000 in securities (other than the excluded securities referred to below) as of [specific date since the close of the Transferee’s most recent fiscal year][the end of the Transferee’s most recent fiscal year]. For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities was used, unless the Transferee or any member of the Transferee’s Family of Investment Companies, as the case may be, reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities of such entity were valued at market.
____ | The Transferee owned and/or invested on a discretionary basis $___________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
____ | The Transferee is part of a Family of Investment Companies which owned in the aggregate $______________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
3. The term “Family of Investment Companies” as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other).
D-2A-7 |
4. The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, or owned by the Transferee’s Family of Investment Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A.
___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee’s own account
6. If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice, the Transferee’s purchase of the Transferred Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or Adviser |
|||||
By: | |||||
Name: | |||||
Title: | |||||
IF AN ADVISER: | |||||
Print Name of Transferee | |||||
Date: |
D-2A-8 |
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _______________________ (the “Transferor”) to _______________________________ (the “Transferee”) of Class ___ Certificates having an initial Certificate Balance or Notional Amount as of ________ (the “Settlement Date”) of $__________ (the “Transferred Certificates”). The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to which the Transferred Certificates belong has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee or the Certificate Registrar is obligated so to register or qualify the Class of Certificates to which the Transferred Certificates belong, and (c) no Transferred Certificate may be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and the Certificate Registrar has received either: (A) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective transferee substantially in the form attached either as Exhibit D-2A or, except in the case of Class R Certificates, as Exhibit D-2B to the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory to the Certificate
D-2B-1 |
Registrar with respect to the availability of such exemption from registration under the Securities Act, together with copies of the written certification(s) from the transferor and/or transferee setting forth the facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer any Transferred Certificate except in compliance with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (2) (EXCEPT WITH RESPECT TO THE CLASS V AND CLASS R CERTIFICATES) TO AN INSTITUTION THAT IS A NON-”U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (3) (EXCEPT WITH RESPECT TO THE CLASS R CERTIFICATES) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS NOT A QIB, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE FEDERAL SECURITIES LAWS AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
5. The Transferee understands that each Transferred Certificate (if it is a Non-Investment Grade Certificate (other than a Class V or Class R Certificate)) will bear the following legend:
EXCEPT AS OTHERWISE DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO (1) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE
D-2B-2 |
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY GOVERNMENTAL PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH GOVERNMENTAL PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.
6. The Transferee understands that each Transferred Certificate (if it is a Class V or Class R Certificate) will bear the following legends:
FOR THE CLASS V AND CLASS R CERTIFICATES: THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED (1) TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS, THE ASSETS OF WHICH ARE CONSIDERED “PLAN ASSETS” UNDER U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY GENERAL ACCOUNTS, THAT IS SUBJECT TO TITLE I OF ERISA OR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR (2) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH PLAN.
FOR THE CLASS R CERTIFICATES: THIS CERTIFICATE REPRESENTS “RESIDUAL INTERESTS” IN MULTIPLE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
D-2B-3 |
TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS A “NONECONOMIC RESIDUAL INTEREST,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.
7. Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action with respect to any Certificate, any interest in any Certificate or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Transferred Certificates under the Securities Act, would render the disposition of the Transferred Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Transferred Certificates pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing
D-2B-4 |
sentence with respect to any Certificate, any interest in any Certificate or any other similar security.
8. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Transferred Certificates and distributions thereon, (c) the Pooling and Servicing Agreement and the Trust created pursuant thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e) any credit enhancement mechanism associated with the Transferred Certificates, and (f) all related matters, that it has requested.
9. The Transferee is an “accredited investor” as defined in any of paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Transferred Certificate; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.
10. Check one of the following:
___ The Transferee is a “U.S. Person” and has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).
___ The Transferee is an institution that is not a “U.S. Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Administrator (or its agent) with respect to distributions to be made on the Transferred Certificates. The Transferee has attached hereto either (i) a duly executed IRS Form W-8BEN, IRS Form W-8BEN-E (or successor forms), which identifies the Transferee as the beneficial owner of the Transferred Certificates and states that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which identify the Transferee as the beneficial owner of the Transferred Certificates and states that interest and original issue discount on the Transferred Certificates is, or is expected to be, effectively connected with a U.S. trade or business. The Transferee agrees to provide to the Certificate Administrator (or its agent) updated IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable successor IRS forms, or such other certifications as the Certificate Administrator (or its agent) may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Administrator (or its agent).
For this purpose, “U.S. Person” means a citizen or resident of the United States for U.S. federal income tax purposes, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United States is
D-2B-5 |
able to exercise primary supervision over the administration of such trust, and one or more United States fiduciaries have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on October 20, 1996 which are eligible to elect to be treated as U.S. Persons).
11. If the Transferred Certificates are Class V or Class R Certificates, then the Transferee (A) is not an employee benefit plan or other retirement arrangement, including an individual retirement account or annuity, a Keogh plan or a collective investment fund or separate account, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA, including, without limitation, an insurance company general account, that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
12. If the Transferred Certificates are Non-Investment Grade Certificates (other than Class V or Class R Certificates), then check the following paragraph that is applicable:
___ The Transferee (A) is not a Plan (as defined in paragraph 11 above), and (B) is not directly or indirectly purchasing the Transferred Certificates or any interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan.
___ The Transferee has provided the Certificate Registrar with a certification of facts and an Opinion of Counsel (copies of which are attached hereto) to the effect that the transfer of the Transferred Certificates from the Transferor to the Transferee will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or any Similar Laws or subject the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor or the Certificate Registrar to any obligation in addition to those undertaken in the Pooling and Servicing Agreement.
___ The purchase and holding of such Certificate or interest therein by such person qualifies for the exemptive relief available under Sections I and III of Prohibited Transaction Class Exemption 95-60 or another exemption from the “prohibited transactions” rules under ERISA issued by the U.S. Department of Labor or similar exemption under Similar Laws.
The Depositor, the Trustee and the Certificate Administrator are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours, |
D-2B-6 |
(Transferee) |
|||||
By: | |||||
Name: | |||||
Title: |
D-2B-7 |
EXHIBIT
D-3
FORM OF TRANSFER CERTIFICATE
TO AN INTEREST IN A RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 3.7(g) of the Pooling and Servicing Agreement)
Wells Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Class [___] |
Reference is hereby made to the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.
This letter relates to US $[______] aggregate initial [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Definitive Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Current Holder”). The Current Holder has requested an exchange or transfer of such Definitive Certificates for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) (the “Rule 144A Beneficial Interest”).
In connection with such request, and in respect of such Certificates, the Current Holder does hereby certify that [it is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and intends to hold the Rule 144A Beneficial Interest for its own account] [such Certificates are being transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Current Holder reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction].
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We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Trust Advisor and the Initial Purchasers.
[Insert Name of Current Holder] | ||
By: | ||
Name: | ||
Title: |
Dated: _______
D-3-2 |
EXHIBIT
E-1
FORM OF TRANSFEREE AFFIDAVIT AND AGREEMENT (CLASS R)
STATE OF | ) |
) ss: | |
COUNTY OF | ) |
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the prospective transferee (the “Transferee”) of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Class R, evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”)), a ________________ duly organized and validly existing under the laws of ____________________, on behalf of which he/she makes this affidavit. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the pooling and servicing agreement pursuant to which the Residual Certificates were issued (the “Pooling and Servicing Agreement”).
2. The Transferee (i) is, and as of the date of transfer will be, a “Permitted Transferee” and will endeavor to remain a “Permitted Transferee” for so long as it holds the Residual Certificates, and (ii) is acquiring the Residual Certificates for its own account or for the account of another prospective transferee from which it has received an affidavit in substantially the same form as this affidavit. A “Permitted Transferee” is any Person other than a “disqualified organization” or a possession of the United States. (For this purpose, a “disqualified organization” means the United States, any state or political subdivision thereof, any agency or instrumentality of any of the foregoing (other than an instrumentality, all of the activities of which are subject to tax and a majority of whose board of directors is not selected by any such governmental unit) or any foreign government, international organization or any agency or instrumentality of such foreign government or organization, any rural electric or telephone cooperative, or any organization (other than certain farmers’ cooperatives) that is generally exempt from federal income tax unless such organization is subject to the tax on unrelated business taxable income.
3. The Transferee (i) is, and as of the date of transfer will be, a “Qualified Institutional Buyer” and will endeavor to remain a “Qualified Institutional Buyer” for so long as it holds the Residual Certificates, and (ii) is acquiring the Residual Certificates for its own account or for the account of another prospective transferee from which it has received an affidavit in substantially the same form as this affidavit. A “Qualified Institutional Buyer” is a qualified institutional buyer qualifying pursuant to Rule 144A under the Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on transfers of the Residual Certificates to “disqualified organizations” under the Code that applies to all transfers of the Residual Certificates; (ii) that such tax would be on the transferor or, if such
E-1-1 |
transfer is through an agent (which Person includes a broker, nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable for the tax shall be relieved of liability for the tax if the transferee furnishes to such Person an affidavit that the transferee is a Permitted Transferee and, at the time of transfer, such Person does not have actual knowledge that the affidavit is false; and (iv) that the Residual Certificates may be a “noneconomic residual interest” within the meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a “noneconomic residual interest” will remain liable for any taxes due with respect to the income on such residual interest, unless no significant purpose of the transfer is to enable the transferor to impede the assessment or collection of tax.
5. The Transferee is aware of the tax imposed on a “pass-through entity” holding the Residual Certificates if at any time during the taxable year of the pass-through entity a non-Permitted Transferee is the record holder of an interest in such entity. (For this purpose, a “pass-through entity” includes a regulated investment company, a real estate investment trust or common trust fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not register any transfer of the Residual Certificates by the Transferee unless the Transferee’s transferee, or such transferee’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Transferee expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Residual Certificate will only be owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee’s taxpayer identification number is _________________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Residual Certificates (in particular, clause (F) of the first paragraph of Section 3.3(e) which authorizes the Certificate Administrator or the Trustee to deliver payments on the Residual Certificate to a Person other than the Transferee and clause (G) of the first paragraph of Section 3.3(e) which authorizes the Certificate Registrar to negotiate a mandatory sale of the Residual Certificates, in either case, in the event that the Transferee holds such Residual Certificates in violation of Section 3.3(e)); and the Transferee expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale of the Residual Certificates is or will be to impede the assessment or collection of any tax.
11. The Transferee hereby represents to and for the benefit of the transferor that the Transferee intends to pay any taxes associated with holding the Residual Certificates as they become due, fully understanding that it may incur tax liabilities in excess of any cash flows generated by the Residual Certificates.
E-1-2 |
12. The Transferee will not cause income with respect to the Residual Certificates to be attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of such proposed Transferee or any other United States Tax Person.
13. The Transferee will, in connection with any transfer that it makes of the Residual Certificates, deliver to the Certificate Registrar a representation letter substantially in the form of Exhibit E-2 to the Pooling and Servicing Agreement in which it will represent and warrant, among other things, that it is not transferring the Residual Certificates to impede the assessment or collection of any tax and that it has at the time of such transfer conducted a reasonable investigation of the financial condition of the proposed transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a corporation, a partnership or other entity created or organized in, or under the laws of, the United States or any political subdivision thereof, or an estate or trust whose income from sources without the United States is includible in gross income for United States federal income tax purposes regardless of its connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any consideration paid to it to acquire the Class R Certificate in accordance with U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by computing present values using a discount rate equal to the Federal short-term rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Transferee.
[b] The transfer of the Class R Certificate complies with Treasury Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an “eligible corporation,” as defined in Treasury Regulation Section 1.860E-1(c)(6), as to which income from the Class R Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee’s two fiscal years preceding the Transferee’s fiscal year of the transfer, the Transferee had gross assets for financial reporting purposes (excluding any obligation of a person related to the Transferee within the meaning of Treasury Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a principal purpose for holding or acquiring that asset is to permit the Transferee to satisfy this Section 15(ii)) in excess of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to another “eligible corporation,” as defined in Treasury Regulation Section 1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury Regulation Section 1.860E-1(c)(5)(i), (ii) and (iii) and this Section 15 and the transfer is not to a foreign permanent establishment (within the meaning of an applicable income tax treaty) of such eligible corporation or any other arrangement by which the Class R Certificate will be at any time subject to net tax by a foreign country or possession of the United States; and
E-1-3 |
(iv) the Transferee determined the consideration paid to it to acquire the Class R Certificate, based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Transferee) that it has determined in good faith, is a reasonable amount.
16. The Transferee (i) is, and at the time of transfer will be, a United States Tax Person other than a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, and (ii) is not, and at the time of the transfer will not be, a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person. If the Transferee is a partnership, trust or disregarded entity for U.S. federal income tax purposes, then each person that may be allocated income from the Class R Certificate is, and at the time of transfer will be, a United States Tax Person.
17. The Transferee has historically paid its debts as they have come due and will continue to do so in the future.
E-1-4 |
IN WITNESS WHEREOF, the Transferee has caused this instrument to be executed on its behalf, pursuant to the authority of its Board of Directors, by its ____________________ and its corporate seal to be hereunto attached this ___ day of ___________, ____.
[NAME OF TRANSFEREE] | ||
By: | ||
[Name of Officer] | ||
[Title of Officer] |
E-1-5 |
Personally appeared before me the above named , known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this day of , 20 .
NOTARY PUBLIC | |
COUNTY OF _____________________ | |
STATE OF _______________________ | |
My commission expires the day of , 20 . |
E-1-6 |
EXHIBIT
E-2
FORM OF TRANSFEROR AFFIDAVIT AND AGREEMENT (CLASS R)
_______________, 20__
Wells
Fargo Bank, National Association,
as Certificate Registrar
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attention: Bondholder Services – Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class R Certificates evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a Transfer Affidavit and Agreement in the form attached to the Pooling and Servicing Agreement. The Transferor has no knowledge or reason to know that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.
E-2-1 |
4. The Transferor does not know and has no reason to know that the Transferee is not a Permitted Transferee, is not a United States Tax Person or a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or, may be owned pursuant to the applicable partnership agreement) directly or indirectly (other than through a U.S. corporation) by any person that is not a United States Tax Person, is a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty, of any United States Tax Person, or is a Person with respect to which income on the Residual Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of any applicable income tax treaty.
5. The Transferor does not know and has no reason to know that the Transferee will not honor the restrictions on subsequent transfers by the Transferee under the Transfer Affidavit and Agreement, delivered in connection with this transfer.
Very truly yours, | ||||
(Transferor) | ||||
By: | ||||
Name: | ||||
Title: |
E-2-2 |
Personally appeared before me the above named , known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this day of , 20 .
NOTARY PUBLIC | |
COUNTY OF _____________________ | |
STATE OF _______________________ | |
My commission expires the day of , 20 . |
E-2-3 |
EXHIBIT
F
FORM OF REGULATION S CERTIFICATE
Morgan
Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates,
Series 2015-C23, Class ___ (the “Certificates”)
TO: Euroclear
Bank, SA/NV
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Certificates held by you or on your behalf for our account are beneficially owned by non-U.S. person(s). As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”). To the extent that we hold an interest in any of the Certificates on behalf of person(s) other than ourselves, we have received certifications from such person(s) substantially identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Certificates held by you or on your behalf for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $__________ of such beneficial interest in the above Certificates in respect of which we are not able to certify and as to which we understand the exercise of any rights to payments thereon and the exchange for definitive Certificates or for an interest in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: __________, 2015
By: | ||
As, or as agent for, the beneficial owner(s) of the Certificates to which this certificate relates. |
F-1 |
EXHIBIT
G
FORM OF EXCHANGE CERTIFICATION
(“Exchange Certificate”)
__________ __, 201_
TO: The Depository Trust Company
CLEARSTREAM or
Euroclear Bank, SA/NV
Wells
Fargo Bank, National Association,
as Certificate Registrar
This is to notify you as to the transfer of the beneficial interest in $_______________ of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 Commercial Mortgage Pass-Through Certificates, Series 2015-C23, Class __(the “Certificates”).
The undersigned is the owner of a beneficial interest in the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] and requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit account #__________, with respect to $__________ principal denomination of the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the below-named purchaser, account #__________, in the Class __ [Rule 144A Global Certificate] [Regulation S Global Certificate] in the same principal denomination as follows:
Name:
Address:
Taxpayer I.D. No.:
The undersigned hereby represents that this transfer is being made in accordance with an exemption from the provisions of Section 5 of the United States Securities Act of 1933, as amended (the “Securities Act”), which representation is based upon the reasonable belief that the purchaser is [an institution that is not a U.S. Person as defined in Regulation S under the Securities Act] [a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act, and that such purchaser has acquired the Certificates in a transaction effected in accordance with the exemption from the registration requirements of the Securities Act provided by Rule 144A and, if the purchaser has purchased the Certificates for one or more accounts for which it is acting as fiduciary or agent, each such account is a qualified institutional buyer] and that the purchaser is acquiring beneficial interests in the applicable Certificate1 for its own account or for
1 | [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE FOREGOING REPRESENTATION MUST BE PROVIDED TO THE |
G-1 |
one or more institutional accounts for which it is acting as fiduciary or agent in a minimum amount equivalent to not less than U.S.$[FOR PRINCIPAL BALANCE CERTIFICATES: $100,000] [FOR CLASS X CERTIFICATES: $100,000] and integral multiples of U.S. $1 in excess thereof for each such account.
Very truly yours, | ||
[NAME OF HOLDER OF CERTIFICATE] | ||
By: | ||
[Name], [Chief Financial | ||
or other Executive Officer] |
CERTIFICATE REGISTRAR UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.] |
G-2 |
EXHIBIT
H
FORM OF EUROCLEAR BANK OR CLEARSTREAM BANK CERTIFICATE
Morgan
Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates,
Series 2015-C23, Class ___ (the “Certificates”)
TO: Wells
Fargo Bank, National Association, as Certificate Registrar
Attn: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates, Series 2015-C23
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount of the Certificates set forth below (our “Member Organizations”) substantially to the effect set forth in the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), and executed in connection with the above-referenced transaction, U.S. $__________ principal amount of the above-captioned Certificates held by us or on our behalf are beneficially owned by non-U.S. person(s). As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”).
We further certify that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any interest in the Certificates identified above are no longer true and cannot be relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class __ Regulation S Temporary Global Certificate shall be exchanged for an interest in the Class __ Regulation S Permanent Global Certificate (as each such term is defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global Certificate: We hereby agree to hold (and return to the Certificate Administrator upon request) any payments received by us on the Class __ Regulation S Temporary Global Certificate (as defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]
H-1 |
We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated:
[EUROCLEAR BANK, SA/NV, | ||
as operator of the Euroclear System] | ||
or | ||
[CLEARSTREAM] | ||
By: |
H-2 |
EXHIBIT
I
FORM OF INVESTOR CERTIFICATION
(“Investor Certification”)
[Date]
Wells
Fargo Bank, National Association,
as Certificate Administrator
Corporate Trust Office
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”; capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement), executed in connection with the above-referenced transaction, the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [[Certificateholder][Certificate Owner][prospective purchaser] of the Class ___ Certificates][holder of a [B Note][Serviced Companion Loan] with respect to the [_____] Mortgage Loan].
2. In the case of a Registered Certificate, the undersigned has received a copy of the Prospectus.
3. The undersigned is not a Mortgagor, a Manager, an Affiliate of a Mortgagor or Manager or an agent, principal, partner, member, joint venturer, limited partner, employee, representative, director, trustee or advisor of, or any investor in, any of the foregoing.
4. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates and from its accountants and attorneys (such persons, in each case, to be subject to the same requirement of confidentiality) and otherwise from such governmental or banking
I-1 |
authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of the covenants or representations made by it or by any of its Representatives in this certification and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Trust Fund, the Underwriters and the Initial Purchasers for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
6. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.
7. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.
[NAME OF CERTIFYING PARTY] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
I-2 |
EXHIBIT J
FORM OF NRSRO CERTIFICATION (“NRSRO Certification”)
Wells
Fargo Bank, National Association,
as Certificate Administrator
Corporate Trust Office
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
Ladies and Gentlemen:
In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the above-referenced transaction with respect to Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”), the undersigned hereby certifies and agrees as follows:
1. (a) The undersigned is a Rating Agency; or
(b) The undersigned is a nationally recognized statistical rating organization that either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the 17g-5 website pursuant to the provisions of the Pooling and Servicing Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s website), or (y) if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement provided by the 17-g5 Information Provider and executed and delivered in connection with this certification hereto which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s website, including any information that is obtained from the section of the 17g-5 Information Provider’s website that hosts the Depositor’s 17g-5 website related to the Certificates after the Closing Date.
J-1 |
2. The undersigned agrees that each time it accesses the 17g-5 Information Provider’s Website, it is deemed to have recertified that the representations herein contained remain true and correct.
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.
J-2 |
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.
[NRSRO] | |||||
By: | |||||
Name: | |||||
Title: | |||||
Company: | |||||
Dated: [_____]
J-3 |
EXHIBIT
K
FORM OF DISTRIBUTION DATE STATEMENT
[See attached]
K-1 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
DISTRIBUTION DATE STATEMENT
|
||||||||||||
Table of Contents
|
||||||||||||
STATEMENT SECTIONS
|
PAGE(s)
|
|||||||||||
Certificate Distribution Detail
|
2
|
|||||||||||
Certificate Factor Detail
|
3
|
|||||||||||
Exchangeable Class Detail
|
4
|
|||||||||||
Reconciliation Detail
|
5
|
|||||||||||
Other Required Information
|
6
|
|||||||||||
Cash Reconciliation Detail
|
7
|
|||||||||||
Current Mortgage Loan and Property Stratification Tables
|
8-10
|
|||||||||||
Mortgage Loan Detail
|
11
|
|||||||||||
NOI Detail
|
12
|
|||||||||||
Principal Prepayment Detail
|
13
|
|||||||||||
Historical Detail
|
14
|
|||||||||||
Delinquency Loan Detail
|
15
|
|||||||||||
Specially Serviced Loan Detail
|
16-17
|
|||||||||||
Advance Summary
|
18
|
|||||||||||
Modified Loan Detail
|
19
|
|||||||||||
Historical Liquidated Loan Detail
|
20
|
|||||||||||
Historical Bond / Collateral Loss Reconciliation
|
21
|
|||||||||||
Interest Shortfall Reconciliation Detail
|
22-23
|
|||||||||||
Defeased Loan Detail
|
24
|
|||||||||||
Supplemental Reporting
|
25
|
|||||||||||
Depositor
|
Master Servicer/Excluded Mortgage Loan
Special Servicer |
Special Servicer |
Trust Advisor
|
|||||||||
Morgan Stanley Capital I Inc.
1585 Broadway
New York, NY 10036 Contact: General Information Number
Phone Number: (212) 761-4000 |
Wells Fargo Bank, National Association
550 S. Tryon Street, 14th Floor
Charlotte, NC 28202
Contact: REAM_InvestorRelations@wellsfargo.com
Phone Number: (866) 898-1615
|
LNR Partners, LLC
1601 Washington Avenue Suite 700 Miami Beach, FL 33139 Contact: www.lnrpartners.com
Phone Number: (305) 695-5600 |
Pentalpha Surveillance LLC
375 North French Road Suite 100 Amherst, NY 14228 Contact: Don Simon
Phone Number: (203) 660-6100
|
|
||||||||
This report is compiled by Wells Fargo Bank, N.A. from information provided by third parties. Wells Fargo Bank, N.A. has not independently confirmed the accuracy of the information.
Please visit www.ctslink.com for additional information and special notices. In addition, certificateholders may register online for email notification when special notices are posted. For information or assistance please call 866-846-4526.
|
Page 1 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Certificate Distribution Detail
|
|||||||||||||||||||||||||||||||||||
Class (2)
|
CUSIP
|
Pass-Through
Rate
|
Original
Balance
|
Beginning
Balance
|
Principal
Distribution
|
Interest
Distribution
|
Prepayment
Premium
|
Realized Loss/
Additional Trust
Fund Expenses
|
Total
Distribution
|
Ending
Balance
|
Current
Subordination
Level (1)
|
||||||||||||||||||||||||
A-1
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
A-2
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
A-SB
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
A-3
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
A-4
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
A-S |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
B
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
C
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
D
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
E
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
F |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
G |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00 | |||||||||||||||||||||||||
H |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
V
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
R
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||||
Totals
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||||||
Class
|
CUSIP
|
Pass-Through
Rate
|
Original
Notional
Amount
|
Beginning
Notional
Amount
|
Interest
Distribution
|
Prepayment
Premium
|
Total
Distribution
|
Ending
Notional
Amount
|
|||||||||||||||||||||||||||
X-A |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||||||||
X-B |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||||||||
X-FG |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||||||||
X-H |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||||||||
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate to the designated class and dividing the result by (A).
|
|||||||||||||||||||||||||||||||||||
(2) Class A-S, Class B, Class C all represent the “Regular Interest” of these respective classes. For details on how the balances and payments of these “Regular Interests” are split between their respective certificates and the Exchangable Class PST, please refer to page 4.
|
|||||||||||||||||||||||||||||||||||
|
|||||||||||||||||||||||||||||||||||
Page 2 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Certificate Factor Detail
|
|||||||||||||||||||||||
Class
|
CUSIP
|
Beginning
Balance
|
Principal
Distribution
|
Interest
Distribution
|
Prepayment
Premium
|
Realized Loss/
Additional Trust
Fund Expenses
|
Ending
Balance
|
||||||||||||||||
A-1
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
A-2
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
A-SB
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
A-3
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
A-4
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
A-S
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
B
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
C
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
D
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
E
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
F
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
G
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
H |
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
V |
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
R
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||
Class
|
CUSIP
|
Beginning
Notional
Amount
|
Interest
Distribution
|
Prepayment
Premium
|
Ending
Notional
Amount
|
||||||||||||||||||
X-A
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||||
X-B
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||||
X-FG
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||||
X-H
|
0.00000000
|
0.00000000
|
0.00000000
|
0.00000000
|
|||||||||||||||||||
|
Page 3 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Exchangeable Class Detail
|
|||||||||||||||||||||||||||||
|
Class\
Component
|
CUSIP
|
Pass-Through
Rate
|
Original
Balance
|
Beginning
Balance
|
Principal
Distribution
|
Interest
Distribution
|
Prepayment
Premium
|
Realized Loss /
Additional Trust
Fund Expenses
|
Total
Distribution
|
Ending
Balance
|
|||||||||||||||
A-S Regular Interest Breakdown
|
|||||||||||||||||||||||||
A-S (Cert)
|
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
A-S (PST)
|
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
Totals
|
|
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
B Regular Interest Breakdown
|
|||||||||||||||||||||||||
B (Cert)
|
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
B (PST)
|
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
Totals
|
|
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
C Regular Interest Breakdown
|
|||||||||||||||||||||||||
C (Cert)
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||
C (PST)
|
|
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||
Totals
|
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||
Class PST Detail
|
|||||||||||||||||||||||||
Class\
Component
|
CUSIP
|
Pass-Through
Rate
|
Original
Balance
|
Beginning
Balance
|
Principal
Distribution
|
Interest
Distribution
|
Prepayment
Premium
|
Realized Loss /
Additional Trust
Fund Expenses
|
Total
Distribution
|
Ending
Balance
|
|||||||||||||||
PST |
0.000000%
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||
|
Page 4 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Reconciliation Detail
|
|||||||||||||||||||||||||||||
Principal Reconciliation
|
|||||||||||||||||||||||||||||
Stated Beginning
Principal Balance |
Unpaid Beginning
Principal Balance
|
Scheduled Principal
|
Unscheduled
Principal |
Principal
Adjustments |
Realized Loss
|
Stated Ending
Principal Balance
|
Unpaid Ending
Principal Balance
|
Current Principal
Distribution Amount
|
|||||||||||||||||||||
Total
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
Certificate Interest Reconciliation
|
||||||||||||||||||||||||||||||||
Class
|
Accrual
Dates
|
Accrual
Days
|
Accrued
Certificate
Interest
|
Net Aggregate
Prepayment
Interest Shortfall
|
Distributable
Certificate
Interest
|
Distributable
Certificate Interest
Adjustment
|
WAC CAP
Shortfall
|
Additional
Trust Fund
Expenses
|
Interest
Distribution
|
Remaining Unpaid
Distributable
Certificate Interest
|
||||||||||||||||||||||
A-1
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
A-2
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
A-SB
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
A-3
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
A-4
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
X-A |
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
X-B |
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
X-FG |
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
X-H |
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
A-S | 0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
B |
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
C | 0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
D
|
0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
E
|
0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
F | 0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
G
|
0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
H
|
0 | 0 |
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
V
|
0
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
||||||||||||||||||||||
Totals
|
0
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||||||||||||
|
Page 5 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Other Required Information
|
|||||||||||||||||||
Available Distribution Amount (1)
|
0.00
|
||||||||||||||||||
|
|||||||||||||||||||
|
|
||||||||||||||||||
|
|
||||||||||||||||||
|
|
Appraisal Reduction Amount
|
|||||||||||||||||
Loan
Number
|
Appraisal
EffectedReduction |
Cumulative
AmountASER |
Most Recent
DateApp. Red. |
||||||||||||||||
|
|||||||||||||||||||
|
|||||||||||||||||||
|
|||||||||||||||||||
|
|||||||||||||||||||
|
|||||||||||||||||||
Total | |||||||||||||||||||
(1) The Available Distribution Amount includes any Prepayment Premiums.
|
|||||||||||||||||||
Page 6 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Cash Reconciliation Detail
|
|||||||||||
Total Funds Collected
|
Total Funds Distributed
|
||||||||||
Interest:
|
Fees:
|
||||||||||
Interest paid or advanced
|
0.00
|
Master Servicing Fee - Wells Fargo Bank, N.A.
|
0.00
|
||||||||
Interest reductions due to Non-Recoverability Determinations
|
0.00
|
Trustee Fee - Wilmington Trust, National Association
|
0.00
|
||||||||
Interest Adjustments
|
0.00
|
Certificate Administration Fee - Wells Fargo Bank, N.A.
|
0.00
|
||||||||
Deferred Interest
|
0.00
|
CREFC® License Fee
|
0.00
|
||||||||
Net Prepayment Interest Shortfall
|
0.00
|
Trust Advisor Fee - Pentalpha Surveillance LLC
|
0.00
|
||||||||
Net Prepayment Interest Excess
|
0.00
|
Total Fees
|
|
0.00
|
|||||||
Extension Interest
|
0.00
|
Additional Trust Fund Expenses:
|
|||||||||
Interest Reserve Withdrawal
|
0.00
|
||||||||||
Total Interest Collected
|
0.00
|
Reimbursement for Interest on Advances
|
0.00
|
||||||||
ASER Amount
|
0.00
|
||||||||||
Principal:
|
Special Servicing Fee
|
0.00
|
|||||||||
Scheduled Principal
|
0.00
|
Rating Agency Expenses
|
0.00
|
||||||||
Unscheduled Principal
|
0.00
|
Attorney Fees & Expenses
|
0.00
|
||||||||
Principal Prepayments
|
0.00
|
Bankruptcy Expense
|
0.00
|
||||||||
Collection of Principal after Maturity Date
|
0.00
|
Taxes Imposed on Trust Fund
|
0.00
|
||||||||
Recoveries from Liquidation and Insurance Proceeds
|
0.00
|
Non-Recoverable Advances
|
0.00
|
||||||||
Excess of Prior Principal Amounts paid
|
0.00
|
Other Expenses
|
0.00
|
||||||||
Curtailments
|
0.00
|
Total Additional Trust Fund Expenses
|
0.00
|
||||||||
Negative Amortization
|
0.00
|
||||||||||
Principal Adjustments
|
0.00
|
Interest Reserve Deposit
|
0.00
|
||||||||
Total Principal Collected
|
|
0.00 | |||||||||
|
|
Payments to Certificateholders & Others:
|
|||||||||
Other:
|
Interest Distribution
|
0.00
|
|||||||||
Prepayment Penalties/Yield Maintenance
|
0.00
|
Principal Distribution
|
0.00
|
||||||||
Repayment Fees
|
0.00
|
Prepayment Penalties/Yield Maintenance
|
0.00
|
||||||||
Borrower Option Extension Fees
|
0.00
|
Borrower Option Extension Fees
|
0.00
|
||||||||
Equity Payments Received
|
0.00
|
Equity Payments Paid
|
0.00
|
||||||||
Net Swap Counterparty Payments Received
|
0.00
|
Net Swap Counterparty Payments Paid
|
0.00 | ||||||||
Total Other Collected
|
|
0.00 |
Total Payments to Certificateholders & Others
|
0.00
|
|||||||
Total Funds Collected
|
0.00
|
Total Funds Distributed
|
0.00
|
||||||||
Page 7 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
|
||||||||||||||||
Property Type (1)
|
State (1)
|
|||||||||||||||
Property Type
|
# of
Props.
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
State
|
# of
Props.
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
|||
Totals
|
Totals
|
|||||||||||||||
Seasoning | ||||||||||||||||
Seasoning |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
||||||||||
Totals
|
||||||||||||||||
See footnotes on last page of this section.
|
||||||||||||||||
Page 8 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
|
||||||||||||||||
Scheduled Balance
|
Anticipated Remaining Term (ARD and Balloon Loans)
|
|||||||||||||||
Scheduled
Balance
|
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
Anticipated Remaining
Term (2) |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
|||
Totals
|
||||||||||||||||
Remaining Amortization Term (ARD and Balloon Loans) | ||||||||||||||||
|
Remaining Amortization
Term |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
|||||||||
Totals
|
|
|
|
|||||||||||||
|
||||||||||||||||
Note Rate
|
||||||||||||||||
Note
Rate
|
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
|
|
|
|
|
|
|
|||
Totals
|
||||||||||||||||
Remaining Stated Term (Fully Amortizing Loans) | ||||||||||||||||
Remaining Stated
Term |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
||||||||||
Totals
|
||||||||||||||||
Totals
|
||||||||||||||||
See footnotes on last page of this section.
|
||||||||||||||||
Page 9 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
|
||||||||||||||||
Age of Most Recent NOI
|
Debt Service Coverage Ratio (3)
|
|||||||||||||||
Age of Most
Recent NOI |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
Debt Service
Coverage Ratio |
# of
loans
|
Scheduled
Balance
|
% of
Agg.
Bal.
|
WAM
(2)
|
WAC
|
Weighted
Avg DSCR (3)
|
|||
Totals
|
Totals
|
|||||||||||||||
(1) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-Off Date balance of each property as disclosed in the offering document.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the Anticipated Repayment Date, if applicable, and the Maturity Date.
(3) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In all cases the most current DSCR provided by the Master Servicer is used. To the extent that no DSCR is provided by the Master Servicer, information from the offering document is used. The DSCRs reported by the Master Servicer may be based on a period of less than 12 months. Regardless, DSCRs are normalized based on the Most Recent Financial as of Start and End Dates as reported on the NOI Detail page of this statement. The Certificate Administrator makes no representations as to the accuracy of the data provided by the borrower for this calculation.
|
||||||||||||||||
|
||||||||||||||||
Page 10 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Mortgage Loan Detail
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||
Loan
Number
|
ODCR
|
Property
Type (1)
|
City
|
State
|
Interest
Payment
|
Principal
Payment
|
Gross
Coupon
|
Anticipated
Repayment
Date
|
Maturity
Date
|
Neg.
Amort
(Y/N)
|
Beginning
Scheduled
Balance
|
Ending
Scheduled
Balance
|
Paid
Thru
Date
|
Appraisal
Reduction
Date
|
Appraisal
Reduction
Amount
|
Res.
Strat.
(2)
|
Mod.
Code
(3)
|
|||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||
Totals
|
(1) Property Type Code
|
(2) Resolution Strategy Code
|
(3) Modification Code
|
|||||||||||||||||||||||||||
MF
|
-
|
Multi-Family
|
OF
|
-
|
Office
|
1
|
-
|
Modification
|
6
|
-
|
DPO
|
10
|
-
|
Deed in Lieu Of
|
1
|
-
|
Maturity Date Extension
|
6
|
-
|
Capitalization of Interest
|
|||||||||
RT
|
-
|
Retail
|
MU
|
-
|
Mixed Use
|
2
|
-
|
Foreclosure
|
7
|
-
|
REO
|
Foreclosure
|
2
|
-
|
Amortization Change
|
7
|
-
|
Capitalization of Taxes
|
|||||||||||
HC
|
-
|
Health Care
|
LO
|
-
|
Lodging
|
3
|
-
|
Bankruptcy
|
8
|
-
|
Resolved
|
11
|
-
|
Full Payoff
|
3
|
-
|
Principal Write-Off
|
8
|
-
|
Principal Write-Off
|
|||||||||
IN
|
-
|
Industrial
|
SS
|
-
|
Self Storage
|
4
|
-
|
Extension
|
9
|
-
|
Pending Return
|
12
|
-
|
Reps and Warranties
|
4
|
-
|
Blank
|
9
|
-
|
Combination
|
|||||||||
WH
|
-
|
Warehouse
|
OT
|
-
|
Other
|
5
|
-
|
Note Sale
|
to Master Servicer
|
13
|
-
|
Other or TBD
|
5
|
-
|
Temporary Rate Reduction
|
||||||||||||||
MH
|
-
|
Mobile Home Park
|
|||||||||||||||||||||||||||
|
Page 11 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
NOI Detail
|
|||||||||||
Loan
Number
|
ODCR
|
Property
Type
|
City
|
State
|
Ending
Scheduled
Balance
|
Most
Recent
Fiscal NOI (1)
|
Most
Recent
NOI (1)
|
Most Recent
NOI Start
Date
|
Most Recent
NOI End
Date
|
||
|
|
||||||||||
Total
|
|||||||||||
(1) The Most Recent Fiscal NOI and Most Recent NOI fields correspond to the financial data reported by the Master Servicer. An NOI of 0.00 means the Master Servicer did not report NOI figures in their loan level reporting.
|
Page 12 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Principal Prepayment Detail
|
||||||||
Loan Number
|
Loan Group
|
Offering Document
Cross-Reference
|
Principal Prepayment Amount
|
Prepayment Penalties
|
||||
Payoff Amount
|
Curtailment Amount
|
Prepayment Premium
|
Yield Maintenance Premium
|
|||||
|
||||||||
Totals
|
||||||||
|
Page 13 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Historical Detail | ||||||||||||
Delinquencies
|
Prepayments
|
Rate and Maturities
|
||||||||||
Distribution
Date
|
30-59 Days
#
|
60-89 Days
#
|
90 Days or More
#
|
Foreclosure
#
|
REO
#
|
Modifications
#
|
Curtailments
#
|
Payoff
#
|
Next Weighted Avg.
Coupon Remit
|
WAM
|
||
|
||||||||||||
Note: Foreclosure and REO Totals are excluded from the delinquencies.
|
||||||||||||
Page 14 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Delinquency Loan Detail
|
|||||||||||||||
Loan Number
|
Offering
Document
Cross-Reference
|
# of
Months
Delinq.
|
Paid Through
Date
|
Current
P & I
Advances
|
Outstanding
P & I
Advances **
|
Status of
Mortgage
Loan (1)
|
Resolution
Strategy
Code (2)
|
Servicing
Transfer Date
|
Foreclosure
Date
|
Actual
Principal Balance
|
Outstanding
Servicing
Advances
|
Bankruptcy
Date
|
REO
Date
|
||
|
|||||||||||||||
Totals
|
(1) Status of Mortgage Loan
|
(2) Resolution Strategy Code
|
|||||||||||||||||||||||
A
|
-
|
Payment Not Received
|
0
|
-
|
Current
|
4
|
-
|
Assumed Scheduled Payment
|
1
|
-
|
Modification
|
6
|
-
|
DPO
|
10 | - |
Deed In Lieu Of
|
|||||||
|
|
But Still in Grace Period
|
1
|
-
|
One Month Delinquent
|
(Performing Matured Balloon)
|
2
|
-
|
Foreclosure
|
7
|
-
|
REO
|
Foreclosure
|
|||||||||||
|
|
Or Not Yet Due
|
2
|
-
|
Two Months Delinquent
|
5
|
-
|
Non Performing Matured Balloon
|
3
|
-
|
Bankruptcy
|
8
|
-
|
Resolved
|
11 | - |
Full Payoff
|
|||||||
B
|
-
|
Late Payment But Less
|
3
|
-
|
Three or More Months Delinquent
|
|
|
|
4
|
-
|
Extension
|
9
|
-
|
Pending Return
|
12 | - |
Reps and Warranties
|
|||||||
|
|
Than 1 Month Delinquent
|
|
|
|
|
5
|
-
|
Note Sale
|
|
|
to Master Servicer | 13 | - |
Other or TBD
|
|||||||||
** Outstanding P & I Advances include the current period advance.
|
||||||||||||||||||||||||
Page 15 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Specially Serviced Loan Detail - Part 1
|
|||||||||||||||||
Distribution
Date
|
Loan
Number
|
Offering
Document
Cross-Reference
|
Servicing
Transfer
Date
|
Resolution
Strategy
Code (1)
|
Scheduled
Balance
|
Property
Type (2)
|
State
|
Interest
Rate
|
Actual
Balance
|
Net
Operating
Income
|
NOI
Date
|
DSCR |
Note
Date
|
Maturity
Date
|
Remaining
Amortization
Term
|
||
|
|||||||||||||||||
|
(1) Resolution Strategy Code
|
(2) Property Type Code
|
|||||||||||||||||||
1
|
-
|
Modification
|
6
|
-
|
DPO
|
10
|
-
|
Deed In Lieu Of
|
MF
|
-
|
Multi-Family
|
OF
|
-
|
Office
|
||||||
2
|
-
|
Foreclosure
|
7
|
-
|
REO
|
Foreclosure
|
RT
|
-
|
Retail
|
MU
|
-
|
Mixed use
|
||||||||
3
|
-
|
Bankruptcy
|
8
|
-
|
Resolved
|
11
|
-
|
Full Payoff
|
HC
|
-
|
Health Care
|
LO
|
-
|
Lodging
|
||||||
4
|
-
|
Extension
|
9
|
-
|
Pending Return
|
12
|
-
|
Reps and Warranties
|
IN
|
-
|
Industrial
|
SS
|
-
|
Self Storage
|
||||||
5
|
-
|
Note Sale
|
to Master Servicer
|
13
|
-
|
Other or TBD
|
WH
MH |
-
- |
Warehouse
Mobile Home Park |
OT
|
-
|
Other
|
Page 16 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Specially Serviced Loan Detail - Part 2
|
|||||||||||
Distribution
Date
|
Loan
Number
|
Offering
Document
Cross-Reference
|
Resolution
Strategy
Code (1)
|
Site
Inspection
Date
|
Phase 1 Date
|
Appraisal
Date
|
Appraisal
Value
|
Other REO
Property Revenue
|
Comment
|
||
|
|
||||||||||
(1) Resolution Strategy Code
|
|||||||||||
1
|
-
|
Modification
|
6
|
-
|
DPO
|
10
|
-
|
Deed In Lieu Of
|
|||
2
|
-
|
Foreclosure
|
7
|
-
|
REO
|
Foreclosure
|
|||||
3
|
-
|
Bankruptcy
|
8
|
-
|
Resolved
|
11
|
-
|
Full Payoff
|
|||
4
|
-
|
Extension
|
9
|
-
|
Pending Return
|
12
|
-
|
Reps and Warranties
|
|||
5
|
-
|
Note Sale
|
to Master Servicer
|
13
|
-
|
Other or TBD
|
Page 17 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Advance Summary
|
||||||
Current P&I
Advances
|
Outstanding P&I
Advances
|
Outstanding Servicing
Advances
|
Current Period Interest
on P&I and Servicing
Advances Paid
|
|||
|
||||||
Totals
|
0.00
|
0.00
|
0.00
|
0.00
|
||
|
Page 18 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Modified Loan Detail
|
|||||||||
Loan
Number
|
Offering
Document
Cross-Reference
|
Pre-Modification
Balance
|
Post-Modification
Balance
|
Pre-Modification
Interest Rate
|
Post-Modification
Interest Rate
|
Modification
Date
|
Modification Description
|
||
|
|
||||||||
Totals
|
|||||||||
|
Page 19 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Historical Liquidated Loan Detail
|
||||||||||||||
Distribution
Date
|
ODCR
|
Beginning
Scheduled
Balance
|
Fees,
Advances,
and Expenses *
|
Most Recent
Appraised
Value or BPO
|
Gross Sales
Proceeds or
Other Proceeds
|
Net Proceeds
Received on
Liquidation
|
Net Proceeds
Available for
Distribution
|
Realized
Loss to Trust
|
Date of Current
Period Adj.
to Trust
|
Current Period
Adjustment
to Trust
|
Cumulative
Adjustment
to Trust
|
Loss to Loan
with Cum
Adj. to Trust
|
||
|
||||||||||||||
Current Total
|
||||||||||||||
Cumulative Total
|
||||||||||||||
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
|
||||||||||||||
|
Page 20 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Historical Bond/Collateral Loss Reconciliation Detail
|
|||||||||||||
Distribution
Date
|
Offering
Document
Cross-Reference
|
Beginning
Balance
at Liquidation
|
Aggregate
Realized Loss
on Loans
|
Prior Realized
Loss Applied
to Certificates
|
Amounts
Covered by
Credit Support
|
Interest
(Shortages)/
Excesses
|
Modification
/Appraisal
Reduction Adj.
|
Additional
(Recoveries)
/Expenses
|
Realized Loss
Applied to
Certificates to Date
|
Recoveries of
Realized Losses
Paid as Cash
|
(Recoveries)/
Losses Applied to
Certificate Interest
|
||
|
|||||||||||||
Totals
|
|||||||||||||
|
Page 21 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Interest Shortfall Reconciliation Detail - Part 1
|
||||||||||||
Offering
Document
Cross-Reference
|
Stated Principal
Balance at
Contribution
|
Current Ending
Scheduled
Balance
|
Special Servicing Fees
|
Non-Recoverable
(Scheduled
Interest)
|
Interest on
Advances
|
Modified Interest
Rate (Reduction)
/Excess
|
||||||
Monthly
|
Liquidation
|
Work Out
|
ASER
|
(PPIS) Excess
|
||||||||
|
|
|||||||||||
|
||||||||||||
Totals
|
|
|||||||||||
|
Page 22 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Interest Shortfall Reconciliation Detail - Part 2
|
||||||||
Offering
|
Stated Principal | Current Ending |
Reimb of Advances to the Servicer
|
Other (Shortfalls)/ Refunds |
||||
Document
|
Balance at
|
Scheduled
|
Current Month
|
Left to Reimburse
|
Comments
|
|||
Cross-Reference
|
Contribution
|
Balance
|
Master Servicer
|
|||||
Totals
|
||||||||
Interest Shortfall Reconciliation Detail Part 2 Total
|
0.00
|
|||||||
Interest Shortfall Reconciliation Detail Part 1 Total
|
0.00
|
|||||||
Total Interest Shortfall Allocated to Trust
|
0.00
|
|||||||
Page 23 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Defeased Loan Detail
|
|||||||
Loan Number
|
Offering Document
Cross-Reference
|
Ending Scheduled
Balance
|
Maturity Date
|
Note Rate
|
Defeasance Status
|
||
Totals
|
|||||||
Page 24 of 25 |
![]() Wells Fargo Bank, N.A.
Corporate Trust Services
8480 Stagecoach Circle
Frederick, MD 21701-4747
|
Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23
Commercial Mortgage Pass-Through Certificates
Series 2015-C23 |
For Additional Information please contact
CTSLink Customer Service1-866-846-4526
Reports Available www.ctslink.com
|
|||
Payment Date:
|
7/17/15
|
||||
Record Date:
|
6/30/15
|
||||
Determination Date:
|
7/11/15
|
Supplemental Reporting
|
||
Other Disclosable Special Servicer Fees
|
||
Page 25 of 25 |
EXHIBIT
L
FORM OF TRUST ADVISOR ANNUAL REPORT
Report
Date: Report will be delivered annually no later than [INSERT DATE].
Transaction: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates,
Series 2015-C23
Trust Advisor: Pentalpha Surveillance LLC
Special Servicer: [ ]
Controlling Class Representative: [ ]
I. Executive Summary
Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the above-referenced transaction, as well as the items listed below, the Trust Advisor has undertaken a limited review of the Special Servicer’s operational practices in light of the Servicing Standard and the requirements of the Pooling and Servicing Agreement and has discussed with the Special Servicer its stated policies and procedures, operational controls and protocols, risk management systems, intellectual resources, the Special Servicer’s reasoning for believing it is in compliance with the Pooling and Servicing Agreement and other pertinent information the Trust Advisor considers relevant, in each case, insofar as such information relates to the resolution or liquidation of the Specially Serviced Mortgage Loans and REO Properties and provides this Trust Advisor Annual Report.
No information or any other content included in this Trust Advisor Annual Report contravenes any provision of the Pooling and Servicing Agreement. This Trust Advisor Annual Report sets forth the Trust Advisor’s assessment of the Special Servicer’s performance of its duties under the Pooling and Servicing Agreement during the prior calendar year on a platform-level basis with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties during the prior calendar year.
Subject to the restrictions in the Pooling and Servicing Agreement, this Trust Advisor Annual Report (A) identifies any material deviations, if any (i) from the Servicing Standard and (ii) from the Special Servicer’s obligations under the Pooling and Servicing Agreement with respect to the resolution or liquidation of Specially Serviced Mortgage Loans and REO Properties and (B) complies with all of the confidentiality requirements described in the Pooling and Servicing Agreement.
In connection with the assessment set forth in this report, the Trust Advisor:
1. | Reviewed any annual compliance statement delivered to the Trust Advisor by the Special Servicer pursuant to Section 13.9 the Pooling and Servicing Agreement and the following issues were noted therein: [ ] |
L-1 |
Trust Advisor Actions:
2. | Reviewed any annual independent public accountants’ servicing report delivered to the Trust Advisor by the Special Servicer pursuant to Section 13.11 of the Pooling and Servicing Agreement and the following issues were noted therein: [ ] |
Trust Advisor Actions:
3. | Reviewed any [Final] Asset Status Report and other information or communications delivered to the Trust Advisor and the following issues were noted therein: [ ] |
Trust Advisor Actions:
Based on such review and/or consultation with, or other information provided by the Special Servicer, and on the Trust Advisor’s performance of its obligations under the Pooling and Servicing Agreement, the Trust Advisor [does] [does not] believe there are material violations of the Special Servicer’s compliance with its obligations under the Pooling and Servicing Agreement.
Qualifications related to the work product undertaken and opinions related to this report:
1. | The Trust Advisor did not participate in, or have access to, the Special Servicer’s and Controlling Class Representative’s discussion(s) regarding any Specially Serviced Mortgage Loan. |
2. | The Special Servicer has the legal authority and responsibility to service the Specially Serviced Mortgage Loans pursuant to the Pooling and Servicing Agreement. The Trust Advisor has no responsibility or authority to alter the standards set forth therein. |
3. | Confidentiality and other contractual restrictions limit the Trust Advisor’s ability to outline herein the details or substance of certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Trust Advisor is given access to by the Special Servicer. However, all such information is considered in preparing this report. |
4. | There are many tasks that the Special Servicer undertakes on an ongoing basis related to Specially Serviced Mortgage Loans. These include, but are not limited to, assumptions, ownership changes, collateral substitutions, capital reserve changes, etc. The Trust Advisor does not participate in discussions regarding such actions. As such, the Trust Advisor has not assessed the Special Servicer’s operational compliance with respect to those types of actions. |
L-2 |
Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement as described herein.
Pentalpha Surveillance LLC | ||
By: | ||
Name: | ||
Title: |
L-3 |
EXHIBIT
M
FORM OF FINANCIAL MARKET PUBLISHERs CERTIFICATION (SECTION 5.4(h))
and CREFC® Certification (Section 5.4(k))
This Certification has been prepared for provision of information to the market data providers listed in the second paragraph below pursuant to the direction of the Depositor or the CRE Finance Council®. If you represent a Financial Market Publisher not listed herein and would like access to the information, please contact CTSLink at (866) 846-4526, or at ctslink.customerservice@wellsfargo.com.
In connection with the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates Series 2015-C23 (the “Certificates”), the undersigned hereby certifies and agrees as follows:
The undersigned is [an employee or agent of BlackRock Financial Management, Inc., Trepp, LLC, Bloomberg L.P., Thomson Reuters, CMBS.com, Inc., Intex Solutions, Inc., Markit Group Limited or a market data provider that has been given access to the Distribution Date Statements, CREFC® reports and supplemental notices on www.ctslink.com by request of the Depositor][an employee or agent of the CRE Finance Council® that has been given access to the Distribution Date Statements and CREFC® reports on www.ctslink.com].
The undersigned agrees that each time it accesses www.ctslink.com, the undersigned is deemed to have recertified that the representation above remains true and correct.
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the agreement pursuant to which the Certificates were issued.
BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and has caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.
[______________________] | ||
By: | ||
Name: | ||
Title: | ||
Phone: | ||
Dated: | E-mail: |
M-1 |
EXHIBIT N-1
[Reserved]
N-1-1 |
EXHIBIT N-2
[Reserved]
N-2-1 |
EXHIBIT O-1
FORM
OF POWER OF ATTORNEY TO MASTER SERVICER
RECORDING REQUESTED BY:
Wells
Fargo Bank, National Association
Commercial Mortgage Servicing
MAC D1086-120
550 South Tryon Street, 14th Floor
Charlotte, North Carolina 28202
Attention: MSBAM 2015-C23 - Asset Manager
Facsimile: (704) 715-0036
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement dated as of June 1, 2015 (the “Agreement”) entered into between Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as master servicer (in such capacity, the “Master Servicer”), excluded mortgage loan special servicer, certificate administrator, certificate registrar, authenticating agent and custodian, LNR Partners, LLC, as general special servicer, Pentalpha Surveillance LLC, as trust advisor, and Wilmington Trust, National Association, as Trustee, relating to the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, and the Trustee hereby constitutes and appoints the Master Servicer, by and through the Master Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the Master Servicer and all properties (“Mortgaged Properties”) administered by the Master Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the Mortgage Loans and Mortgaged Properties; provided however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.
1. | The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan. |
2. | The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such |
O-1-1 |
title insurance was issued; provided that (i) said modification or re-recording, in either instance, does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement. |
3. | The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same. |
4. | The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned. |
5. | The completion of loan assumption agreements. |
6. | The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note. |
7. | The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the mortgage loan secured and evidenced thereby. |
8. | The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note. |
9. | The full enforcement of and preservation of the Trustee’s interests in the Mortgage Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts: |
a. | the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust; |
b. | the preparation and issuance of statements of breach or non-performance; |
c. | the preparation and filing of notices of default and/or notices of sale; |
d. | the cancellation/rescission of notices of default and/or notices of sale; |
e. | the taking of deed in lieu of foreclosure; |
f. | the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust; |
O-1-2 |
g. | the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings; |
h. | the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and |
i. | the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above. |
10. | With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation: |
a. | listing agreements; |
b. | purchase and sale agreements; |
c. | grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same; |
d. | escrow instructions; and |
e. | any and all documents necessary to effect the transfer of property. |
11. | The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property. |
12. | The execution and delivery of the following: |
a. | any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral; |
b. | any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and |
c. | any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset |
O-1-3 |
managers), documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents. |
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
Solely to the extent that the Master Servicer has the power to delegate its rights or obligations under the Agreement, the Master Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The Master Servicer’s attorneys-in-fact shall have no greater authority than that held by the Master Servicer.
Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the Master Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the Master Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the Master Servicer shall promptly forward a copy of same to the Trustee.
This limited power of attorney is not intended to extend the powers granted to the Master Servicer under the Agreement or to allow the Master Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.
The Master Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.
O-1-4 |
This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.
Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.
O-1-5 |
IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for MSBAM 2015-C23 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ______ day of , 2015.
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee, for Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: |
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 | |||
Witness: | ||||
Witness: | ||||
O-1-6 |
STATE OF DELAWARE )
) ss.:
COUNTY OF )
On ________________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary signature |
[SEAL]
My commission expires:
O-1-7 |
EXHIBIT O-2
FORM OF POWER OF ATTORNEY TO Special SERVICER
RECORDING REQUESTED BY:
[insert address]
SPACE ABOVE THIS LINE FOR RECORDER’S USE
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement dated as of June 1, 2015 (the “Agreement”) by and among Morgan Stanley Capital I Inc., as the Depositor, Wells Fargo Bank, National Association, as master servicer, excluded mortgage loan special servicer, certificate administrator, certificate registrar, authenticating agent and custodian, LNR Partners, LLC, as general special servicer, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as trust advisor relating to the Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23, and the Trustee hereby constitutes and appoints [_________________] (the “Special Servicer”), by and through the Special Servicer’s officers and authorized employees, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans serviced by the Special Servicer (the “Mortgage Loans”) and all properties (“REO Properties”) administered by the Special Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items (1) through (13) below with respect to the Mortgage Loans and REO Properties; provided however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the terms of the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.
1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and to draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.
2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting such Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.
O-2-1 |
3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.
4. The conveyance of any property to the mortgage insurer, or the closing of title to any mortgaged property (a “Mortgaged Property”) to be acquired as REO Property, or conveyance of title to any REO Property.
5. The completion of loan assumption agreements and transfers of interest in borrower entities.
6. The full satisfaction/release of a Mortgage or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related promissory note.
7. The assignment of any Mortgage and the related promissory note and other loan documents, in connection with the purchase or repurchase of the Mortgage Loan secured and evidenced thereby.
8. The full assignment of a Mortgage upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related promissory note and other loan documents.
9. The full enforcement of and preservation of the Trustee’s interests in any Mortgage or the related promissory note, and in the proceeds thereof, by way of, including but not limited to, taking title to any Mortgaged Property on behalf of the Trust, foreclosure, the taking of a deed-in-lieu of foreclosure, or the completion of judicial or non-judicial foreclosure and/or any related litigation, including without limitation, guaranty or receivership litigation, or litigation on the note, or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, the initiation or defense of any litigation related to the ownership of any REO Property, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:
a. | the substitution of trustee(s) serving under a deed of trust, in accordance with state law and such deed of trust; |
b. | the preparation and issuance of statements of breach or non-performance; |
c. | the preparation and filing of notices of default and/or notices of sale; |
d. | the cancellation/rescission of notices of default and/or notices of sale; |
e. | the filing, prosecution and defense of claims, and the appearance on behalf of the Trustee, in bankruptcy cases affecting any Mortgage or the related promissory note; |
O-2-2 |
f. | the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings; |
g. | the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; |
h. | the creation of a wholly-owned entity of the Trust for purposes of holding foreclosed property; and |
i. | the preparation and execution of such other documents and the performance of such other actions as may be necessary under the terms of the Mortgage or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above. |
10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:
a. | listing agreements; |
b. | purchase and sale agreements; |
c. | grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same; |
d. | escrow instructions; and |
e. | any and all documents necessary to effect the transfer of property. |
11. The modification or amendment of escrow agreements established for repairs to the Mortgaged Property or reserves for replacement of personal property.
12. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee, solely in its capacity as Trustee, in litigation and to resolve such litigation, provided that such resolution shall not include any admission of fault or wrongdoing by the Trustee or, without the Trustee’s consent, subject the Trustee to any form of injunctive relief.
13. The execution and delivery of the following:
a. | any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral; |
b. | any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; |
c. | any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any |
O-2-3 |
subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, management agreements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents; and |
d. | any and all documents, instruments and certifications as are reasonably necessary to complete or accomplish the Special Servicer’s duties and responsibilities under the Agreement. |
The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.
This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.
Solely to the extent that the Special Servicer has the power to delegate its rights or obligations under the Agreement, the Special Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The Special Servicer’s attorneys-in-fact shall have no greater authority than that held by the Special Servicer.
Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the Special Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein or in the Agreement. If the Special Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, solely in its capacity as Trustee, then the Special Servicer shall promptly forward a copy of same to the Trustee.
O-2-4 |
This limited power of attorney is not intended to extend or limit the powers granted to the Special Servicer under the Agreement or to allow the Special Servicer to take any action with respect to Mortgages, deeds of trust or the related promissory notes not authorized by the Agreement.
The Special Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by the Trustee by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.
This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.
O-2-5 |
IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for MSBAM 2015-C23 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ______ day of , 2015.
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee, for Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 |
|||||
By: | |||||
Name: | |||||
Title: | |||||
Address: |
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 |
||||
Witness: | |||||
Witness: | |||||
O-2-6 |
STATE OF DELAWARE )
) ss.:
COUNTY OF )
On ________________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary signature |
[SEAL]
My commission expires:
O-2-7 |
EXHIBIT
P-1
FORM OF CERTIFICATION
Re: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Transaction”), issued pursuant to the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the Transaction (capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement).
I, [identity of certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 (the “Exchange Act periodic reports”);
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance statement(s) required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreement(s) in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties:
• | Wells Fargo Bank, National Association, as Master Servicer; |
• | LNR Partners, LLC, as General Special Servicer; |
• | Wells Fargo Bank, National Association, as Excluded Mortgage Loan Special Servicer; |
P-1-1 |
• | Pentalpha Surveillance LLC, as Trust Advisor; |
• | Wilmington Trust, National Association, as Trustee; |
• | Wells Fargo Bank, National Association, as Certificate Administrator, Certificate Registrar, Authenticating Agent and Custodian; |
• | [names of sub-servicers] |
Date: [___]
By | ||
Name: | ||
Title: | ||
P-1-2 |
EXHIBIT
P-2
REPORTING SERVICER FORM OF PERFORMANCE CERTIFICATION
Morgan Stanley Capital I Inc.
1585 Broadway
New
York, New York 10036
Attention: Stephen Holmes
Re: Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Transaction”), issued pursuant to the Pooling and Servicing Agreement dated as of June 1, 2015 (the “Pooling and Servicing Agreement”), executed in connection with the Transaction.
Capitalized terms used but not defined herein have the meanings set forth in the [Pooling and Servicing Agreement] [the Subservicing Agreement, dated as of [_] (the “Subservicing Agreement”) between [identify parties] or, if not defined in the Subservicing Agreement, then the meanings set forth in the Pooling and Servicing Agreement].
__________________________________________
I, [identity of certifying individual], hereby certify to [Name of Certifying Person(s) for the Sarbanes-Oxley Certification], the Depositor and its officers, directors and Affiliates (collectively, the “Certification Parties”) as follows, with the knowledge and intent that the Certification Parties will rely on this Certification in connection with the certification concerning the Trust to be signed by an officer of the Depositor and submitted to the Securities and Exchange Commission pursuant to the Sarbanes-Oxley Act of 2002:
1. I [(or an officer supervised by me)] have reviewed the report of [servicing] information provided by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] required in accordance with the Pooling and Servicing Agreement for inclusion in the Annual Report on Form 10-K (“Form 10-K”) relating to the Trust and all reports of information by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] required in accordance with the Pooling and Servicing Agreement for inclusion in the Asset-Backed Issuer Distribution Reports on Form 10-D (“Form 10-D”) relating to the Trust (such reports by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer], collectively, the “Applicable Periodic Reports”);
2. Based on my knowledge, the Applicable Periodic Reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the Applicable Periodic Reports;
3. Based on my knowledge, all of the [distribution], servicing and other information required to be provided in the Applicable Periodic Reports under the provisions of the [Pooling
P-2-1 |
and Servicing/Subservicing] Agreement for the calendar year ending December 31, [____] is included in the Applicable Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer]’s compliance statement under Section [13.9] of the [Pooling and Servicing/Subservicing] Agreement in connection with Item 1123 of Regulation AB, and except as disclosed in the Applicable Periodic Reports, the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] has fulfilled its obligations under the [Pooling and Servicing/Subservicing] Agreement; and
5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required under the [Pooling and Servicing/Subservicing] Agreement to be included in this certification in connection with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been delivered in accordance with the [Pooling and Servicing/Subservicing] Agreement and included as an exhibit to this certification, except as otherwise disclosed in this certification. Any material instances of noncompliance required to be described in such reports have been disclosed in such reports.
In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties: [name of trustee, custodian, certificate administrator or other similar party; name of depositor; name of master servicer; name of trust advisor; name of special servicer; name of other sub-servicer].
This Certification is being signed by me as an officer of the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] responsible for reviewing [or overseeing review of] the activities performed by the [Master Servicer/Special Servicer/Trust Advisor/Certificate Administrator/Custodian/Trustee/Sub-Servicer] under the [Pooling and Servicing/Subservicing] Agreement.
Date: [___]
By | ||
Name: | ||
Title: | ||
P-2-2 |
Exhibit(s)
[List and attach applicable Item 1122 and Item 1123 reports.]
P-2-3 |
EXHIBIT Q
FORM OF EXCHANGE LETTER
[Certificateholder’s letterhead]
Wells Fargo Bank, National Association,
as Certificate Administrator
Corporate Trust Office
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 |
Commercial Mortgage Pass-Through Certificates | |
Series 2015-C23 |
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Pursuant to the terms of the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”; capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement), entered into in connection with the issuance of the Certificates, we hereby (i) certify that as of the date above, the undersigned is the beneficial owner of the Exchangeable Certificate set forth below under “Exchangeable Certificates to be Surrendered”, is duly authorized to deliver this notice to the Certificate Administrator and that such power has not been granted or assigned to any other Person and the Certificate Administrator may conclusively rely upon this notice and (ii) give notice of our intent to present and surrender the Exchangeable Certificates set forth below under “Exchangeable Certificates to be Surrendered” and all of our right, title and interest in and to such Exchangeable Certificates, including all payments of interest thereon received after [_____________], in exchange for the corresponding Exchangeable Certificates set forth below. We propose an Exchange Date of [______].
We agree that upon such exchange, our interests in the portion(s) of the Exchangeable Certificates surrendered in exchange shall be reduced and our interest in the portion(s) of the Exchangeable Certificates received in such exchange shall be increased.
Exchangeable Certificates to be Surrendered |
Exchangeable Certificates to be Received | |||||
CUSIP |
Outstanding Certificate Balance |
Initial Certificate Balance |
CUSIP |
Q-1 |
Our Depository participant number is [________].
Sincerely, | ||
By: | ||
Name: | ||
Title: | ||
[Medallion Stamp Guarantee] |
Q-2 |
EXHIBIT R
[Reserved]
R-1 |
EXHIBIT S-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Stephen Holmes
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”) and executed in connection with the issuance of the Certificates. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Depositor, that:
1. The Transferor is the lawful owner of the right to receive the Excess Servicing Fees (the “Excess Servicing Fee Right”), with the full right to transfer the Excess Servicing Fee Right free from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of the Excess Servicing Fee Right pursuant to the Securities Act or any state securities laws.
S-1-1 |
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
S-1-2 |
EXHIBIT S-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Stephen Holmes
Wells Fargo Bank, National Association
Commercial Mortgage Servicing
MAC D1086-120
550 South Tryon Street, 14th Floor
Charlotte, North Carolina 28202
Attention: MSBAM 2015-C23 Asset Manager
Facsimile: (704) 715-0036
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 (the “Certificates”) |
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of the Excess Servicing Fee Right established under the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”) and executed in connection with the above-referenced transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as the Depositor and the Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess Servicing Fees (the “Excess Servicing Fee Right”) for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing Fee Right has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee, Certificate Administrator or the Certificate Registrar is obligated so to register or qualify the Excess Servicing Fee Right, and (c) the Excess Servicing Fee Right may not be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state
S-2-1 |
securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and (A) the Depositor has received a certificate from the prospective transferor substantially in the form attached as Exhibit S-1 to the Pooling and Servicing Agreement, and (B) each of the Master Servicer and the Depositor have received a certificate from the prospective transferee substantially in the form attached as Exhibit S-2 to the Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer the Excess Servicing Fee Right or any interest therein except in compliance with the provisions of Section 8.10 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act, would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Excess Servicing Fee Right pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Excess Servicing Fee Right and any payments thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d) the nature, performance and servicing of the Mortgage Loans, and (e) all related matters that it has requested.
6. The Transferee is (a) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or (b) an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Excess Servicing Fee Right; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.
S-2-2 |
7. The Transferee agrees (i) to keep all information relating to the Trust, the Trust Fund and the parties to the Pooling and Servicing Agreement, and made available to it, confidential, (ii) not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificate pursuant to the Securities Act, and (iii) not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such holder’s auditors, legal counsel and regulators, except to the extent such disclosure is required by law, court order or other legal requirement or to the extent such information is of public knowledge at the time of disclosure by such holder or has become generally available to the public other than as a result of disclosure by such holder; provided, however, that such holder may provide all or any part of such information to any other Person who is contemplating an acquisition of the Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing such prospective acquisition and (y) agrees in writing to keep such information confidential, not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificates pursuant to the Securities Act and not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such Persons’ auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing Fee Right shall not have any rights under the Pooling and Servicing Agreement except as set forth in Section 8.10 of the Pooling and Servicing Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent provided in the Pooling and Servicing Agreement.
Very truly yours, | ||
By: | ||
Name: | ||
Title: |
cc: | Wells Fargo Bank, National Association |
Legal Department |
301 South College Street |
TW-30 |
Charlotte, North Carolina 28288-0630 |
Attention: Commericial Mortgage Servicing Legal Support | |
Reference: MSBAM 2015-C23 |
Facsimile: (704) 383-0353 |
with a copy to:
K&L Gates LLP
Hearst Tower
S-2-3 |
214 North Tryon Street
Charlotte, NC 28202
Attention: Stacy G. Ackermann
Facsimile: (704) 353-3190
S-2-4 |
EXHIBIT T
FORM OF NOTE HOLDER CERTIFICATION
[Date]
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
Re: | Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23, Commercial Mortgage Pass-Through Certificates, Series 2015-C23 |
In accordance with the requirements for obtaining certain information under the Pooling and Servicing Agreement, dated as of June 1, 2015 (the “Pooling and Servicing Agreement”; capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement), executed in connection with the above-referenced transaction, the undersigned hereby certifies and agrees as follows:
1. The undersigned is a holder of the following Serviced Companion Loan, B Note or Non-Serviced Companion Loan: [_]
2. The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.
3. The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website pursuant to the provisions of the Pooling and Servicing Agreement.
In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation of the related Certificates and from its accountants and attorneys (such persons, in each case, to be subject to the same requirement of confidentiality) and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.
The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.
T-1 |
4. The undersigned shall be fully liable for any breach of the covenants or representations made by it or by any of its Representatives in this certification and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Trust Fund, the Underwriters and the Initial Purchasers for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.
5. The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations contained herein remain true and correct.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.
[___________________] | ||
By: | ||
Title: | ||
Company: | ||
Phone: |
T-2 |
SCHEDULE I
Bank of America Loan Schedule
(See attached)
Schedule I-1 |
MSBAM 2015-C23 | ||||||||||||||||||||||||||||||
Mortgage Loan Schedule | ||||||||||||||||||||||||||||||
BANA | ||||||||||||||||||||||||||||||
Mortgage Loan Seller |
Loan ID | Property Name | Cut-off
Date Balance |
Address | City | State | Note Date | Maturity Date |
Mortgage Rate |
Original
Term to Maturity (mos.) |
Remaining
Term to Maturity (mos.) |
Original
Amortization Term (mos.) |
ARD
(Yes/No) |
Primary
Servicing Fee Rate |
Pari
Passu Loan Primary Servicing Fee Rate | |||||||||||||||
BANA | 3 | Fairfax Corner | $58,500,000 | 4100 Monument Corner Drive | Fairfax | VA | 5/11/2015 | 6/1/2025 | 4.043% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 5 | Georgian Terrace | $47,000,000 | 659 Peachtree Street | Atlanta | GA | 5/5/2015 | 6/1/2025 | 4.423% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 10 | Fairfield Inn Chelsea | $32,459,862 | 116 West 28th Street | New York | NY | 4/29/2015 | 5/1/2025 | 4.340% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 11 | US StorageMart Portfolio | $31,231,500 | 3/26/2015 | 4/6/2020 | 3.798% | 60 | 58 | 0 | No | 0.00000% | 0.00250% | ||||||||||||||||||
BANA | 11.01 | US StorageMart Portfolio - 50 Wallabout Street | $1,525,694 | 50 Wallabout St | Brooklyn | NY | ||||||||||||||||||||||||
BANA | 11.02 | US StorageMart Portfolio - 250 Flanagan Way | $1,266,205 | 250 Flanagan Way | Secaucus | NJ | ||||||||||||||||||||||||
BANA | 11.03 | US StorageMart Portfolio - 6700 River Road | $1,193,753 | 6700 River Rd | West New York | NJ | ||||||||||||||||||||||||
BANA | 11.04 | US StorageMart Portfolio - 1015 North Halsted Street | $952,917 | 1015 N Halsted St | Chicago | IL | ||||||||||||||||||||||||
BANA | 11.05 | US StorageMart Portfolio - 7536 Wornall Road | $921,118 | 7536 Wornall Rd | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.06 | US StorageMart Portfolio - 640 SW 2nd Avenue | $884,684 | 640 SW 2nd Ave | Miami | FL | ||||||||||||||||||||||||
BANA | 11.07 | US StorageMart Portfolio - 4920 NW 7th Street | $880,814 | 4920 NW 7th St | Miami | FL | ||||||||||||||||||||||||
BANA | 11.08 | US StorageMart Portfolio - 9925 SW 40th Street | $860,909 | 9925 SW 40th St | Miami | FL | ||||||||||||||||||||||||
BANA | 11.09 | US StorageMart Portfolio - 9220 West 135th Street | $774,115 | 9220 West 135th St | Overland Park | KS | ||||||||||||||||||||||||
BANA | 11.10 | US StorageMart Portfolio - 980 4th Avenue | $751,683 | 980 4th Ave | Brooklyn | NY | ||||||||||||||||||||||||
BANA | 11.11 | US StorageMart Portfolio - 405 South Federal Highway | $748,050 | 405 South Federal Hwy | Pompano Beach | FL | ||||||||||||||||||||||||
BANA | 11.12 | US StorageMart Portfolio - 11001 Excelsior Boulevard | $721,465 | 11001 Excelsior Blvd | Hopkins | MN | ||||||||||||||||||||||||
BANA | 11.13 | US StorageMart Portfolio - 11325 Lee Highway | $710,518 | 11325 Lee Hwy | Fairfax | VA | ||||||||||||||||||||||||
BANA | 11.14 | US StorageMart Portfolio - 2021 Griffin Road | $698,528 | 2021 Griffin Rd | Fort Lauderdale | FL | ||||||||||||||||||||||||
BANA | 11.15 | US StorageMart Portfolio - 400 West Olmos Drive | $687,581 | 400 W Olmos Dr | San Antonio | TX | ||||||||||||||||||||||||
BANA | 11.16 | US StorageMart Portfolio - 14151 Wyandotte Street | $641,707 | 14151 Wyandotte St | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.17 | US StorageMart Portfolio - 5979 Butterfield Road | $617,728 | 5979 Butterfield Rd | Hillside | IL | ||||||||||||||||||||||||
BANA | 11.18 | US StorageMart Portfolio - 115 Park Avenue | $594,791 | 115 Park Ave | Basalt | CO | ||||||||||||||||||||||||
BANA | 11.19 | US StorageMart Portfolio - 3500 Southwest 160th Avenue | $594,270 | 3500 SW 160th Ave | Miramar | FL | ||||||||||||||||||||||||
BANA | 11.20 | US StorageMart Portfolio - 2445 Crain Highway | $585,929 | 2445 Crain Hwy | Waldorf | MD | ||||||||||||||||||||||||
BANA | 11.21 | US StorageMart Portfolio - 100 West North Avenue | $579,674 | 100 West North Ave | Lombard | IL | ||||||||||||||||||||||||
BANA | 11.22 | US StorageMart Portfolio - 2727 Shermer Road | $553,609 | 2727 Shermer Rd | Northbrook | IL | ||||||||||||||||||||||||
BANA | 11.23 | US StorageMart Portfolio - 15201 Antioch Road | $542,141 | 15201 Antioch Rd | Overland Park | KS | ||||||||||||||||||||||||
BANA | 11.24 | US StorageMart Portfolio - 2450 Mandela Parkway | $513,991 | 2450 Mandela Pkwy | Oakland | CA | ||||||||||||||||||||||||
BANA | 11.25 | US StorageMart Portfolio - 184-02 Jamaica Avenue | $505,651 | 184-02 Jamaica Ave | Hollis | NY | ||||||||||||||||||||||||
BANA | 11.26 | US StorageMart Portfolio - 9012 NW Prairie View Road | $489,491 | 9012 NW Prairie View Rd | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.27 | US StorageMart Portfolio - 16101 West 95th Street | $450,915 | 16101 W 95th St | Lenexa | KS | ||||||||||||||||||||||||
BANA | 11.28 | US StorageMart Portfolio - 3100 North Mannheim | $410,255 | 3100 North Mannheim | Franklin Park | IL | ||||||||||||||||||||||||
BANA | 11.29 | US StorageMart Portfolio - 9580 Potranco Road | $403,999 | 9580 Potranco Rd | San Antonio | TX | ||||||||||||||||||||||||
BANA | 11.30 | US StorageMart Portfolio - 18025 Monterey Street | $401,914 | 18025 Monterey St | Morgan Hill | CA | ||||||||||||||||||||||||
BANA | 11.31 | US StorageMart Portfolio - 9 N 004 Route 59 | $394,095 | 9N 004 Route 59 | Elgin | IL | ||||||||||||||||||||||||
BANA | 11.32 | US StorageMart Portfolio - 5115 Clayton Road | $388,882 | 5115 Clayton Rd | Concord | CA | ||||||||||||||||||||||||
BANA | 11.33 | US StorageMart Portfolio - 9702 West 67th Street | $385,754 | 9702 W 67th St | Merriam | KS | ||||||||||||||||||||||||
BANA | 11.34 | US StorageMart Portfolio - 794 Scenic Highway | $384,712 | 794 Scenic Hwy | Lawrenceville | GA | ||||||||||||||||||||||||
BANA | 11.35 | US StorageMart Portfolio - 12430 Bandera Road | $379,499 | 12430 Bandera Rd | Helotes | TX | ||||||||||||||||||||||||
BANA | 11.36 | US StorageMart Portfolio - 4000 South Providence Road | $375,328 | 4000 S Providence Rd | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.37 | US StorageMart Portfolio - 2743 San Pablo Avenue | $364,903 | 2743 San Pablo Ave | Oakland | CA | ||||||||||||||||||||||||
BANA | 11.38 | US StorageMart Portfolio - 819 N. Eola Road | $358,647 | 819 N. Eola Rd | Aurora | IL | ||||||||||||||||||||||||
BANA | 11.39 | US StorageMart Portfolio - 2506 West Worley Street | $358,126 | 2506 W Worley St | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.40 | US StorageMart Portfolio - 15601 FM 1325 | $354,477 | 15601 FM 1325 | Austin | TX | ||||||||||||||||||||||||
BANA | 11.41 | US StorageMart Portfolio - 10700 West 159th Street | $335,189 | 10700 W. 159th St | Orland Park | IL | ||||||||||||||||||||||||
BANA | 11.42 | US StorageMart Portfolio - 2403 Rangeline | $335,189 | 2403 Rangeline St | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.43 | US StorageMart Portfolio - 6714 S Cottage Grove Avenue | $314,859 | 6714 S Cottage Grove Ave and 6932 S South Chicago Ave | Chicago | IL | ||||||||||||||||||||||||
BANA | 11.44 | US StorageMart Portfolio - 2277 Walters Road | $312,774 | 2277 Walters Rd | Fairfield | CA | ||||||||||||||||||||||||
BANA | 11.45 | US StorageMart Portfolio - 1575 Thousand Oaks Drive | $312,774 | 1575 Thousand Oaks Dr | San Antonio | TX | ||||||||||||||||||||||||
BANA | 11.46 | US StorageMart Portfolio - 7460 Frontage Road | $312,774 | 7460 Frontage Rd | Merriam | KS | ||||||||||||||||||||||||
BANA | 11.47 | US StorageMart Portfolio - 6401 Third St Stock Is | $304,954 | 6401 Third St | Key West | FL | ||||||||||||||||||||||||
BANA | 11.48 | US StorageMart Portfolio - 2816 Eaton Road | $297,135 | 2816 Eaton Road | Kansas City | KS | ||||||||||||||||||||||||
BANA | 11.49 | US StorageMart Portfolio - 3985 Atlanta Highway | $268,985 | 3985 Atlanta Hwy | Athens | GA | ||||||||||||||||||||||||
BANA | 11.50 | US StorageMart Portfolio - 11510 North Main | $266,900 | 11510 N Main St | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.51 | US StorageMart Portfolio - 750 Winchester Road | $259,081 | 750 Winchester Rd | Lexington | KY | ||||||||||||||||||||||||
BANA | 11.52 | US StorageMart Portfolio - 3401 Broadway Street | $256,474 | 3401 Broadway Blvd | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.53 | US StorageMart Portfolio - 1720 Grand Boulevard | $237,708 | 1720 Grand Blvd | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.54 | US StorageMart Portfolio - 1310 South Enterprise | $233,538 | 1310 South Enterprise St | Olathe | KS | ||||||||||||||||||||||||
BANA | 11.55 | US StorageMart Portfolio - 2420 St Mary’s Boulevard | $218,942 | 2420 St Mary’s Blvd | Jefferson City | MO | ||||||||||||||||||||||||
BANA | 11.56 | US StorageMart Portfolio - 3500 I-70 Dr SE | $214,771 | 3500 I-70 Dr SE | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.57 | US StorageMart Portfolio - 195 Southwest Boulevard | $213,729 | 195 Southwest Blvd | Kansas City | KS | ||||||||||||||||||||||||
BANA | 11.58 | US StorageMart Portfolio - 8900 NW Prairie View Road | $211,122 | 8900 NW Prairie View Rd | Kansas City | MO | ||||||||||||||||||||||||
BANA | 11.59 | US StorageMart Portfolio - 1601 Twilight Trail | $207,994 | 1601 Twilight Trail | Frankfort | KY | ||||||||||||||||||||||||
BANA | 11.60 | US StorageMart Portfolio - 1515 Church Street | $193,398 | 1515 Church St | Lake Charles | LA | ||||||||||||||||||||||||
BANA | 11.61 | US StorageMart Portfolio - 1891 N Columbia Street | $177,238 | 1891 N Columbia St | Milledgeville | GA | ||||||||||||||||||||||||
BANA | 11.62 | US StorageMart Portfolio - 1200 US #1 | $142,833 | 1200 US #1 | Key West | FL | ||||||||||||||||||||||||
BANA | 11.63 | US StorageMart Portfolio - 251 Collins Industrial Boulevard | $134,493 | 251 Collins Industrial Blvd | Athens | GA | ||||||||||||||||||||||||
BANA | 11.64 | US StorageMart Portfolio - 2310 Paris Road | $126,673 | 2310 Paris Rd | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.65 | US StorageMart Portfolio - 1820 W Business Loop 70 | $67,246 | 1820 W Business Loop 70 | Columbia | MO | ||||||||||||||||||||||||
BANA | 11.66 | US StorageMart Portfolio - 1723 E Florida | $66,204 | 1723 E Florida | Springfield | MO | ||||||||||||||||||||||||
BANA | 13 | Spruce Ridge Apartments | $22,000,000 | 3770 Blue Court | Columbus | IN | 4/27/2015 | 5/1/2025 | 4.084% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 14 | Chinatown Plaza | $22,000,000 | 4205-4255 Spring Mountain Road | Las Vegas | NV | 5/15/2015 | 6/1/2025 | 4.284% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 16 | Aviare Place Apartments | $20,850,000 | 2600 West Loop 250 North | Midland | TX | 10/31/2014 | 11/1/2024 | 4.260% | 120 | 113 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 17 | 599 Broadway | $20,500,000 | 599 Broadway | New York | NY | 4/1/2015 | 4/1/2025 | 3.815% | 120 | 118 | 0 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 18 | 6101 East Oltorf | $20,475,000 | 6101 East Oltorf Street | Austin | TX | 5/15/2015 | 6/1/2025 | 4.206% | 120 | 120 | 240 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 20 | The Park at FLW | $17,800,000 | 14350-14362 North Frank Lloyd Wright Boulevard | Scottsdale | AZ | 5/8/2015 | 6/1/2025 | 4.286% | 120 | 120 | 360 | No | 0.03500% | 0.00000% | |||||||||||||||
BANA | 23 | Residence Inn - North Dartmouth, MA | $13,160,000 | 181 Faunce Corner Road | North Dartmouth | MA | 4/24/2015 | 5/1/2025 | 4.027% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 24 | Hawthorne House Apartments | $12,300,000 | 2811 West Loop 250 North | Midland | TX | 10/31/2014 | 11/1/2024 | 4.260% | 120 | 113 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 26 | Snowcreek Crossing | $11,200,000 | 1600 Snow Creek Drive | Park City | UT | 5/5/2015 | 6/1/2025 | 3.918% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 27 | Tech Distribution | $11,000,000 | 2012 TW Alexander Drive | Durham | NC | 3/13/2015 | 4/1/2025 | 4.370% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 35 | Courtyard - Missoula, MT | $8,439,409 | 4559 North Reserve Street | Missoula | MT | 4/21/2015 | 5/1/2020 | 4.273% | 60 | 59 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 37 | TownePlace Suites - Orlando East, FL | $8,239,406 | 11801 High Tech Ave | Orlando | FL | 5/1/2015 | 5/1/2025 | 4.162% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 40 | Bridgeport Landing | $7,115,667 | 2700 Bridgeport Way West | University Place | WA | 5/1/2015 | 5/1/2025 | 4.070% | 120 | 119 | 360 | No | 0.03000% | 0.00000% | |||||||||||||||
BANA | 41 | Holiday Inn Express - South Lake Tahoe, CA | $7,000,000 | 3961 Lake Tahoe Boulevard | South Lake Tahoe | CA | 3/25/2015 | 4/1/2025 | 4.360% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 42 | Lake Pointe Market | $7,000,000 | 6702 Dalrock Rd | Rowlett | TX | 3/25/2015 | 4/1/2025 | 3.950% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 43 | Sunrise Oaks MHC | $6,600,000 | 1200 N. Lamb Blvd | Las Vegas | NV | 3/4/2015 | 4/1/2025 | 3.980% | 120 | 118 | 0 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 48 | Magnolia MHC | $5,575,000 | 4325 Magnolia Oaks Road | Pearland | TX | 5/6/2015 | 6/1/2025 | 4.379% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 49 | CVS - Macomb, MI | $5,550,000 | 50980 North Avenue | Macomb | MI | 5/12/2015 | 6/1/2025 | 4.396% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 55 | Cameron Court Apartments | $5,000,000 | 1001 North Indiana Avenue | Lubbock | TX | 4/9/2015 | 5/1/2025 | 4.050% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 56 | Putnam Self Storage | $4,850,000 | 8 Great Pasture Road | Danbury | CT | 3/5/2015 | 4/1/2025 | 4.418% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 57 | Best Mini Storage & Stor-In Mini Storage | $4,800,000 | 7321 44th Avenue NE | Marysville | WA | 3/27/2015 | 4/1/2025 | 4.400% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 58 | CVS - Covington, LA | $4,687,500 | 2101 Collins Boulevard | Covington | LA | 4/14/2015 | 5/1/2025 | 4.090% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 59 | Mid-Towne Mobile Terrace MHC | $4,670,000 | 1117 Baldwin St | Salinas | CA | 4/14/2015 | 5/1/2025 | 4.103% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 60 | Delhi Manor MHC | $4,620,000 | 4075 East Holt Road | Holt | MI | 3/31/2015 | 4/1/2020 | 4.520% | 60 | 58 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 62 | Linden Lane Apartments | $4,500,000 | 2930 Linden Lane | Carmichael | CA | 5/20/2015 | 6/1/2025 | 4.680% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 63 | Value Place - Asheville, NC | $4,402,139 | 40 Monte Vista Road | Asheville | NC | 4/1/2015 | 5/1/2025 | 4.168% | 120 | 119 | 300 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 64 | StorQuest Tempe Warner | $4,150,000 | 1835 East Warner Road | Tempe | AZ | 4/29/2015 | 5/1/2025 | 4.331% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 67 | West Phoenix Storage | $3,500,000 | 4860 N 83rd Ave | Phoenix | AZ | 4/7/2015 | 5/1/2025 | 4.141% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 68 | CVS - Northport, AL | $3,412,500 | 4280 Mitt Lary Road | Northport | AL | 4/14/2015 | 5/1/2025 | 4.090% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 69 | Cypress Run Plaza | $3,150,000 | 13400 Benns Church Boulevard | Smithfield | VA | 5/18/2015 | 6/1/2025 | 4.406% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 71 | Oyster Creek | $2,775,000 | 145 Oyster Creek Dr | Lake Jackson | TX | 4/2/2015 | 5/1/2025 | 4.250% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 72 | Lakeview & Wildwood MHC Portfolio | $2,689,257 | 3/3/2015 | 4/1/2025 | 4.525% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | ||||||||||||||||||
BANA | 72.01 | Lakeview & Wildwood MHC Portfolio - Wildwood MHC | $1,720,685 | 13122 C F Hawn Freeway | Dallas | TX | ||||||||||||||||||||||||
BANA | 72.02 | Lakeview & Wildwood MHC Portfolio - Lakeview MHC | $968,571 | 6130 Arlington Webb Road | Arlington | TX | ||||||||||||||||||||||||
BANA | 74 | Auburn Hills MHC | $2,100,000 | 9001 Bill Reed Road | Ooltewah | TN | 5/1/2015 | 6/1/2025 | 4.350% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
BANA | 75 | Hickory Hill Self Storage | $1,805,000 | 3545 Hickory Hill Rd | Memphis | TN | 3/9/2015 | 4/1/2025 | 4.398% | 120 | 118 | 360 | No | 0.00500% | 0.00000% |
Schedule I-2 |
SCHEDULE II
MSMCH Loan Schedule
(See attached)
Schedule II-1 |
MSBAM 2015-C23 | ||||||||||||||||||||||||||||||
Mortgage Loan Schedule | ||||||||||||||||||||||||||||||
MSMCH | ||||||||||||||||||||||||||||||
Mortgage Loan Seller |
Loan ID | Property Name | Cut-off
Date Balance |
Address | City | State | Note Date | Maturity Date |
Mortgage Rate |
Original
Term to Maturity (mos.) |
Remaining
Term to Maturity (mos.) |
Original
Amortization Term (mos.) |
ARD
(Yes/No) |
Primary
Servicing Fee Rate |
Pari
Passu Loan Primary Servicing Fee Rate | |||||||||||||||
MSMCH | 1 | TKG 3 Retail Portfolio | $79,708,750 | 5/15/2015 | 6/1/2025 | 4.240% | 120 | 120 | 0 | No | 0.00500% | 0.00000% | ||||||||||||||||||
MSMCH | 1.01 | TKG 3 Retail Portfolio - Riverside Center | $24,306,825 | 710 Horatio Street | Utica | NY | ||||||||||||||||||||||||
MSMCH | 1.02 | TKG 3 Retail Portfolio - Norwichtown Commons | $15,150,321 | 42 Town Street | Norwich | CT | ||||||||||||||||||||||||
MSMCH | 1.03 | TKG 3 Retail Portfolio - Coral North | $13,175,928 | 2515-2530 Corridor Way | Coralville | IA | ||||||||||||||||||||||||
MSMCH | 1.04 | TKG 3 Retail Portfolio - Grant Creek Town Center | $12,327,977 | 3055-3275 North Reserve Street | Missoula | MT | ||||||||||||||||||||||||
MSMCH | 1.05 | TKG 3 Retail Portfolio - Manhattan Marketplace | $10,106,536 | 401 3rd Place | Manhattan | KS | ||||||||||||||||||||||||
MSMCH | 1.06 | TKG 3 Retail Portfolio - Riverside Crossing | $4,641,163 | 2502 and 2504 Highway 6 & 50 | Grand Junction | CO | ||||||||||||||||||||||||
MSMCH | 2 | 32 Old Slip Fee | $66,000,000 | 32 Old Slip | New York | NY | 4/14/2015 | 5/5/2025 | 3.708% | 120 | 119 | 0 | Yes | 0.00500% | 0.00000% | |||||||||||||||
MSMCH | 4 | Three Corners Multifamily Portfolio | $58,000,000 | 4/28/2015 | 5/1/2020 | 3.885% | 60 | 59 | 360 | No | 0.00500% | 0.00000% | ||||||||||||||||||
MSMCH | 4.01 | Three Corners Multifamily Portfolio - Spring Shadows | $19,950,000 | 10105 Kempwood Drive | Houston | TX | ||||||||||||||||||||||||
MSMCH | 4.02 | Three Corners Multifamily Portfolio - Kempwood Place | $19,900,000 | 10010 Kempwood Drive | Houston | TX | ||||||||||||||||||||||||
MSMCH | 4.03 | Three Corners Multifamily Portfolio - Kempwood Hollow | $18,150,000 | 9999 Kempwood Drive | Houston | TX | ||||||||||||||||||||||||
MSMCH | 6 | Millennium and Bloom Apartments Portfolio | $42,000,000 | 5/4/2015 | 6/1/2025 | 4.120% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | ||||||||||||||||||
MSMCH | 6.01 | Millennium and Bloom Apartments Portfolio - Millennium Apartments | $23,800,000 | 1200 Rolling Ridge Way | Bloomington | IN | ||||||||||||||||||||||||
MSMCH | 6.02 | Millennium and Bloom Apartments Portfolio - Bloom Apartments | $18,200,000 | 1051 South Adams Street | Bloomington | IN | ||||||||||||||||||||||||
MSMCH | 7 | Hilton Garden Inn W 54th Street | $40,000,000 | 237 West 54th Street | New York | NY | 2/6/2015 | 3/1/2025 | 4.013% | 120 | 117 | 0 | No | 0.00000% | 0.00500% | |||||||||||||||
MSMCH | 54 | Blanco Pointe | $5,043,750 | 19178 & 19186 Blanco Road | San Antonio | TX | 5/11/2015 | 6/1/2025 | 4.265% | 120 | 120 | 360 | No | 0.00500% | 0.00000% |
Schedule II-2 |
SCHEDULE III
CIBC Loan Schedule
(See attached)
Schedule III-1 |
MSBAM 2015-C23 | ||||||||||||||||||||||||||||||
Mortgage Loan Schedule | ||||||||||||||||||||||||||||||
CIBC | ||||||||||||||||||||||||||||||
Mortgage Loan Seller |
Loan ID | Property Name | Cut-off
Date Balance |
Address | City | State | Note Date | Maturity Date |
Mortgage Rate |
Original
Term to Maturity (mos.) |
Remaining
Term to Maturity (mos.) |
Original
Amortization Term (mos.) |
ARD
(Yes/No) |
Primary
Servicing Fee Rate |
Pari
Passu Loan Primary Servicing Fee Rate | |||||||||||||||
CIBC | 8 | Green Mountain Plaza | $35,040,000 | 315 South Main Street | Rutland | VT | 5/18/2015 | 6/1/2025 | 4.200% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 9 | Town Center at Celebration | $34,654,056 | 610 Sycamore Street | Celebration | FL | 4/6/2015 | 5/1/2025 | 4.020% | 120 | 119 | 360 | No | 0.04000% | 0.00000% | |||||||||||||||
CIBC | 12 | The Quarters | $22,500,000 | 501 Stewart Street | Lafayette | LA | 5/13/2015 | 6/1/2025 | 4.280% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 15 | Sawgrass Landing Shopping Center | $20,900,000 | 13715-13999 West Sunrise Blvd. | Sunrise | FL | 4/7/2015 | 5/1/2025 | 4.170% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 19 | The Grand Retail Condo | $20,250,000 | 1717 North Bayshore Drive | Miami | FL | 4/3/2015 | 5/1/2025 | 3.990% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 22 | Sunshine Self Storage | $13,800,000 | 11800 Miramar Parkway | Miramar | FL | 4/20/2015 | 5/1/2020 | 4.550% | 60 | 59 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 29 | The Hamptons Apartments | $9,900,000 | 5781 Lake Edward Drive | Virginia Beach | VA | 3/26/2015 | 4/1/2025 | 4.350% | 120 | 118 | 360 | No | 0.07000% | 0.00000% | |||||||||||||||
CIBC | 31 | The Mayfair Apartments | $9,100,000 | 5820 Newtown Arch | Virginia Beach | VA | 3/26/2015 | 4/1/2025 | 4.350% | 120 | 118 | 360 | No | 0.07000% | 0.00000% | |||||||||||||||
CIBC | 32 | Kings Point Shopping Center | $8,650,000 | 6600 West Atlantic Avenue | Delray Beach | FL | 5/14/2015 | 6/1/2025 | 4.210% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 33 | Parkview Townhomes | $8,625,000 | 1329 North Williamsburg Street | Wichita | KS | 5/21/2015 | 6/1/2025 | 4.520% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 34 | Paper Company Apartments | $8,550,000 | 203-205 Hull Street | Richmond | VA | 5/15/2015 | 6/1/2025 | 4.290% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 36 | Hyatt Place Jacksonville Airport | $8,300,000 | 14565 Duval Road | Jacksonville | FL | 5/20/2015 | 6/1/2020 | 4.650% | 60 | 60 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 38 | Greatwood Shopping Center | $8,100,000 | 19875 Southwest Freeway | Sugar Land | TX | 4/9/2015 | 5/1/2025 | 4.110% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 44 | Lindham Court Apartments | $6,200,000 | 1101 Lindham Court | Mechanicsburg | PA | 5/5/2015 | 6/1/2025 | 4.330% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 45 | Eastgate Shopping Center | $6,125,000 | 2211-2329 East Hillsborough Avenue | Tampa | FL | 4/27/2015 | 5/1/2025 | 4.020% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 46 | Franklin Pointe Medical Center | $6,080,000 | 26400 West Twelve Mile Road | Southfield | MI | 3/31/2015 | 4/1/2025 | 3.750% | 120 | 118 | 360 | No | 0.07000% | 0.00000% | |||||||||||||||
CIBC | 47 | 103 Market Place Drive | $5,983,670 | 103 Marketplace Drive | Hampton | VA | 3/26/2015 | 4/1/2025 | 4.100% | 120 | 118 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 66 | CVS Galveston | $3,750,000 | 2326 61st Street | Galveston | TX | 4/23/2015 | 5/1/2025 | 4.230% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
CIBC | 70 | Lindbergh Plaza | $3,037,500 | 7620 Lindbergh Boulevard | Philadelphia | PA | 5/15/2015 | 6/1/2025 | 4.260% | 120 | 120 | 360 | No | 0.00500% | 0.00000% |
Schedule III-2 |
SCHEDULE IV
SMF III Loan Schedule
(See attached)
Schedule IV-1 |
MSBAM 2015-C23 | ||||||||||||||||||||||||||||||
Mortgage Loan Schedule | ||||||||||||||||||||||||||||||
SMF III | ||||||||||||||||||||||||||||||
Mortgage Loan Seller |
Loan ID | Property Name | Cut-off
Date Balance |
Address | City | State | Note Date | Maturity Date |
Mortgage Rate |
Original
Term to Maturity (mos.) |
Remaining
Term to Maturity (mos.) |
Original
Amortization Term (mos.) |
ARD
(Yes/No) |
Primary
Servicing Fee Rate |
Pari
Passu Loan Primary Servicing Fee Rate | |||||||||||||||
SMF III | 21 | Summerhill Plaza | $13,982,557 | 7501-7581 West Lake Mead Boulevard | Las Vegas | NV | 5/1/2015 | 5/6/2025 | 4.300% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 25 | Chicopee Village Townhomes | $11,700,000 | 68 Eastern Drive | Chicopee | MA | 5/20/2015 | 6/6/2025 | 4.570% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 28 | Pueblo Manor | $10,075,000 | 834 South Meridian Road | Apache Junction | AZ | 4/7/2015 | 5/6/2025 | 4.100% | 120 | 119 | 0 | No | 0.05500% | 0.00000% | |||||||||||||||
SMF III | 30 | YoHo Lofts and Nepperhan Plaza | $9,883,529 | 540, 578 & 523-533 Nepperhan Avenue | Yonkers | NY | 5/1/2015 | 5/6/2025 | 4.567% | 120 | 119 | 300 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 39 | Orange County Retail | $7,740,458 | 4/30/2015 | 5/6/2025 | 4.354% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | ||||||||||||||||||
SMF III | 39.01 | Orange County Retail - Beach Chapman | $3,289,077 | 11951 Beach Boulevard | Stanton | CA | ||||||||||||||||||||||||
SMF III | 39.02 | Orange County Retail - Katella Square | $2,794,479 | 7129-7143, 7147-7159 Katella Avenue | Stanton | CA | ||||||||||||||||||||||||
SMF III | 39.03 | Orange County Retail - Paramount Center | $1,656,903 | 8505 Rosecrans Avenue | Paramount | CA | ||||||||||||||||||||||||
SMF III | 50 | DaVita Coral Gables | $5,250,000 | 3280 Ponce de Leon Boulevard | Coral Gables | FL | 5/11/2015 | 6/6/2025 | 4.339% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 51 | La Fiesta | $5,250,000 | 7-28 Rancho Square | Vallejo | CA | 5/12/2015 | 6/6/2025 | 4.435% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 52 | Country Corners Shopping Center | $5,200,000 | 4046 East Grand River Avenue | Howell | MI | 5/12/2015 | 6/6/2025 | 4.753% | 120 | 120 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 53 | 1131 SW Winding Road | $5,142,031 | 1311 Southwest Winding Road | Topeka | KS | 4/24/2015 | 5/6/2025 | 4.204% | 120 | 119 | 324 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 61 | Holiday Inn Express & Suites Plainview | $4,517,655 | 4213 West 13th Street | Plainview | TX | 5/4/2015 | 5/6/2025 | 4.707% | 120 | 119 | 300 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 65 | Holiday Inn Express Royse City | $3,985,171 | 1001 Pullen Street | Royse City | TX | 4/15/2015 | 5/6/2025 | 4.431% | 120 | 119 | 360 | No | 0.00500% | 0.00000% | |||||||||||||||
SMF III | 73 | Walgreens - Sikeston | $2,575,000 | 299 North Main Street | Sikeston | MO | 5/13/2015 | 6/6/2025 | 4.552% | 120 | 120 | 360 | No | 0.00500% | 0.00000% |
Schedule IV-2 |
SCHEDULE V
List
of Mortgage Loans Secured by the Interest of the Related Mortgagor Under a Ground
Lease, Space Lease or Air Rights Lease (Section 8.3(i))
Fairfax Corner
Fairfield Inn Chelsea
US StorageMart Portfolio - 3401 Broadway Street
Paper Company Apartments
StorQuest Tempe Warner
Schedule V-1 |
SCHEDULE VI
List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
None.
Schedule VI-1 |
SCHEDULE VII
Certain
Escrow Accounts for Which a Required Repair is Outstanding Under
Section 5.1(g)
Three Corners Multifamily Portfolio
Aviare Place Apartments
Hawthorne House Apartments
Chicopee Village Townhomes
The Hamptons Apartments
Kings Point Shopping Center
Courtyard - Missoula, MT
Hyatt Place Jacksonville Airport
TownePlace Suites - Orlando East, FL
Holiday Inn Express - South Lake Tahoe, CA
Country Corners Shopping Center
Holiday Inn Express & Suites Plainview
Linden Lane Apartments
Schedule VII-1 |
SCHEDULE VIII
Mortgage Loans as to Which a Lender Register is to be Maintained
None.
Schedule VIII-1 |
SCHEDULE IX
Mortgage Loans Secured by Mortgaged Properties
Covered by an Environmental Insurance Policy
La Fiesta
Schedule IX-1 |
SCHEDULE
X
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum, the criteria identified below as “Relevant Servicing Criteria”.
Relevant Servicing Criteria | Applicable
Party(ies) | ||
Reference |
Criteria |
||
General Servicing Considerations |
|||
1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
|
Certificate Administrator Master Servicer Special Servicer | |
1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. | Certificate Administrator Master Servicer Special Servicer Custodian (if such entity is not also the Certificate Administrator)
| |
1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained. | N/A | |
1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | Certificate Administrator Trustee Master Servicer Special Servicer Custodian (if such entity is not also the Certificate Administrator)
| |
1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.1 | Certificate Administrator Master Servicer Special Servicer
| |
Cash Collection and Administration |
|||
1122(d)(2)(i) | Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer
|
1 The servicing criteria in Item 1122(d)(1)(v) of Regulation AB shall be applicable on and after November 23, 2015.
Schedule X-1 |
Relevant Servicing Criteria | Applicable
Party(ies) | |
Reference |
Criteria |
1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | Certificate Administrator |
1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | Master Servicer Special Servicer Trustee
|
1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of over collateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | Certificate Administrator Master Servicer Special Servicer
|
1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. | Certificate Administrator Master Servicer Special Servicer
|
1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | Master Servicer Special Servicer Certificate Administrator
|
1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. |
Certificate Administrator Master Servicer Special Servicer |
Investor Remittances and Reporting |
||
1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. | Certificate Administrator Trust Advisor (excluding clauses (C) and (D) in the case of the Trust Advisor)
|
1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | Certificate Administrator |
1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Certificate Administrator’s investor records, or such other number of days specified in the transaction agreements. | Certificate Administrator |
1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled | Certificate |
Schedule X-2 |
Relevant Servicing Criteria | Applicable
Party(ies) | |
Reference |
Criteria |
|
checks, or other form of payment, or custodial bank statements. | Administrator | |
Pool Asset Administration |
||
1122(d)(4)(i) | Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents. | Custodian Master Servicer Special Servicer
|
1122(d)(4)(ii) | Mortgage loan and related documents are safeguarded as required by the transaction agreements. | Custodian |
1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | Certificate
Master Servicer Special Servicer
|
1122(d)(4)(iv) | Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents. | Master Servicer Special Servicer |
1122(d)(4)(v) | The Master Servicer’s records regarding the mortgage loans agree with the Master Servicer’s records with respect to an obligor’s unpaid principal balance. | Master Servicer |
1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | Master Servicer Special Servicer |
1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | Special Servicer Trust Advisor
|
1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | Master Servicer Special Servicer
|
1122(d)(4)(ix) | Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents. | Master Servicer |
1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements. | Master Servicer
|
1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, | Master Servicer |
Schedule X-3 |
Relevant Servicing Criteria | Applicable Party(ies) | |
Reference |
Criteria |
|
or such other number of days specified in the transaction agreements. | ||
1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | Master Servicer |
1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | Master Servicer |
1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | Master Servicer |
1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | N/A |
At all times that the Master Servicer and Special Servicer are the same entity, the Master Servicer and the Special Servicer may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.
Schedule X-4 |
SCHEDULE XI
Additional Form 10-D Disclosure
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.4 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator (or the Master Servicer, to the extent specified in Section 13.4 of the Pooling and Servicing Agreement) any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-D | Party Responsible | ||
Item 1: Distribution and Pool Performance Information: ● Item 1121 of Regulation AB (other than information contained in the Distribution Date Statement)
|
● Master Servicer (only with respect to Item 1121(a)(12) of Regulation AB as to non-Specially Serviced Mortgage Loans) ● Certificate Administrator ● Depositor
|
||
Item 2: Legal Proceedings: ● Item 1117 of Regulation AB (to the extent material to Certificateholders)
|
● Master Servicer (as to itself) ● Special Servicer (as to itself) ● Certificate Administrator (as to itself) ● Trustee (as to itself) ● Custodian (as to itself) (if such entity is not also the Certificate Administrator) ● Depositor (as to itself) ● Any other Reporting Servicer (as to itself) ● Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust ● Each Seller as sponsor (as defined in Regulation AB) ● Originators under Item 1110 of Regulation AB ● Party under Item 1100(d)(1) of Regulation |
Schedule XI-1 |
AB | |||
Item 3: Sale of Securities and Use of Proceeds
|
● Depositor | ||
Item 4: Defaults Upon Senior Securities
|
● Certificate Administrator ● Trustee |
||
Item 5: Submission of Matters to a Vote of Security Holders
|
● Certificate Administrator ● Trustee ● Depositor |
||
Item 6: Significant Obligors of Pool Assets | ● Depositor ● Sponsor ● Applicable Seller ● Master Servicer |
||
Item 7: Significant Enhancement Provider Information
|
● Depositor | ||
Item 8: Other Information | ● Certificate Administrator (including the balances of the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account and the TA Unused Fees Account as of the related Distribution Date and the preceding Distribution Date) ● Master Servicer (with respect to the balances of each REO Account (to the extent the related information has been received from the Special Servicer within the time period specified in Section 13.4 of the Pooling and Servicing Agreement) and the Collection Account as of the related Distribution Date and the preceding Distribution Date) ● Special Servicer (with respect to the balance of each REO Account as of the related Distribution Date and the preceding Distribution Date) ● Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders) |
||
Item 9: Exhibits | ● Certificate Administrator ● Depositor ● Master Servicer ● Special Servicer |
Schedule XI-2 |
SCHEDULE XII
Additional Form 10-K Disclosure
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.5 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or a Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 10-K | Party Responsible | ||
Item 1B: Unresolved Staff Comments
|
● Depositor | ||
Item 9B: Other Information | ● Certificate Administrator ● Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders) |
||
Item 15: Exhibits, Financial Statement Schedules | ● Certificate Administrator ● Depositor |
||
Additional Item:
Disclosure per Item 1117 of Regulation AB (to the extent material to Certificateholders) |
● Master Servicer (as to itself) ● Special Servicer (as to itself) ● Certificate Administrator (as to itself) ● Trustee (as to itself) ● Custodian (as to itself) (if such entity is not also the Certificate Administrator) ● Depositor (as to itself) ● Any other Reporting Servicer (as to itself) ● Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust ● Each Seller as sponsor (as defined in |
Schedule XII-1 |
Regulation AB) ● Originators under Item 1110 of Regulation AB ● Party under Item 1100(d)(1) of Regulation AB |
|||
Additional Item: Disclosure per Item 1119 of Regulation AB |
● Master Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Special Servicer, significant obligor contemplated by Item 1112, the Trust Advisor, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) ● Special Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Master Servicer, significant obligor contemplated by Item 1112, the Trust Advisor, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) ● Certificate Administrator (as to itself) (to the extent material to Certificateholders) ● Trustee (as to itself) (to the extent material to Certificateholders) ● Custodian (as to itself, if such entity is not also the Certificate Administrator) (to the extent material to Certificateholders) ● Depositor (as to itself and the Trust) ● Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Trust Advisor/Special Servicer as to the Trust ● Each Seller as sponsors (as defined in Regulation AB) ● Originators under Item 1110 of Regulation AB (to be provided by the Depositor) |
Schedule XII-2 |
● Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor) | |||
Additional Item: Disclosure per Item 1112(b) of Regulation AB |
● Depositor ● Each Applicable Seller as sponsor (as defined in Regulation AB) ● Master Servicer |
||
Additional Item: Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB |
● Depositor |
Schedule XII-3 |
SCHEDULE XIII
Form 8-K Disclosure Information
The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.7 of the Pooling and Servicing Agreement to report to the Depositor and the Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus Supplement (other than information with respect to itself that is set forth in or omitted from the Prospectus Supplement), in the absence of specific notice to the contrary from the Depositor or a Seller. Each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the Prospectus Supplement. For this Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Master Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Prospectus Supplement.
Item on Form 8-K | Party Responsible | ||
Item 1.01- Entry into a Material Definitive Agreement
Disclosure is required regarding entry into or amendment of any definitive agreement that is material to the securitization, even if depositor is not a party.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive agreements that are fully disclosed in the prospectus
|
● Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust) | ||
Item 1.02- Termination of a Material Definitive Agreement
Disclosure is required regarding termination of any definitive agreement that is material to the securitization (other than expiration in accordance with its terms), even if depositor is not a party.
Examples: servicing agreement, custodial |
● Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust) |
Schedule XIII-1 |
agreement. | |||
Item 1.03- Bankruptcy or Receivership | ● Depositor | ||
Item 2.04- Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
Includes an early amortization, performance trigger or other event, including event of default, that would materially alter the payment priority/distribution of cash flows/amortization schedule.
Disclosure will be made of events other than waterfall triggers which are disclosed in the monthly statements to the certificateholders.
|
● Depositor ● Certificate Administrator (with respect to an Obligation under an Off-Balance Sheet Arrangement, if any)
|
||
Item 3.03- Material Modification to Rights of Security Holders
Disclosure is required of any material modification to documents defining the rights of Certificateholders, including the Pooling and Servicing Agreement.
|
● Certificate Administrator | ||
Item 5.03- Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Disclosure is required of any amendment “to the governing documents of the issuing entity”.
|
● Depositor | ||
Item 5.07 - Submission of Matters to a Vote of Security Holders | ● Certificate Administrator ● Trustee ● Depositor
|
||
Item 6.01- ABS Informational and Computational Material | ● Depositor | ||
Item 6.02- Change of Servicer or Trustee
Requires disclosure of any removal, replacement, substitution or addition of any master servicer, affiliated servicer, other servicer servicing 10% or more of pool assets at time of report, other material servicers or trustee. |
● Master Servicer (as to itself or a servicer retained by it) ● Special Servicer (as to itself or a servicer retained by it) ● Certificate Administrator (as to itself as Certificate Administrator) ● Custodian (as to itself as Custodian) (if such entity is not also the Certificate
|
Schedule XIII-2 |
Administrator) ● Trustee (as to Trustee) ● Depositor |
||||
Reg AB disclosure about any new servicer or master servicer is required. | ● Master Servicer or Special Servicer, as applicable (in each case, as to itself, or a sub-servicer retained by it) | |||
Reg AB disclosure about any new Trustee is required. | ● Trustee | |||
Reg AB disclosure about any new Certificate Administrator is required. | ● Certificate Administrator | |||
Reg AB disclosure about any new Custodian is required. | ● Custodian (if such entity is not also the Certificate Administrator) | |||
Item 6.03- Change in Credit Enhancement or Other External Support | ● Depositor ● Certificate Administrator |
|||
Item 6.04- Failure to Make a Required Distribution | ● Certificate Administrator | |||
Item 6.05- Securities Act Updating Disclosure
If any material pool characteristic differs by 5% or more at the time of issuance of the securities from the description in the final prospectus, provide updated Reg AB disclosure about the actual asset pool.
If there are any new servicers or originators required to be disclosed under Regulation AB as a result of the foregoing, provide the information called for in Items 1108 and 1110 respectively.
|
● Depositor | |||
Item 7.01- Regulation FD Disclosure | ● Depositor | |||
Item 8.01 – Other Events
Any event, with respect to which information is not otherwise called for in Form 8-K, that the registrant deems of importance to certificateholders.
|
● Depositor ● Master Servicer, Special Servicer and each Applicable Seller as sponsor (as defined in Regulation AB)
|
|||
Item 9.01 - Financial Statements and Exhibits | ● Responsible party for reporting/disclosing the financial statement or exhibit |
Schedule XIII-3 |
SCHEDULE XIV
Additional Disclosure Notification
INSTRUCTIONS:
FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO [cts.sec.notifications@wellsfargo.com], stephen.holmes@morganstanley.com AND VIA FIRST CLASS MAIL TO MORGAN STANLEY CAPITAL I INC.
FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT MAIL TO THE ADDRESSES IMMEDIATELY BELOW
Wells Fargo Bank, National Association, as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: [Corporate Trust Services—]MSBAM 2015-C23[—SEC REPORT PROCESSING]
Email: [cts.sec.notifications@wellsfargo.com]
Morgan Stanley Capital I Inc., as Depositor
1585 Broadway
New York, New York 10036
Attn: Stephen Holmes
Facsimile: (646) 435-2881
Email: stephen.holmes@morganstanley.com
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, dated as of [ ][ ], 2015, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ]. the undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
[With respect to Collection Account and REO Account balance information:
Account Name | Beginning
Balance as of MM/DD/YYYY |
Ending
Balance as of MM/DD/YYYY |
Collection Account | ||
REO Account |
Schedule XIV-1 |
]
List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone number: [ ]; email address: [ ].
[NAME OF PARTY], | ||
as [role] | ||
By: | ||
Name: | ||
Title: |
Schedule XIV-2 |
SCHEDULE XV
Seller Sub-Servicers
Berkadia Commercial Mortgage LLC
NRC Group, Inc.
Sunrise Mortgage and Investment Company
Schedule XV-1 |
SCHEDULE XVI
Letters
of Credit
None.
Schedule XVI-1 |
SCHEDULE XVII
Class A-SB Planned Principal Balance
Month | Balance ($) | Month | Balance ($) | Month | Balance($) | |||||
0 | 67,600,000.00 | 40 | 67,600,000.00 | 80 | 43,628,379.83 | |||||
1 | 67,600,000.00 | 41 | 67,600,000.00 | 81 | 42,192,908.50 | |||||
2 | 67,600,000.00 | 42 | 67,600,000.00 | 82 | 40,983,810.43 | |||||
3 | 67,600,000.00 | 43 | 67,600,000.00 | 83 | 39,693,416.76 | |||||
4 | 67,600,000.00 | 44 | 67,600,000.00 | 84 | 38,475,211.85 | |||||
5 | 67,600,000.00 | 45 | 67,600,000.00 | 85 | 37,175,972.95 | |||||
6 | 67,600,000.00 | 46 | 67,600,000.00 | 86 | 35,948,595.69 | |||||
7 | 67,600,000.00 | 47 | 67,600,000.00 | 87 | 34,716,746.41 | |||||
8 | 67,600,000.00 | 48 | 67,600,000.00 | 88 | 33,404,255.09 | |||||
9 | 67,600,000.00 | 49 | 67,600,000.00 | 89 | 32,163,135.29 | |||||
10 | 67,600,000.00 | 50 | 67,600,000.00 | 90 | 30,841,639.75 | |||||
11 | 67,600,000.00 | 51 | 67,600,000.00 | 91 | 29,591,182.73 | |||||
12 | 67,600,000.00 | 52 | 67,600,000.00 | 92 | 28,336,169.45 | |||||
13 | 67,600,000.00 | 53 | 67,600,000.00 | 93 | 26,850,372.03 | |||||
14 | 67,600,000.00 | 54 | 67,600,000.00 | 94 | 25,585,372.11 | |||||
15 | 67,600,000.00 | 55 | 67,600,000.00 | 95 | 24,240,682.43 | |||||
16 | 67,600,000.00 | 56 | 67,600,000.00 | 96 | 22,966,173.47 | |||||
17 | 67,600,000.00 | 57 | 67,600,000.00 | 97 | 21,612,247.90 | |||||
18 | 67,600,000.00 | 58 | 67,600,000.00 | 98 | 20,328,161.48 | |||||
19 | 67,600,000.00 | 59 | 67,600,000.00 | 99 | 19,039,396.06 | |||||
20 | 67,600,000.00 | 60 | 67,570,221.43 | 100 | 17,671,623.56 | |||||
21 | 67,600,000.00 | 61 | 66,373,563.74 | 101 | 16,373,178.11 | |||||
22 | 67,600,000.00 | 62 | 65,252,561.42 | 102 | 14,996,003.64 | |||||
23 | 67,600,000.00 | 63 | 64,127,475.31 | 103 | 13,687,808.50 | |||||
24 | 67,600,000.00 | 64 | 62,918,680.24 | 104 | 12,374,846.36 | |||||
25 | 67,600,000.00 | 65 | 61,785,091.68 | 105 | 10,910,044.60 | |||||
26 | 67,600,000.00 | 66 | 60,568,038.42 | 106 | 9,586,960.44 | |||||
27 | 67,600,000.00 | 67 | 59,425,886.26 | 107 | 8,185,855.03 | |||||
28 | 67,600,000.00 | 68 | 58,279,573.12 | 108 | 6,852,843.89 | |||||
29 | 67,600,000.00 | 69 | 56,892,314.79 | 109 | 5,442,096.66 | |||||
30 | 67,600,000.00 | 70 | 55,736,771.35 | 110 | 4,099,087.11 | |||||
31 | 67,600,000.00 | 71 | 54,498,393.89 | 111 | 2,751,183.48 | |||||
32 | 67,600,000.00 | 72 | 53,334,128.90 | 112 | 1,325,971.56 | |||||
33 | 67,600,000.00 | 73 | 52,087,280.43 | 113 and | ||||||
34 | 67,600,000.00 | 74 | 50,914,231.15 | thereafter | 0.00 | |||||
35 | 67,600,000.00 | 75 | 49,736,908.13 | |||||||
36 | 67,600,000.00 | 76 | 48,477,376.74 | |||||||
37 | 67,600,000.00 | 77 | 47,291,175.49 | |||||||
38 | 67,600,000.00 | 78 | 46,023,020.91 | |||||||
39 | 67,600,000.00 | 79 | 44,827,877.56 |
Schedule XVII-1 |
SCHEDULE XVIII
Hospitality Properties Subject to Franchise, Management or Similar Agreement
Hilton Garden Inn W 54th Street
Fairfield Inn Chelsea
Residence Inn - North Dartmouth, MA
Courtyard - Missoula, MT
Hyatt Place Jacksonville Airport
TownePlace Suites - Orlando East, FL
Holiday Inn Express - South Lake Tahoe, CA
Holiday Inn Express & Suites Plainview
Value Place - Asheville, NC
Holiday Inn Express Royse City
Schedule XVIII-1 |
SCHEDULE XIX
Designated Escrow/Reserve Mortgage Loans
None.
Schedule XIX-1 |
E>!6AU/^&MBZ+_ -IC&9C(XB_-[CY>"Z3<$EVJQ&OPW!M# M5>;##+&V8>*JR[>.6%L@X5R=3Y=8+NW611#?L'NXQ%%H[#T_A[-.\:5 [7&3 M$MK"FI51V>-P6+QIJFY.O>JI(GB>\4QR1"W=>&'0PCNC]'H'@*ICVW "]O%Z MFO.J@.VX07 U=ZFO.JP_W/J7? _US,8(?ID5E0J8= -CJ05<:*/4#W59[# Q M]-2_&O3DC_G86(MJ7\>BJ;JW/M>)>?6,)8XC;IHJA1"23Q% -A3M].FE/V6& MTQMT)?QYOS4O8XK3&W0E^K\W2V2S>2R7$+R7DC@!6")56.- 3J=D:!5&OCV5 M9BPPQO:*UY^:MP;6&-[15+_HU8K_ (I>3UO_ %'^=)2%%C0FBA"*$(H0BA": M_1IJOXJ9/6WY/>:$"G%1\FA'FCY-"/-'R:$>:/DT(\T?)H1YJWY7Y=257^JK "_]D! end
Exhibit 4.4
AMENDED AND RESTATED AGREEMENT BETWEEN NOTEHOLDERS
Dated as of September 15, 2015
by and between
WELLS FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, for the benefit of the Holders of CSAIL 2015 C-3 Mortgage Trust
Commercial
Mortgage Pass-Through Certificates
(Note A-1 Holder and Note A-2 Holder)
UBS REAL ESTATE SECURITIES INC.
(Note A-3-1 Holder and Note A-3-2 Holder)
and
PRIMA MORTGAGE INVESTMENT TRUST, LLC
(Junior Noteholder)
CHARLES RIVER PLAZA NORTH
THIS AMENDED AND RESTATED AGREEMENT BETWEEN NOTEHOLDERS (with the exhibits and schedules hereto and all amendments and modifications hereof and supplements hereto, this “Agreement”), dated as of September 15, 2015 by and among WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee, for the benefit of the Holders of CSAIL 2015 C-3 Mortgage Trust Commercial Mortgage Pass-Through Certificates (in its capacity as owner of Note A-1, together with its successors and assigns in interest in such capacity, the “Note A-1 Holder”, and, in its capacity as owner of Note A-2, together with its successors and assigns in interest in such capacity, the “Note A-2 Holder”), UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as owner of Note A-3-1, the “Note A-3-1 Holder”), UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as owner of Note A-3-2, the “Note A-3-2 Holder”; the Note A-3-1 Holder and the Note A-3-2 Holder shall be referred to herein collectively as “Note A-3 Holder”; the Note A-1 Holder, the Note A-2 Holder and the Note A-3 Holder shall be referred to herein collectively as the “Senior Noteholder”), and PRIMA MORTGAGE INVESTMENT TRUST, LLC (together with its successors and assigns in interest, in its capacity as owner of the Junior Note, the “Junior Noteholder”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein) the Initial Senior Noteholder originated a certain loan described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) (the “Mortgage Loan”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which is evidenced, inter alia, by four promissory notes (collectively, as amended, modified or supplemented, the “Notes”), each dated July 7, 2015, with the first such note in the original principal amount of $110,000,000.00 (as amended, modified or supplemented, “Note A-1), made by the Mortgage Loan Borrower in favor of Initial Senior Noteholder, with the second such note in the original principal amount of $20,000,000.00 (as amended, modified or supplemented, “Note A-2”), made by the Mortgage Loan Borrower in favor of Initial Senior Noteholder, with the third such note in the original principal amount of $81,000,000.00 (as amended, modified or supplemented, “Note A-3” and together with the Note A-1 and the Note A-2, the “Senior Note”) made by the Mortgage Loan Borrower in favor of the Initial Senior Noteholder, with the fourth such note in the original principal amount of $34,000,000 (as amended, modified or supplemented, the “Junior Note”), made by the Mortgage Loan Borrower in favor of the Initial Junior Noteholder (as defined herein), and secured by a certain first mortgage lien (as amended, modified or supplemented, the “Mortgage”) on one or more parcels of, or estates in, real property located as described on the Mortgage Loan Schedule (collectively, the “Mortgaged Property”);
WHEREAS, the Initial Senior Noteholder and the Initial Junior Noteholder entered into that certain Agreement Among Noteholders, dated as of July 7, 2015, with respect to the Mortgage Loan (the “Original Co-Lender Agreement”);
WHEREAS, Note A-3 has been split into two promissory notes, each dated as of July 7, 2015, with the first such note in the principal amount of $73,000,000.00 (as amended, modified or supplemented, “Note A-3-1”) made by the Mortgage Loan Borrower in favor of the
Note A-3-1 Holder, and the other such note in the principal amount of $8,000,000.00 (as amended, modified or supplemented “Note A-3-2”) made by the Mortgage Loan Borrower in favor of the Note A-3-2 Holder; and
WHEREAS, the Note A-1 Holder, the Note A-2 Holder, the Note A-3 Holder and the Junior Noteholder desire to amend and restate the Original Co-Lender Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree to amend and restate the Original Co-Lender Agreement in its entirety, as follows:
Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Acceptable Insurance Default” shall have the meaning ascribed to such term or any analogous term in the Servicing Agreement.
“Accrued Interest” shall have the meaning assigned to such term in the Mortgage Loan Agreement.
“Additional Servicing Expenses” shall mean (a) all Servicing Advances, fees and/or expenses incurred by and reimbursable to any Servicer, Trustee, Securitization Trust Advisor, Certificate Administrator or fiscal agent pursuant to the Servicing Agreement, and (b) all interest accrued on Advances made by (x) any Servicer, Trustee or fiscal agent in accordance with the terms of the Servicing Agreement or (y) any Non-Lead Servicer, Non-Lead Trustee or the fiscal agent in accordance with the terms of the related Non-Lead Servicing Agreement; provided that the aggregate special servicing administration fee (which fee is payable solely during the period that the Mortgage Loan is a Specially Serviced Mortgage Loan) shall not exceed an amount equal to 1.0% per annum of the outstanding principal balance of the Mortgage Loan, the special servicing liquidation fee (or equivalent) shall not exceed 1.0% of the collections made with respect to the Mortgage Loan or any sums received from proceeds from the disposition of the Mortgaged Property or the Mortgage Loan, as the case may be, and the special servicing workout fee (or equivalent) shall not exceed 1.0% of the collections made with respect to the Mortgage Loan while the Mortgage Loan is a performing or “corrected” loan (or such other analogous term pursuant to the Servicing Agreement).
“Advance Interest Amount” shall mean interest payable on Advances, as specified in the Servicing Agreement or Non-Lead Servicing Agreement, as applicable.
“Advance Interest Rate” shall have the meaning assigned to the term “Advance Rate” or such other analogous term used in the Servicing Agreement or Non-Lead Servicing Agreement, as applicable.
2 |
“Advances” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement or Non-Lead Servicing Agreement, as applicable.
“Affiliate” shall mean with respect to any specified Person (i) any other Person that Controls, is Controlled by or under common Control with such specified Person (each, a “Common Control Party”), (ii) any other Person owning, directly or indirectly, ten percent (10%) or more of the beneficial interests in such Person or (iii) any other Person in which such Person or a Common Control Party owns, directly or indirectly, ten percent (10%) or more of the beneficial interests.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and from and after the Securitization Date shall mean the Certificate Administrator, if any, and if there is no Certificate Administrator, shall mean the Trustee.
“Agent Office” shall mean the designated office of the Agent in the State of New York, which office at the date of this Agreement is located at UBS Real Estate Securities Inc., 1285 Avenue of the Americas, New York, New York, Attention: David Schell, Email address: david.schell@ubs.com, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Noteholders.
“Agreement” shall have the meaning assigned to such term in the preamble.
“Appraisal” shall have the meaning assigned to such term in the Servicing Agreement.
“Anticipated Repayment Date” shall have the meaning assigned to such term in the Mortgage Loan Agreement.
“Appraisal Reduction Amount” shall have the meaning assigned to the term “Appraisal Reduction” or such other analogous term used in the Servicing Agreement.
“Asset Status Report” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
“Balloon Payment” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“Business Day” shall have the meaning assigned to such term in the Servicing Agreement or Non-Lead Servicing Agreement, as applicable.
“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity which is responsible for managing or administering the Junior Note as an
3 |
underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of the Junior Note).
“Certificate Administrator” shall mean the certificate administrator under the Securitization Servicing Agreement, if any.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collection Account” shall mean the trust account or accounts (including any sub-accounts) created and maintained by the Servicer.
“Conduit” shall have the meaning assigned to such term in Section 19(f).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 19(f).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 19(f).
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise; provided that, for purposes of the definition of “Qualified Institutional Lender” as used in this Agreement, “Control” shall also require the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity. “Controlled” and “Controlling” each have the meaning correlative thereto.
“Control Appraisal Period” A “Control Appraisal Period” shall exist with respect to the Mortgage Loan, if and for so long as:
(a) (1) the initial Junior Note Principal Balance minus (2) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received on, the Junior Note after the date of creation of the Junior Note, (y) any Appraisal Reduction Amount for the Mortgage Loan that is allocated to the Junior Note and (z) any losses realized with respect to any Mortgaged Property or the Mortgage Loan that are allocated to the Junior Note, is less than
(b) 25% of the remainder of the (i) initial Junior Note Principal Balance less (ii) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by, the Junior Noteholder on the Junior Note after the date of creation of the Junior Note.
“Controlling Class Representative” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
“Controlling Noteholder” shall mean as of any date of determination (i) the Junior Noteholder, unless a Control Appraisal Period has occurred and is continuing or (ii) if a Control
4 |
Appraisal Period has occurred and is continuing, the Note A-1 Holder and the Note A-2 Holder; provided that at any time Note A-1 or Note A-2 is the Controlling Noteholder and is included in the Lead Securitization, references to the “Controlling Noteholder” herein shall mean the holders of the majority of the class of securities issued in the Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Noteholder” hereunder, as and to the extent provided in the Servicing Agreement; provided that, if the Junior Noteholder would be the Controlling Noteholder pursuant to the terms hereof, but any interest in the Junior Note is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Junior Noteholder as Controlling Noteholder, a Control Appraisal Period shall be deemed to have occurred. If a Control Appraisal Period has occurred and any interest in the Note A-1 or Note A-2 is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Senior Note as Controlling Noteholder, the rights of the Controlling Noteholder shall be exercised by the Note A-3-1 Holder, unless any interest in Note A-3-1 is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, in which case the rights of the Controlling Holder shall be shall be exercised by the Note A-3-2 Holder, unless any interest in Note A-3-2 is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, in which case the rights of the rights of the Controlling Noteholder shall be deemed null and void and no Mortgage Loan Borrower or Mortgage Loan Borrower Related Party shall be entitled to exercise such rights. As of the Closing Date, the Controlling Noteholder will be the Junior Noteholder.
“Cure Period” shall have the meaning assigned to such term in Section 11(a).
“DBRS” shall mean DBRS, Inc., and its successors in interest.
“Defaulted Mortgage Loan Purchase Price” shall mean the sum, without duplication, of (a) the Principal Balance of the Senior Note, (b) accrued and unpaid interest thereon at the Senior Note Rate, from the date as to which interest was last paid in full by Mortgage Loan Borrower up to and including the end of the interest accrual period relating to the Monthly Payment Date next following the date the purchase occurred, (c) any other amounts due under the Mortgage Loan, other than Prepayment Premiums, default interest, late fees, exit fees and any other similar fees, provided that if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser, the Defaulted Mortgage Loan Purchase Price shall include Prepayment Premiums, default interest, late fees, exit fees and any other similar fees, (d) without duplication of amounts under clause (c), any unreimbursed property protection or servicing Advances and any expenses incurred in enforcing the Mortgage Loan Documents (including, without limitation, servicing Advances payable or reimbursable to any Servicer, and earned and unreimbursed special servicing fees not in excess of the limitations set forth in this Agreement), (e) without duplication of amounts under clause (c), any accrued and unpaid Advance Interest Amount, (f) (i) if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser or (ii) if the Mortgage Loan is purchased after ninety (90) days after the first such option becomes exercisable pursuant to Section 12 of this Agreement, any liquidation or workout fees payable under the Securitization Servicing Agreement with respect to the Mortgage Loan and (g) any Recovered Costs not reimbursed previously to the Senior Note
5 |
pursuant to this Agreement. Notwithstanding the foregoing, if the Junior Noteholder is purchasing from the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, the Defaulted Mortgage Loan Purchase Price shall not include the amounts described under clauses (d) through (f) of this definition. If the Mortgage Loan is converted into a REO Property, for purposes of determining the Defaulted Mortgage Loan Purchase Price, interest will be deemed to continue to accrue at the Senior Note Rate on the Senior Note Principal Balance, as if the Mortgage Loan were not so converted. In no event shall the Defaulted Mortgage Loan Purchase Price include amounts due or payable to the Junior Noteholder under this Agreement.
“Defaulted Note Purchase Date” shall have the meaning assigned to such term in Section 12.
“Default Interest” shall mean interest on the Mortgage Loan at a rate per annum equal to the Note Default Interest Spread.
“Depositor” shall mean the Person selected by the Senior Noteholder to create the Securitization Trust.
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Documents.
“Excess Cash Flow” shall have the meaning assigned to such term in the Mortgage Loan Agreement.
“Final Recovery Determination” shall have the meaning assigned to such term in the Servicing Agreement.
“Fitch” shall mean Fitch, Inc., and its successors in interest.
“Guarantor” shall have the meaning assigned to such term in the Mortgage Loan Documents.
“Initial Agent” shall mean UBS Real Estate Securities Inc., in its capacity as the initial agent hereunder.
“Initial Note A-1 Holder” shall mean UBS Real Estate Securities Inc., in its capacity as the initial holder of Note A-1.
“Initial Note A-2 Holder” shall mean UBS Real Estate Securities Inc., in its capacity as the initial holder of Note A-2.
“Initial Note A-3 Holder” shall mean UBS Real Estate Securities Inc., in its capacity as the initial holder of Note A-3.
“Initial Junior Noteholder” shall mean UBS Real Estate Securities Inc., in its capacity as the initial holder of the Junior Note.
6 |
“Initial Noteholders” shall mean, collectively, the Initial Note A-1 Holder, the Initial Note A-2 Holder, the Initial Note A-3 Holder and the Initial Junior Noteholder.
“Initial Senior Noteholder” shall mean UBS Real Estate Securities Inc., in its capacity as the initial holder of the Senior Note.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided, however, that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.
“Insurance and Condemnation Proceeds” shall have the meaning assigned to such term or any one or more analogous terms in the Servicing Agreement.
“Interest Rate” shall mean the Applicable Interest Rate (as defined in the Mortgage Loan Agreement).
“Interim Servicing Agreement” shall mean that certain interim servicing agreement to be negotiated in good faith between the parties hereto after the date hereof. Until such time as the parties hereto execute an Interim Servicing Agreement, the Noteholders shall cause the Mortgage Loan to be serviced by UBS Real Estate Securities Inc., who shall cause Midland Loan Services, Inc. to subservice the Mortgage Loan in accordance with this Agreement and the customary and usual servicing practices of originators of commercial mortgage loans intended to be securitized. The Servicing Fee Rate under the Interim Servicing Agreement will be 1.5 basis points per annum (subject to a minimum monthly fee of $250.00), paid monthly based on the outstanding principal balance of the Notes and calculated on the same basis as interest is accrued on the Mortgage Loan.
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity which holds the Junior Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“Junior Note” shall have the meaning assigned to such term in the recitals.
7 |
“Junior Noteholder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Junior Note Default Rate” shall mean a rate per annum equal to the Junior Note Rate plus the Note Default Interest Spread.
“Junior Note Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Junior Note Principal Balance and the denominator of which is the sum of the Senior Note Principal Balance and the Junior Note Principal Balance.
“Junior Note Principal Balance” shall mean, at any time of determination, the Initial Junior Note Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.
“Junior Note Rate” shall mean the Regular Interest Rate.
“Junior Principal Portion” means, with respect to each Monthly Payment Date, the Junior Note Percentage of principal payment received with respect to the Mortgage Loan, other than any Post-ARD Excess Cash Flow Principal Payment, plus, with respect to any Monthly Payment Date after the Anticipated Repayment Date, the portion of any Post-ARD Excess Cash Flow Principal Payment received with respect to the Mortgage Loan remaining after the application thereof to reduce the Senior Note Principal Balance to zero.
“KBRA” shall mean Kroll Bond Rating Agency, Inc., and its successors in interest.
“Lender” shall have the meaning assigned to such term in the Mortgage.
“Liquidation Proceeds” shall have the meaning assigned to such term or any analogous term in the Servicing Agreement.
“Lead Securitization” shall mean the Securitization of Note A-1 pursuant to the Servicing Agreement in connection with the issuance of the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C3.
“Lead Securitization Note” shall mean Note A-1.
“Lead Securitization Note Holder” shall mean the Note A-1 Holder.
“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.
“Major Decisions” shall mean:
(i) any workout or other change to the Mortgage Loan that would result in any modification of, or waiver with respect to, any Mortgage Loan Document that would result in the extension of the maturity date or extended maturity date
8 |
thereof, a reduction in the interest rate borne thereby or the monthly debt service payment or a deferral or a forgiveness of interest on or principal of the Mortgage Loan or a modification or waiver of any other monetary term of the Mortgage Loan relating to the amount or timing of any payment of principal or interest or any other sums (including the acceptance of discounted pay-offs with respect thereto and reserve requirements but excluding waivers of Default Interest and late charges) due and payable under the Mortgage Loan Documents or a modification or waiver of any material non-monetary provision of the Mortgage Loan, including but not limited to provisions which restrict the Mortgage Loan Borrower or its equity owners from incurring additional indebtedness or transferring interests in the Mortgaged Property or the Mortgage Loan Borrower;
(ii) any modification of, or waiver with respect to, the Mortgage Loan or any Mortgage Loan Document that would result in a discounted pay-off of the Junior Note;
(iii) any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of a REO Property) of the ownership of the Mortgaged Property or any acquisition of the Mortgaged Property by deed-in-lieu of foreclosure or any other exercise of remedies following an Event of Default;
(iv) any material direct or indirect sale of all or any material portion of the Mortgaged Property or REO Property other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no material lender discretion;
(v) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address hazardous materials located at an REO Property;
(vi) any substitution, release or addition of collateral for the Mortgage Loan other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(vii) any release of the Mortgage Loan Borrower or guarantor from liability with respect to the Mortgage Loan including, without limitation, by acceptance of an assumption of the Mortgage Loan by a successor Mortgage Loan Borrower or replacement guarantor other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(viii) any property management company changes (including, but not limited to, the termination or replacement of a property manager or execution, termination, renewal or material modification of any property management agreement), in each case, to the extent lender is required to consent or approve the same under the Mortgage Loan Documents;
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(ix) any determination (1) not to enforce a “due-on-sale” or “due–on–encumbrance” clause (unless such clause is not exercisable under applicable law or such exercise is reasonably likely to result in successful legal action by the Mortgage Loan Borrower) or (2) to accelerate a Mortgage Loan (other than automatic accelerations pursuant to the Mortgage Loan Documents);
(x) any acceptance of an assumption agreement or any other agreement permitting transfers of interests in a mortgagor or guarantor releasing a mortgagor or guarantor from liability under the Mortgage Loan other than pursuant to the specific terms of the Mortgage Loan and for which there is no lender discretion;
(xi) the determination of the Special Servicer that (a) a non-monetary default (other than an Acceptable Insurance Default) has occurred that materially impairs the value of the Mortgaged Property as security for the Mortgage Loan or otherwise materially adversely affects the interests of the related certificateholders or Noteholders in the Mortgage Loan or (b) a default (other than an Acceptable Insurance Default) is reasonably foreseeable, and such default would materially impair the value of the Mortgaged Property as security for the Mortgage Loan or otherwise materially adversely affect the interest of the related certificateholders or Noteholders in the Mortgage Loan, and, in the case of either the foregoing clause (a) or (b), such default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan or, if no cure period is specified and the default is capable of being cured, for 30 days (provided that such 30-day grace period does not apply to a default that gives rise to immediate acceleration without application of a grace period under the terms of the Mortgage Loan);
(xii) any transfer of the Mortgaged Property or any portion thereof, or any transfer of any direct or indirect ownership interest in the Mortgage Loan Borrower, other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(xiii) any incurring of additional debt by the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement or incurring of mezzanine financing by any beneficial owner of the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such mezzanine debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement (other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion);
(xiv) following an Event of Default with respect to the Mortgage Loan, any acceleration of the Mortgage Loan or initiation of judicial bankruptcy or similar proceedings under the Mortgage Loan Documents or with respect to the Mortgage Loan Borrower or the Mortgaged Property or the voting on any plan or
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reorganization, restructuring or similar plan in the bankruptcy of the Mortgage Loan Borrower;
(xv) any determination of an Acceptable Insurance Default;
(xvi) the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of the Mortgage Loan Borrower unless any option to purchase the Senior Note pursuant to Section 12 of this Agreement has expired or been waived under Section 12 hereunder;
(xvii) any proposed modification or waiver of any material provision in the Mortgage Loan Documents governing the type, nature or amount of insurance coverage required to be maintained by the Mortgage Loan Borrower; and
(xviii) any approval of any casualty insurance settlements or condemnation settlements, and any determination to apply casualty proceeds or condemnation awards to the reduction of the debt associated with the Mortgage Loan rather than to the restoration of the Mortgaged Property;
(xix) any approval of a Major Lease or any modification, amendment or renewal thereof (to the extent lender’s approval is required by the Mortgage Loan Documents);
(xx) the waiver or modification of any documentation relating to the Guarantor’s obligations under the Guaranty (as defined in the Mortgage Loan Documents); and
(xxi) the releases of any escrows or reserve accounts other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion.
“Major Lease” shall have the meaning assigned to such term in the Mortgage Loan Agreement.
“Master Servicer” shall have the meaning assigned to such term in the Servicing Agreement.
“Model PSA” shall mean the pooling and servicing agreement dated as of May 1, 2015, among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Securitization Trust Advisor.
“Monetary Default” shall have the meaning assigned to such term in Section 11(a).
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“Monetary Default Notice” shall have the meaning assigned to such term in Section 11(a).
“Monthly Payment” shall mean have the meaning assigned to such term in the Servicing Agreement.
“Monthly Payment Date” shall mean the “Monthly Payment Date” (as defined in the Mortgage Loan Agreement).
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the mortgage loan agreement, dated as of July 7, 2015, between the Mortgage Loan Borrower and the Initial Senior Noteholder, as amended by the First Amendment to Loan Agreement and Omnibus Amendment to Loan Documents, effective as of July 7, 2015, and the Second Amendment to Loan Agreement and Omnibus Amendment to Loan Documents, effective as of July 7, 2015, and as the same may be further amended, restated, renewed, extended, modified or supplemented from time to time, subject to the terms hereof.
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 18.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage, the Note and all other documents now or hereafter evidencing and securing the Mortgage Loan.
“Mortgage Loan Schedule” shall mean the Schedule attached hereto as Exhibit A.
“Net Junior Note Rate” shall mean the Junior Note Rate minus the Servicing Fee Rate.
“Net Senior Note Rate” shall mean the Senior Note Rate minus the Servicing Fee Rate.
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“Non-Controlling Class Representative” shall mean the holders of the majority of the class of securities issued in the Securitization of a Non-Lead Securitization Note designated as the “controlling class” pursuant to the related Non-Lead Servicing Agreement or their duly appointed representative; provided that if 50% or more of the class of securities issued in a Non-Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Noteholder” is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, no person shall be entitled to exercise the rights of such Non-Controlling Class Representative.
“Non-Controlling Note” shall mean each of Note A-1 (solely during such time as the Junior Noteholder is the Controlling Noteholder), Note A-2, Note A-3-1 and Note A-3-2, or any new Note(s) issued in respect thereof.
“Non-Controlling Noteholder” means each holder of a Non-Controlling Note; provided that, at any time a Non-Controlling Note is included in a Securitization, references to a “Non-Controlling Noteholder” herein shall mean the Non-Controlling Class Representative or any other party assigned the rights to exercise the rights of a “Non-Controlling Noteholder” hereunder, as and to the extent provided in the related Non-Lead Servicing Agreement and as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided that if at any time 50% or more of any Non-Controlling Note is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, no person shall be entitled to exercise the rights of such Non-Controlling Noteholder. The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party exercising the rights of each “Non-Controlling Noteholder” herein or under the Servicing Agreement and, (x) to the extent that the related Non-Lead Servicing Agreement assigns such rights to more than one party or (y) to the extent a Non-Controlling Note is split into two or more New Notes pursuant to Section 31, for purposes of this Agreement, such Non-Lead Servicing Agreement or the holders of such New Notes shall designate one party to deal with Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice with respect to each Non-Controlling Note as having been designated as the related Non-Controlling Noteholder, as a Non-Controlling Noteholder for all purposes of this Agreement.
Prior to Securitization of a Non-Lead Securitization Note (including any New Notes), all notices, reports, information or other deliverables required to be delivered to the Non-Lead Securitization Note Holders or the Non-Controlling Noteholders pursuant to this Agreement or the Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the Initial Note A-2 Holder and Initial Note A-3 Holder, and, when so delivered to the Initial Note A-2 Holder and Initial Note A-3 Holder, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Servicing Agreement. Following Securitization of a Non-Lead Securitization Note, all notices, reports, information or other
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deliverables required to be delivered to the related Non-Lead Securitization Note Holder or the related Non-Controlling Noteholder pursuant to this Agreement or the Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the related Non-Lead Master Servicer and the Non-Lead Special Servicer (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Non-Lead Servicing Agreement) and, when so delivered to such Non-Lead Master Servicer and Non-Lead Special Servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Servicing Agreement.
“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit Senior Noteholder to make such payments free of any obligation or liability for withholding.
Non-Lead Depositor” shall mean the “depositor” under a Non-Lead Servicing Agreement.
“Non-Lead Master Servicer” shall have the meaning assigned to such term in Section 2(g).
“Non-Lead Trust Advisor” shall mean the “trust advisor”, “operating advisor” or other analogous term under a Non-Lead Servicing Agreement.
“Non-Lead Securitization Note” shall mean each of Note A-3-1 and Note A-3-2.
“Non-Lead Securitization Note Holder” shall mean each of the Note A-3-1 Holder and the Note A-3-2 Holder.
“Non-Lead Servicing Agreement” shall have the meaning assigned to such term in Section 2(g).
“Non-Lead Securitization Trust” shall mean the Securitization Trust into which a Non-Lead Securitization Note is deposited.
“Non-Lead Servicer” shall mean the Non-Lead Master Servicer or Non-Lead Special Servicer, as applicable.
“Non-Lead Special Servicer” shall have the meaning assigned to such term in Section 2(g).
“Non-Lead Trustee” shall have the meaning assigned to such term in Section 2(g).
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“Non-Monetary Default” shall have the meaning assigned to such term in Section 11(d).
“Non-Monetary Default Cure Period” shall have the meaning assigned to such term in Section 11(d).
“Non-Monetary Default Notice” shall have the meaning assigned to such term in Section 11(d).
“Nonrecoverable Servicing Advance” shall have the meaning assigned to the term “Nonrecoverable Property Advance” or such other analogous term used in the Servicing Agreement.
“Noteholder” shall mean either of the Senior Noteholder and the Junior Noteholder, as applicable.
“Noteholder Purchase Notice” has the meaning assigned to such term in Section 12.
“Note” shall mean any of Note A-1, Note A-2, Note A-3-1, Note A-3-2 and the Junior Note, as applicable.
“Note A-1” shall have the meaning assigned to such term in the recitals.
“Note A-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Note A-1 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note A-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance and the Junior Note Principal Balance.
“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial outstanding principal balance of Note A-1 Balance, less any payments of principal thereon received by the Note A-1 Holder or reductions in such amount pursuant to Sections 3, 4 or 5, as applicable.
“Note A-2” shall have the meaning assigned to such term in the recitals.
“Note A-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Note A-2 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note A-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance and the Junior Note Principal Balance.
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“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial outstanding principal balance of Note A-2, less any payments of principal thereon received by the Note A-2 Holder or reductions in such amount pursuant to Sections 3, 4 or 5, as applicable.
“Note A-3” shall have the meaning assigned to such term in the recitals.
“Note A-3 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Note A-3 Percentage Interest” shall mean, collectively, the Note A-3-1 Percentage Interest and the Note A-3-2 Percentage Interest.
“Note A-3 Principal Balance” shall mean, collectively, the Note A-3-1 Principal Balance and the Note A-3-2 Principal Balance.
“Note A-3-1” shall have the meaning assigned to such term in the recitals.
“Note A-3-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Note A-3-1 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note A-3-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance and the Junior Note Principal Balance.
“Note A-3-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial outstanding principal balance of Note A-3-1, less any payments of principal thereon received by the Note A-3-1 Holder or reductions in such amount pursuant to Sections 3, 4 or 5, as applicable.
“Note A-3-2” shall have the meaning assigned to such term in the recitals.
“Note A-3-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Note A-3-2 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note A-3-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance and the Junior Note Principal Balance.
“Note A-3-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial outstanding principal balance of Note A-3-2, less any payments of principal thereon received by the Note A-3-2 Holder or reductions in such amount pursuant to Sections 3, 4 or 5, as applicable.
“Note Default Interest Spread” shall mean a rate per annum equal to five percent (5%); provided, however, that if the sum of the Interest Rate and the Note Default Interest
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Spread would exceed the maximum rate permitted by applicable law, the Note Default Interest Spread shall equal (i) the rate at which the sum of the Interest Rate and the Note Default Interest Spread equals the maximum rate permitted by applicable law minus (ii) the Interest Rate.
“Note Pledgee” shall have the meaning assigned to such term in Section 19(e).
“Note Rate” shall mean either of the Senior Note Rate and the Junior Note Rate, as applicable.
“Note Register” shall have the meaning assigned to such term in Section 21.
“Operating Advisor” shall mean, with respect to the Mortgage Loan, the advisor appointed pursuant to Section 6(a).
“P&I Advance” shall mean an advance made by (a) a party to the Servicing Agreement in respect of a delinquent monthly debt service payment on the Lead Securitization Note or (b) a party to the Non-Lead Servicing Agreement in respect of a delinquent monthly debt service payment on the related Non-Lead Securitization Note.
“Percentage Interest” shall mean, with respect to the Note A-1 Holder, the Note A-1 Percentage Interest, with respect to the Note A-2 Holder, the Note A-2 Percentage Interest, with respect to the Note A-3-1 Holder, the Note A-3-1 Percentage Interest, with respect to the Note A-3-2 Holder, the Note A-3-2 Percentage Interest, and with respect to the Junior Noteholder, the Junior Note Percentage Interest, as each may be adjusted from time to time.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Person” shall have the meaning assigned to such term in the Servicing Agreement.
“Post-ARD Excess Cash Flow Principal Payments” shall mean the amount of any Excess Cash Flow applied to reduce the principal balance of the Mortgage Loan pursuant to the last sentence of Section 2.3.2 of the Mortgage Loan Agreement.
“Pledge” shall have the meaning assigned to such term in Section 19(e).
“Prepayment Premium” shall mean, with respect to the Mortgage Loan, any prepayment premium, spread maintenance premium, yield maintenance premium or similar fee required to be paid in connection with a prepayment of the Mortgage Loan pursuant to the Mortgage Loan Documents, including any exit fee.
“Principal Balance” shall mean (i) with respect to the Senior Note in the aggregate, the Senior Note Principal Balance , (ii) with respect to any individual Senior Note, the
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Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3-1 Principal Balance or the Note A-3-2 Principal Balance, as applicable and (iii) with respect to the Junior Note, the Junior Note Principal Balance, as applicable.
“Pro Rata and Pari Passu Basis” shall mean with respect to Note A-1, Note A-2, Note A-3-1 and Note A-3-2 and the related Noteholders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Noteholders, as the case may be, without any priority of any such Note or any such Noteholder over another such Note or Noteholder, as the case may be, and in any event such that each Note or Noteholder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.
“Qualified Institutional Lender” shall mean each of the Initial Noteholders and any other U.S. Person that is:
(a) an entity Controlled by, under common Control with or Controlling either the Initial Senior Noteholder or the Initial Junior Noteholder, or
(b) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “institutional accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, or
(iii) a Qualified Trustee (or in the case of a CDO, a single purpose bankruptcy remote entity which contemporaneously assigns or pledges its Junior Note, or a participation interest therein (or any portion thereof) to a Qualified Trustee) in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, any or all of the Junior Note (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies which assigned a rating to one or more classes of securities issued in connection with a securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of a Junior Note to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Junior Note in accordance with servicing
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arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) the Senior Noteholder or the Junior Noteholder, as applicable, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (b)(i), (ii), (iii)(a), (iv)(B) or (v) of this definition, (x) such entity has at least $400,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $1,000,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan or mezzanine loans with respect to commercial real estate or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv) (B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity, or
(c) any entity Controlled by any of the entities described in clause (b) above or approved by the Rating Agencies hereunder as a Qualified Institutional Lender for purposes of this Agreement.
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies.
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“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably designated by the Depositor to rate the securities issued in connection with a Securitization of Note A-1, Note A-2 or either Note A-3; provided, however, that, at any time during which Note A-1, Note A-2 or either Note A-3 is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean with respect to Note A-1, Note A-2 or such Note A-3, only those rating agencies that are engaged by the Depositor from time to time to rate the securities issued in connection with the Securitization of such Note.
“Rating Agency Confirmation” shall have the meaning given thereto or any analogous term in the Securitization Servicing Agreement or Non-Lead Securitization Agreement, as applicable, including any deemed Rating Agency Confirmation.
“Recovered Costs” shall mean any amounts referred to in clauses (d) and/or (e) of the definition of “Defaulted Mortgage Loan Purchase Price” that, at the time of determination, had been previously paid or reimbursed to any Servicer from sources other than collections on or in respect of the Mortgage Loan or the Mortgaged Property (including, without limitation, from collections on or in respect of loans other than the Mortgage Loan).
“Redirection Notice” shall have the meaning assigned to such term in Section 19(e).
“Regular Interest Rate” shall have the meaning assigned to such term in the Mortgage Loan Agreement.
“REMIC” shall mean a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code.
“REMIC Provisions” shall mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, either (a) the applicable replacement has a special servicer ranking of at least “MOR CS3” by Morningstar (if ranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a master servicer or special servicer, as applicable, on a deal or transaction-level basis for all or a
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significant portion of the related mortgage loans in other CMBS transactions rated by any of S&P, Moody’s, Fitch, DBRS or KBRA and the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies that Morningstar has not, with respect to any such other CMBS transaction, qualified, downgraded or withdrawn its rating or ratings on one or more classes of such CMBS transaction citing servicing concerns of the applicable replacement as the sole or material factor in such rating action, and (v) in the case of DBRS or KBRA, as applicable, has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.
“REO Property” shall have the meaning assigned to such term in the Servicing Agreement.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors in interest.
“Securitization” shall mean one or more sales by the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder of all or a portion of its respective Note to a depositor, who will in turn include such portion of such Senior Note as part of a securitization of one or more mortgage loans.
“Securitization Date” shall mean the effective date on which the Securitization of Note A-1 or any portion thereof is consummated.
“Securitization Servicing Agreement” shall mean a pooling and servicing agreement, substantially in the form of the Model PSA (provided that such agreement shall not adversely affect the rights or obligations hereunder of Junior Noteholder in any material respect), to be entered into in connection with the first Securitization of the Senior Note or any portion thereof, by and among (a) the Trustee, (b) the Person who serves as master servicer from and after the Securitization Date, (c) the Person which serves as special servicer from and after the Securitization Date, (d) the Person who serves as Securitization Trust Advisor from and after the Securitization Date and (e) the Depositor, and any other additional Persons that may be party to such pooling and servicing agreement; provided it is acknowledged that such agreement is subject in all respects to changes (i) required by the Code relating to the tax elections of the related Securitization Trust (ii) required by law or changes in any law, rule or regulation and (iii) requested by the Rating Agencies or any purchaser of subordinate certificates. The Servicing Standard in the Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder (taking into account that the Junior Note is junior to the Senior Note).
“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which Note A-1, Note A-2 or either Note A-3 is held.
“Securitization Trust Advisor” shall mean the operating trust advisor, senior trust advisor or any analogous entity under the Securitization Servicing Agreement, if any.
“Senior Note” shall have the meaning assigned to such term in the recitals.
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“Senior Noteholder” shall mean, collectively, the holders of the Senior Note, together with their respective successors and assigns.
“Senior Note Default Rate” shall mean a rate per annum equal to the Senior Note Rate plus the Note Default Interest Spread.
“Senior Note Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Senior Note Principal Balance and the denominator of which is the sum of the Senior Note Principal Balance and the Junior Note Principal Balance.
“Senior Note Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Senior Note Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Senior Noteholder or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.
“Senior Note Rate” shall mean the Regular Interest Rate.
“Senior Principal Portion” means, with respect to each Monthly Payment Date, the Senior Note Percentage of principal payments received with respect to the Mortgage Loan, other than any Post-ARD Excess Cash Flow Principal Payments, plus, with respect to any Monthly Payment Date after the Anticipated Repayment Date, 100% of any Post-ARD Excess Cash Flow Principal Payment received with respect to the Mortgage Loan.
“Sequential Pay Event” shall mean any Event of Default with respect to an obligation to pay money due under the Mortgage Loan, any other Event of Default for which the Mortgage Loan is actually accelerated or any other Event of Default which causes the Mortgage Loan to become a Specially Serviced Mortgage Loan, or any bankruptcy or insolvency event that constitutes an Event of Default; provided, however, that unless the Servicer under the Servicing Agreement has notice or knowledge of such event at least ten (10) Business Days prior to the applicable distribution date, distributions will be made sequentially beginning on the subsequent distribution date; provided, further, that the aforementioned requirement of notice or knowledge will not apply in the case of distribution of the final proceeds of a liquidation or final disposition of the Mortgage Loan. A Sequential Pay Event shall no longer exist, if it has been cured, including by any cure payment made by the Controlling Noteholder in accordance with the exercise of its cure rights under Section 11.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
“Servicer Termination Event” shall have the meaning given thereto in the Servicing Agreement.
“Servicing Advance” shall have the meaning given to the term “Property Advance” in the Servicing Agreement.
“Servicing Agreement” shall mean, with respect to the Mortgage Loan, prior to the Securitization Date, the Interim Servicing Agreement, and, from and after the Securitization Date, the Securitization Servicing Agreement.
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“Servicing Fee Rate” shall have the meaning assigned to such term in the Servicing Agreement.
“Servicing Standard” shall have the meaning assigned to such term or any analogous term in the Servicing Agreement.
“Servicing Transfer Event” shall have the meaning assigned to such term or any analogous term in the Servicing Agreement.
“Special Servicer” shall have the meaning assigned to such term in the Servicing Agreement.
“Specially Serviced Mortgage Loan” shall have the meaning assigned to such term in the Servicing Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Threshold Event Collateral” shall have the meaning assigned to such term in Section 5(g).
“Threshold Event Cure” shall have the meaning assigned to such term in Section 5(g).
“Transfer” shall mean any sale, assignment, transfer, pledge, syndication, participation, hypothecation, contribution, encumbrance or other disposition (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 19(e)).
“Trustee” shall mean the bank or trust company as may be selected by the Depositor and approved by the Rating Agencies to act as trustee for the Securitization, and shall include any fiscal agent and/or paying agent appointed for such Securitization.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 that is eligible to elect to be treated as a U.S. Person).
“Whole Loan Custodial Account” shall mean the custodial account or subaccount established for the Mortgage Loan pursuant to the Servicing Agreement.
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“Workout” shall mean any written modification, waiver, amendment, restructuring or workout of the Mortgage Loan or the Note entered into with the Mortgage Loan Borrower in accordance with the Servicing Agreement.
Section 2. Purchase of Junior Note; Servicing.
(a) Each Noteholder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date pursuant to the Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 2(f)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Lead Securitization Note (and each Non-Lead Master Servicer shall be required to advance monthly payments of principal and interest on the related Non-Lead Securitization Note pursuant to the terms of the related Non-Lead Servicing Agreement) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement including any provisions governing the determination of non-recoverability. The Junior Noteholder acknowledges that each of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder may elect, in its sole discretion, to include the Note A-1, Note A-2, Note A-3-1 and/or Note A-3-2 or any portion thereof in one or more Securitizations and agrees that it will, subject to Section 24, reasonably cooperate with the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder, at the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s, as applicable, expense, to effect any such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer, the Trustee, any Certificate Administrator and any Securitization Trust Advisor under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer (or any other such parties) with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder. Each Servicer shall be required pursuant to the Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Servicing Agreement and applicable law, shall provide information to each Non-Lead Servicer to enable such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
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(b) In no event shall the Junior Noteholder be entitled to exercise any rights of the “directing holder”, controlling class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Junior Noteholder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) The Securitization Servicing Agreement shall, unless otherwise agreed to by the Controlling Noteholder, contain (i) servicing and reporting provisions (including Asset Status Reports for all Major Decisions) substantially similar in all material respects to the servicing provisions of the Model PSA and (ii) a Servicing Standard substantially similar in all material respects to the servicing standard in the Model PSA. In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Junior Noteholder or materially increase the Junior Noteholder’s obligations or materially decrease the Junior Noteholder’s rights, remedies or protections hereunder. The Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholder hereunder.
(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then the Junior Noteholder or its’ designees (if the Junior Noteholder is the Controlling Holder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the Noteholders in accordance with Section 3 and Section 4 hereof on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iii) the Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the Mortgage Loan Borrower or the Mortgaged Property as such Person may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or the Special Servicer of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the securities issued by the Securitization Trust that includes other Notes but not limited to
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standard CREFC reports, provided that if an interest in the Junior Note or the Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy;
(iv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(v) the Securitization Servicing Agreement may not be amended without the consent of the Junior Noteholder if such amendment would materially and adversely affect the Junior Noteholder’s rights with respect to the Mortgaged Loan (as reasonably determined by the Junior Noteholder) thereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
(f) At any time after the Securitization Date that the Note A-1 Holder is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A-1 Holder shall cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to the other Noteholders, in substance, to those in the Securitization Servicing Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if any Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such Securitization; provided, further, however, that until a replacement servicing agreement has been entered into, the Note A-1 Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A-1 Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement.
(g) The Master Servicer shall be the master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Servicing Agreement) (i) shall be required to make Servicing Advances with respect to the Mortgage Loan, subject to the terms of the Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first from funds on deposit in the Whole Loan Custodial Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Servicing Advances, if such funds on deposit in the Whole Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Servicing Agreement and from general collections of each Non-Lead Securitization as provided below. The Master Servicer, the
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Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, in the manner and from the sources provided in the Servicing Agreement, including from general collections of the Lead Securitization and, in the case of Servicing Advances, from general collections of each Non-Lead Securitization as provided below. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Servicing Advance or any Advance Interest Amounts on a Servicing Advance or a Nonrecoverable Servicing Advance, each Non-Lead Securitization Note Holder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Servicing Advance or Advance Interest Amounts.
In addition, each Non-Lead Securitization Note Holder (including, but not limited to, any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Trust Advisor or the Depositor, as applicable, is entitled to be reimbursed pursuant to the Servicing Agreement and any costs, fees and expenses related to obtaining any Rating Agency Confirmation, to the extent amounts on deposit in the Whole Loan Custodial Account are insufficient for reimbursement of such amounts. Each Non-Lead Securitization Note Holder agrees to indemnify (i) (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Servicing Agreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Trust Advisor and the Depositor (and any director, officer, member, manager, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Servicing Agreement in respect of other mortgage loans) and (ii) the Lead Securitization Trust (such parties in clause (i) and the Lead Securitization Trust, collectively, the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property (or, with respect to the Trust Advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account are insufficient for reimbursement of such amounts, such Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for their pro rata share of the insufficiency (including, if the related Non-Lead Securitization Note has been included in a Non-Lead Securitization, from general collections or any other amounts from such Non-Lead Securitization Trust).
The master servicer under a Non-Lead Securitization (each, a “Non-Lead Master Servicer”) may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the servicing agreement for the related Securitization (each, a “Non-Lead Servicing Agreement”), the Servicing Agreement and this Agreement. The
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Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Servicing Agreement. Each Non-Lead Master Servicer and the special servicer and the trustee under each Non-Lead Servicing Agreement (each, respectively, a “Non-Lead Special Servicer” and a “Non-Lead Trustee”), as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the related Non-Lead Servicing Agreement. The Master Servicer and the Trustee, as applicable, and each Non-Lead Master Servicer or Non-Lead Trustee shall be required to notify the other of the amount of its P&I Advance within two Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to the related Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Servicing Advance would be non-recoverable or an outstanding Servicing Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or a Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Servicing Agreement, in the case of the a determination of non-recoverability by such Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or Non-Lead Master Servicers and the Non-Lead Trustees, as the case may be, of the other Securitization on or prior to the next Master Servicer Remittance Date. Each of the Master Servicer, the Trustee, Non-Lead Master Servicers and Non-Lead Trustees, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Whole Loan Custodial Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Servicing Agreement and (ii) in the case of a Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Servicing Agreement
(h) Each Non-Lead Securitization Note Holder, if the related Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special
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Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Servicing Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Trust Advisor (i) promptly following the Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Noteholder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Noteholder” under this Agreement (together with the relevant contact information);
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(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Servicing Agreement; and
(v) the Non-Lead Master Servicer, the Non-Lead Special Servicer, the Non-Lead Trustee and the Non-Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(i) The Servicing Agreement shall provide that compensating interest payments as defined therein with respect to Note A-1, Note A-2 and Note A-3 will be allocated by the Master Servicer between Note A-1, Note A-2 and Note A-3, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of a Non-Lead Securitization Note to the related Non-Lead Securitization Note Holder.
Section 3. Subordination of Junior Note; Payments Prior to a Sequential Pay Event. The Junior Note and the right of the Junior Noteholder to receive payments of interest, principal and other amounts with respect to such Junior Note shall at all times be junior, subject and subordinate to the Senior Note and the right of the Senior Noteholder to receive payments of interest, principal and other amounts with respect to the Senior Note as set forth herein. If no Sequential Pay Event, as determined by the applicable Servicer, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent, in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under the Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Trust Advisor, Certificate Administrator or Trustee with respect to the Mortgage Loan pursuant to the Servicing Agreement, shall be applied by the Senior Noteholder (or its designee) and distributed by the Servicer for payment in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):
(a) first, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder in an amount equal to the accrued and unpaid interest on the Note A-1 Principal Balance, on the Note A-2 Principal Balance, on the Note A-3-1 Principal Balance and on the Note A-3-2 Principal Balance, in each case at the Net Senior Note Rate;
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(b) second, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder on a Pro Rata and Pari Passu Basis in an amount equal to the Senior Principal Portion of principal payments received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan, until their Principal Balances have been reduced to zero;
(c) third, up to the amount of any unreimbursed costs and expenses paid by the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and/or the Note A-3-2 Holder, including any Recovered Costs not previously reimbursed such Senior Noteholder (or paid or advanced by any Servicer on its behalf and not previously paid or reimbursed) with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement;
(d) fourth, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder on a Pro Rata and Pari Passu Basis in an amount equal to the Senior Note Percentage Interest of any Prepayment Premium to the extent paid by the Mortgage Loan Borrower;
(e) fifth, if, as a result of a Workout the Principal Balance of the Senior Note has been reduced, to the Senior Noteholder in an amount up to the reduction of the Senior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Senior Note Rate;
(f) sixth, to the Junior Noteholder in an amount equal to the accrued and unpaid interest on the Junior Note Principal Balance at the Net Junior Note Rate;
(g) seventh, to the Junior Noteholder in an amount equal to the Junior Principal Portion of principal payments received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan, until the Junior Note Principal Balance has been reduced to zero;
(h) eighth, to the Junior Noteholder in an amount equal to the Junior Note Percentage Interest of any Prepayment Premium to the extent paid by the Mortgage Loan Borrower;
(i) ninth, to the extent the Junior Noteholder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Junior Noteholder for all such cure payments;
(j) tenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(i) and, as a result of a Workout the Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the Junior Noteholder in an amount up to the reduction, if any, of the Junior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Junior Note Rate;
(k) eleventh, to the extent assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to provide reimbursement for interest on any
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Advances, to pay any Additional Servicing Expenses or to compensate a Servicer (in each case provided that such reimbursements or payments relate to the Mortgage Loan), any such assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and the Junior Noteholder, pro rata, based on their respective Percentage Interests;
(l) twelfth, to the Senior Noteholder in an amount equal to the Senior Note Percentage Interest of any Accrued Interest to the extent paid by the Mortgage Loan Borrower;
(m) thirteenth, to the Junior Noteholder in an amount equal to the Junior Note Percentage Interest of any Accrued Interest to the extent paid by the Mortgage Loan Borrower; and
(n) lastly, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a) through (m), any remaining amount shall be paid to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and the Junior Noteholder, pro rata, based on their respective initial Percentage Interests.
Section 4. Payments Following a Sequential Pay Event. Payments of interest and principal shall be made to the Noteholders in accordance with Section 3 of this Agreement; provided, if a Sequential Pay Event, as determined by the applicable Servicer and as set forth in the Servicing Agreement, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof (including without limitation amounts received by the Master Servicer or Special Servicer pursuant to the Servicing Agreement as reimbursements on account of recoveries in respect of Advances), whether received in the form of Monthly Payments, any proceeds from the sale or distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents deemed appropriate by the Servicer in accordance with the Servicing Standard to continue to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Trust Advisor, Certificate Administrator or Trustee with respect to this Mortgage Loan pursuant to the Servicing Agreement with respect to the Mortgage Loan, shall be distributed by the Servicer in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):
(a) first, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder in an amount equal to the accrued and unpaid interest on the
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Note A-1 Principal Balance, on the Note A-2 Principal Balance, on the Note A-3-1 Principal Balance and on the Note A-3-2 Principal Balance, in each case at the Net Senior Note Rate;
(b) second, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder on a Pro Rata and Pari Passu Basis in an amount equal to the Senior Note Principal Balance, until the Senior Note Principal has been reduced to zero;
(c) third, up to the amount of any unreimbursed costs and expenses paid by the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and/or the Note A-3-2 Holder, including any Recovered Costs not previously reimbursed to such Noteholder (or paid or advanced by any Servicer on its behalf and not previously paid or reimbursed) with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement;
(d) fourth, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder on a Pro Rata and Pari Passu Basis in an amount equal to the Senior Note Percentage Interest of any Prepayment Premium to the extent paid by the Mortgage Loan Borrower;
(e) fifth, if, as a result of a Workout the Principal Balance of the Senior Note has been reduced, to the Senior Noteholder in an amount up to the reduction of the Senior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Senior Note Rate;
(f) sixth, to the Junior Noteholder in an amount equal to the accrued and unpaid interest on the Junior Note Principal Balance at the Net Junior Note Rate;
(g) seventh, to the Junior Noteholder in an amount equal to the Junior Note Principal Balance, until the Junior Note Principal Balance has been reduced to zero;
(h) eighth, to the Junior Noteholder in an amount equal to the Junior Note Percentage Interest of any Prepayment Premium to the extent paid by the Mortgage Loan Borrower;
(i) ninth, to the extent the Junior Noteholder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Junior Noteholder for all such cure payments;
(j) tenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(i) and, as a result of a Workout the Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the Junior Noteholder in an amount up to the reduction, if any, of the Junior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Junior Note Rate;
(k) eleventh, to the extent assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to provide reimbursement for interest on any Advances, to pay any Additional Servicing Expenses or to compensate a Servicer (in each case
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provided that such reimbursements or payments relate to the Mortgage Loan), any such assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and the Junior Noteholder, pro rata, based on their respective Percentage Interests;
(l) twelfth, to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder on a Pro Rata and Pari Passu Basis in an amount equal to the Senior Note Percentage Interest of any Accrued Interest to the extent paid by the Mortgage Loan Borrower;
(m) thirteenth, to the Junior Noteholder in an amount equal to the Junior Note Percentage Interest of any Accrued Interest to the extent paid by the Mortgage Loan Borrower; and
(n) lastly, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a)-(m), any remaining amount shall be paid to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and the Junior Noteholder, pro rata, based on their respective initial Percentage Interests.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including, without limitation, Section 5(f) below) and the Servicing Agreement, the Lead Securitization Noteholder (or the Servicer acting on behalf of the Lead Securitization Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy and, except as provided in Section 5(f), the other Noteholders shall not have any voting, consent or other rights whatsoever with respect to the Lead Securitization Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Servicing Agreement (including, without limitation, Section 5(f) below), each of the other Noteholders agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Noteholder (or the Servicer acting on behalf of the Lead Securitization Noteholder) the rights, if any, that the Lead Securitization Noteholder and the other Noteholders have to, (i) call or cause the Lead Securitization Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Noteholder (or the Servicer acting on behalf of the Lead Securitization Noteholder) shall not have any fiduciary duty to the other Noteholders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Noteholder from the obligation to make any disbursement of funds as set forth herein).
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Each of the Note A-1 Holder, Note A-2 Holder and each Note A-3 Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Mortgage Loan and the determination by the Special Servicer to sell the Lead Securitization Note in accordance with the Servicing Agreement, to sell the Non-Controlling Notes together as notes evidencing one whole loan in accordance with the terms of the Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell such Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Servicing Agreement in writing. The Trustee (based upon updated Appraisals ordered by the Special Servicer and received by the Trustee (or ordered by the Trustee if the Special Servicer or any of its Affiliates is an Interested Person)) shall determine whether any cash offer constitutes a fair price for the Senior Note (in the manner set forth in the Servicing Agreement) if the highest offeror is an Interested Person, and any such determination by the Trustee shall be binding upon all parties. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Senior Note without the written consent of each Non-Controlling Note Holder (provided that such consent is not required if the related Non-Controlling Note is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Controlling Note Holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least 10 days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by a Non-Controlling Note Holder that are material to the price of the Mortgage Loan and (d) until the sale is completed and a reasonable period of time (but no less time than is afforded to other offerors and the Subordinate Class Representative (as such term is defined in the Servicing Agreement)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided, however, that any Non-Controlling Note Holder may waive any delivery or timing requirements set forth in this sentence only for itself. Subject to the foregoing, each of the Non-Controlling Note Holders and the Non-Controlling Class Representatives shall be permitted to submit an offer at any sale of the Mortgage Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower.
Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank,
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to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.
The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the Initial Note A-1 Holder from the trust fund established under the Servicing Agreement in connection with a material breach of representation or warranty made by the Initial Note A-1 Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by the Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Initial Note A-1 Holder or any document delivery obligation imposed on the Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by the Initial Note A-1 Holder in connection with the Lead Securitization
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing Agreement. The Noteholders agree to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or the Servicer on its behalf) shall service the Mortgage Loan in accordance with the terms of this Agreement, including without limitation the rights of the Junior Noteholder set forth in Section 5(f) below. Servicing of the Mortgage Loan shall generally be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan, by the Special Servicer, in each case pursuant to the Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Lead Securitization Noteholder, the Non-Lead Securitization Noteholders and the Junior Noteholder as a collective whole (it being understood that the interest of the Junior Noteholder is a junior Note interest, subject to the terms and conditions of this Agreement), and any Non-Lead Securitization Noteholder or Junior Noteholder who is not the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Operating Advisor to exercise their respective rights specifically set forth under this Agreement.
(c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Section 6) if the Servicer (on behalf of the Noteholders) in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred, or (iv) any other adjustment (other than an increase in the Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the
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Mortgage Loan, all payments to the Note A-1 Holder, the Note A-2 Holder and each Note A-3 Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A-1, Note A-2 and each Note A-3 remaining the same as they are on the date hereof, the Junior Note shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout (up to the amount otherwise due on the Junior Note). Subject to the Servicing Agreement and this Agreement (including without limitation Sections 5(f) and 6), in the case of any modification or amendment described above, the Servicer (on behalf of the Noteholders) shall have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of the Junior Note to Note A-1, Note A-2 and Note A-3 with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A-1 Percentage Interest, the Note A-2 Percentage Interest, the Note A-3-1 Percentage Interest and the Note A-3-2 Percentage Interest and to reduce the Junior Note Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Senior Note Rate and the Junior Note Rate, as applicable, in order to reflect a reduction in the Interest Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan.
(d) All rights and obligations of the Senior Noteholder described hereunder may be exercised by the Servicer on behalf of the Senior Noteholder in accordance with the Servicing Agreement and this Agreement.
(e) For so long as any of Note A-1, Note A-2 or either Note A-3 is included as an asset of a REMIC, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Senior Note and the Junior Note shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Sections 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Senior Noteholder pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interests of the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Sections 860G(a)(8) of the Code and (iii) the Lead Securitization Noteholder may not modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Lead Securitization Noteholder may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G 2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the earliest startup day of any REMIC which includes Note A-1, Note A-2 or either Note A-3 (or any portion thereof). The Noteholders agree that the provisions of this Section 5(e) shall be effected by compliance by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement or any other agreement which governs the administration of the Mortgage Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that
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such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne solely by the Note A-1 Holder, the Note A-2 Holder and the applicable Note A-3 Holder on a Pro Rata and Pari Passu Basis.
Anything herein or in the Servicing Agreement to the contrary notwithstanding, in the event that any of Note A-1, Note A-2 or either Note A-3 is included in a REMIC, neither the Junior Noteholder nor any Noteholder whose Note is not included in such REMIC shall be required to reimburse the Noteholder whose Note is included in such REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Noteholder be reduced to offset or make-up any such payment or deficit.
(f) Except as hereinafter provided, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan or the Mortgage Loan Documents (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed, at least ten (10) Business Days prior to taking action with respect to such Major Decision (or making a determination not to take action with respect to such Major Decision), the Lead Securitization (or the Servicer acting on its behalf) must receive the written consent of the Controlling Noteholder (or its Operating Advisor) before implementing a decision with respect to such Major Decision. For the avoidance of doubt, except as hereinafter provided, the Senior Noteholder shall obtain the written consent of the Controlling Noteholder for all Major Decisions.
If the Lead Securitization Noteholder (or the Servicer acting on its behalf) has not received a response from the Controlling Noteholder (or its Operating Advisor) with respect to such Major Decision within five (5) Business Days after delivery of the notice of a Major Decision, the Lead Securitization (or the Servicer acting on its behalf) shall deliver an additional copy of the notice of a Major Decision in all caps bold 14-point font: “This is a Second Notice. Failure to respond within five (5) Business Days of this Second Notice will result in a loss of your right to consent with respect to this decision.” and if the Controlling Noteholder (or its Operating Advisor) fails to respond to the Lead Securitization (or the Servicer acting on its behalf) with respect to any such proposed action within five (5) Business Days after receipt of such second notice, the Controlling Noteholder (or its Operating Advisor), as applicable, shall have no further consent rights with respect to such action.
Notwithstanding the foregoing, following the occurrence of an extraordinary event with respect to any Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Lead Securitization Noteholder (or the Servicer acting on its behalf) may take actions with respect to such Mortgaged Property before obtaining the consent of the Controlling Noteholder (or its Operating Advisor) if the Lead Securitization Noteholder (or the Servicer acting on its behalf) reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent
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would materially and adversely affect the interest of the Noteholders, and the Lead Securitization Noteholder (or the Servicer acting on its behalf) has made a reasonable effort to contact the Controlling Noteholder (or its Operating Advisor). The foregoing shall not relieve the Lead Securitization Noteholder (or the Servicer acting on its behalf) of its duties to comply with the Servicing Standard.
Notwithstanding the foregoing, the Lead Securitization Noteholder (or the Servicer acting on its behalf) shall not follow any advice or consultation provided by the Controlling Noteholder (or its Operating Advisor) that would require or cause the Lead Securitization Noteholder (or the Servicer acting on its behalf) to violate any applicable law, including the REMIC Provisions, be inconsistent with the Servicing Standard, require or cause the Lead Securitization Noteholder (or the Servicer acting on its behalf) to violate provisions of this Agreement or the Servicing Agreement, require or cause the Lead Securitization Noteholder (or the Servicer acting on its behalf) to violate the terms of the Mortgage Loan, or materially expand the scope of any Lead Securitization Noteholder’s (or the Servicer’s) responsibilities under this Agreement.
(g) During the continuation of a Control Appraisal Period, the Lead Securitization Note Holder (or its Controlling Class Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Controlling Class Representative under the Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Servicing Agreement.
Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall be required to provide copies of any notice, information and report that it is required to provide to the Controlling Class Representative pursuant to the Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Noteholder (or its controlling class representative), within the same time frame it is required to provide to the Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Representative under the Servicing Agreement due to the occurrence of a Control Termination Event (as defined in the Servicing Agreement) or a Consultation Termination Event (as defined in the Servicing Agreement)).
The Lead Securitization Note Holder (or the Special Servicer on its behalf) shall be required to consult with each Non-Controlling Noteholder (or its controlling class representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Noteholder (or its controlling class representative) requests consultation with respect to any such Major Decisions or the
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implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Noteholder (or its controlling class representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the Non-Controlling Noteholders (or their respective controlling class representatives) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Representative, the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall no longer be obligated to consult with the Non-Controlling Noteholders (or their respective controlling class representatives), whether or not the Non-Controlling Noteholders (or their respective controlling class representatives) have responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto).
Notwithstanding the consultation rights of the Non-Controlling Noteholders (or their respective controlling class representatives) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Servicer acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Servicer acting on its behalf) determines that immediate action with respect thereto is necessary to protect the interests of the Noteholders. In no event shall the Lead Securitization Note Holder (or Servicer acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Noteholders (or its controlling class representative).
In addition to the consultation rights of the Non-Controlling Noteholders (or their respective controlling class representatives) provided in the immediately preceding paragraph, the Non-Controlling Noteholders shall have the right to attend annual meetings (either telephonically or in person, in the discretion of the Servicer) with the Lead Securitization Note Holder (or the Servicer acting on its behalf) at the offices of the Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.
(h) The Controlling Noteholder shall be entitled to avoid its applicable Control Appraisal Period caused by application of an Appraisal Reduction Amount upon satisfaction of the following (which must be completed within thirty (30) days of the receipt of a third party Appraisal that indicates such Control Appraisal Period has occurred): (i) such Controlling Noteholder shall have delivered as a supplement to the appraised value of the Mortgaged Property, in the amount specified in clause (ii) below, to the Servicer, together with documentation acceptable to the Servicer in accordance with the Servicing Standard to create and perfect a first priority security interest in favor of the Lead Securitization Noteholder in such collateral (a) cash collateral for the benefit of, and acceptable to, the Servicer or (b) an unconditional and irrevocable standby letter of credit with the Lead Securitization Noteholder as the beneficiary, in form reasonably acceptable to the Servicer, issued by a bank or other financial institutions the long term unsecured debt obligations of which are at all times rated at least “AA” by S&P, “A” by Fitch and “Aa2” by Moody’s or the short term obligations of which are rated at least “A-1+” by S&P, “F-1” by Fitch and “P-1” by Moody’s (either (a) or (b), the “Threshold
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Event Collateral”), and (ii) the Threshold Event Collateral shall be in an amount which, when added to the appraised value of the Mortgaged Property as determined pursuant to the Servicing Agreement, would cause the applicable Control Appraisal Period not to occur. If the requirements of this paragraph are satisfied by the Controlling Noteholder (a “Threshold Event Cure”), no Control Appraisal Period caused by application of an Appraisal Reduction Amount shall be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the applicable Controlling Noteholder shall be required to renew such letter of credit not later than thirty (30) days prior to expiration thereof or to replace such letter of credit with a substitute letter of credit or other Threshold Event Collateral with an expiration date that is greater than forty-five (45) days from the date of substitution; provided, however, that, if a letter of credit is not renewed prior to thirty (30) days prior to the expiration date of such letter of credit, the letter of credit shall provide that the Servicer may (and at the direction of the applicable Controlling Noteholder, shall) draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. If a letter of credit is furnished as Threshold Event Collateral, the applicable Controlling Noteholder shall be required to replace such letter of credit with other Threshold Event Collateral within 30 days if the credit ratings of the issuing entity are downgraded below the required ratings; provided, however, that, if such Threshold Collateral is not so replaced, the Servicer shall draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure shall continue until (i) the appraised value of the Mortgaged Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Appraisal Period from occurring; or (ii) the occurrence of a Final Recovery Determination. If the appraised value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or some portion of, Threshold Event Collateral previously delivered by the Controlling Noteholder, any or such portion of Threshold Event Collateral held by the Servicer shall promptly be returned to such Controlling Noteholder (at its sole expense). Upon a Final Recovery Determination with respect to the Mortgage Loan, such Threshold Event Collateral shall be available to reimburse each Noteholder for any realized loss pursuant to Section 3 or 4, as applicable, with respect to the Mortgage Loan after application of the net proceeds of liquidation, not in excess of the Senior Note Principal Balance and the Junior Note Principal Balance, as the case may be, plus accrued and unpaid interest thereon at the applicable interest rate and all other Additional Servicing Expenses reimbursable under this Agreement and under the Servicing Agreement. Any Threshold Event Collateral shall be treated as an “outside reserve fund” for purposes of the REMIC Provisions and such property (and the right to reimbursement of any amounts with respect thereto from a REMIC) shall be beneficially owned by the posting Noteholder who shall be taxed on all income with respect thereto. The entire amount of Threshold Event Collateral, without a haircut or other reduction, shall be considered in determining the sufficiency of such Threshold Event Collateral to avoid a Control Appraisal Period.
(i) The Servicer or the Special Servicer shall obtain Appraisals that meet the requirements of, and at the times required pursuant to, the terms of the Securitization Servicing Agreement.
Section 6. Appointment of Operating Advisor.
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(a) The Controlling Noteholder shall have the right at any time to appoint an operating advisor to exercise its rights hereunder (the “Operating Advisor”). The Controlling Noteholder shall have the right in its sole discretion at any time and from time to time to remove and replace the Operating Advisor. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Noteholder may, at its option, in each case, act through the Operating Advisor. The Operating Advisor may be any Person (other than the Mortgage Loan Borrower, its principal or any Mortgage Loan Borrower Related Party), including, without limitation, the Controlling Noteholder, any officer or employee of the Controlling Noteholder, any Affiliate of the Controlling Noteholder or any other unrelated third party. No such Operating Advisor shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Noteholder). All actions that are permitted to be taken by the Controlling Noteholder under this Agreement may be taken by the Operating Advisor acting on behalf of the Controlling Noteholder and the Lead Securitization Noteholder will accept such actions of the Operating Advisor as actions of the Controlling Noteholder. The Lead Securitization Noteholder (or any Servicer on its behalf) shall not be required to recognize any Person as an Operating Advisor until the Controlling Noteholder has notified the Lead Securitization Noteholder (and any Servicer) of such appointment and, if the Operating Advisor is not the same Person as the Controlling Noteholder, the Operating Advisor provides the Lead Securitization Noteholder (and any Servicer) with written confirmation of its acceptance of such appointment, an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and facsimile numbers). The Lead Securitization Noteholder shall promptly deliver such information to any Servicer.
(b) Neither the Operating Advisor nor the Controlling Noteholder shall have any liability to the other Noteholders or any other Person for any action taken, or for refraining from the taking of any action or in the giving of any consent or the failure to give any consent pursuant to this Agreement or the Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Senior Noteholder and the Junior Noteholder agree that the Operating Advisor and any Controlling Noteholder (whether acting in place of the Operating Advisor when no Operating Advisor shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to such Controlling Noteholder hereunder) may take or refrain from taking actions that favor the interests of one Noteholder over other Noteholders, and that the Operating Advisor may have special relationships and interests that conflict with the interests of a Noteholder and, absent willful misfeasance, bad faith or gross negligence on the part of the Operating Advisor or such Controlling Noteholder, as the case may be, agree to take no action against the Operating Advisor, such Controlling Noteholder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Operating Advisor nor such Controlling Noteholder will be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting solely in the interests of the Senior Noteholder or the Junior Noteholder, as applicable.
(c) If the Lead Securitization Noteholder is the Controlling Noteholder, the Junior Noteholder acknowledges and agrees (i) all of the aforementioned rights and obligations
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of the Controlling Noteholder and the Operating Advisor set forth in Section 5(f) and 5(g) and this Section 6 shall be exercisable by the Lead Securitization Noteholder (or the applicable Person specified in the Servicing Agreement) to the extent set forth in the Servicing Agreement and (ii) the Controlling Class Representative may exercise all rights with respect to the Mortgage Loan and any decisions or consents or other powers with respect thereto as are set forth in the Servicing Agreement.
Section 7. Special Servicer. The Controlling Noteholder (or its Operating Advisor), at its expense (including, without limitation, the reasonable costs and expenses of counsel to any third parties and costs and expenses of the terminated Special Servicer), shall have the right to appoint the Special Servicer with respect to the Mortgage Loan. The Controlling Noteholder (or its Operating Advisor) shall be entitled to terminate the rights and obligations of the Special Servicer under the Servicing Agreement, with or without cause, upon at least ten (10) Business Days’ prior notice to the Special Servicer (provided, however, that the Controlling Noteholder, the Operating Advisor and/or the Junior Noteholder shall not be liable for any termination or similar fee in connection with the removal of the Special Servicer in accordance with this Section 7); such termination not be effective unless and until: (A) each Rating Agency delivers Rating Agency Confirmation (to the extent the Mortgage Loan has been securitized); (B) the initial or successor Special Servicer has assumed in writing (from and after the date such successor Special Servicer becomes the Special Servicer) all of the responsibilities, duties and liabilities of the Special Servicer under the Servicing Agreement from and after the date it becomes the Special Servicer as they relate to such Mortgage Loan pursuant to an assumption agreement reasonably satisfactory to the Trustee; and (C) the Trustee shall have received an opinion of counsel reasonably satisfactory to the Trustee to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with the Servicing Agreement, (y) such replacement will be bound by the terms of the Servicing Agreement with respect to such Mortgage Loan and (z) subject to customary qualifications and exceptions, the applicable servicing agreement will be enforceable against such replacement in accordance with its terms. The Lead Securitization Noteholder (or the Servicer on its behalf) shall promptly provide copies to any terminated Special Servicer of the documents referred to in the preceding sentence. Prior to the Securitization, if the Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if not later than thirty (30) days after the Mortgage Loan becomes a Specially Serviced Mortgage Loan the Controlling Noteholder (or its Operating Advisor) elects to replace the Special Servicer, then each Noteholder agrees that no liquidation fees or workout fees shall be payable to the Special Servicer being replaced, unless such Special Servicer shall have either successfully completed a workout or a liquidation, in which case such fees shall be payable as provided herein.
If a Servicer Termination Event on the part of the Special Servicer has occurred that affects a Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Servicing Agreement (or at any time that the Mortgage Loan is no longer subject to the provisions of the Servicing Agreement, the successor servicing
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agreement pursuant to which the Mortgage Loan is being serviced) solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Servicing Agreement (or at any time that the Mortgage Loan is no longer subject to the provisions of the Servicing Agreement, the successor servicing agreement pursuant to which the Mortgage Loan is being serviced). The Controlling Note Holder and the Non-Controlling Note Holders acknowledge and agree that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. The Non-Controlling Note Holder that directs the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) the terminate the Special Servicer shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Collection Account under the Servicing Agreement.
For the avoidance of doubt, in no event will the rights of the Non-Controlling Note Holders set forth in the immediately preceding paragraph in any way limit or diminish the rights of the Controlling Noteholder otherwise set forth in this Section 7.
Section 8. Payment Procedure.
(a) The Lead Securitization Noteholder (or the Servicer on its behalf), in accordance with the priorities set forth in Section 3 or 4, as applicable, and subject to the terms of the Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the Collection Account for the Notes established pursuant to the Servicing Agreement. The Lead Securitization Noteholder (or the Servicer acting on its behalf) shall deposit such amounts to the applicable account on the Business Day next following the date such payment was received by the Lead Securitization Noteholder (or the Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.
(b) If the Lead Securitization Noteholder (or the Servicer on its behalf) determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of the Senior Note or the Junior Note must, pursuant to any insolvency bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Lead Securitization Noteholder, any other Noteholder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Noteholder (or the Servicer on its behalf) shall not be required to distribute any portion thereof to such other Noteholder or the Lead Securitization Noteholder, as applicable, and such other Noteholder will promptly on demand by the Lead Securitization Noteholder (or the Servicer on its behalf) repay to the Lead Securitization Noteholder (or the Servicer on its behalf) any portion thereof that the Lead Securitization Noteholder (or the Servicer on its behalf) shall have theretofore distributed to such other Noteholder together with interest thereon at such rate, if any, as the Lead Securitization Noteholder (or the Servicer on its behalf) shall have been required to pay to any Mortgage Loan Borrower, the Lead Securitization Noteholder, the Master Servicer, the Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Lead Securitization Noteholder (or the Servicer on its behalf) makes any payment to any other Noteholder before the Lead Securitization Noteholder (or the Servicer on its behalf) has received the corresponding payment (it being
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understood that the Lead Securitization Noteholder (or the Servicer on its behalf) is under no obligation to do so), and the Lead Securitization Noteholder (or the Servicer on its behalf) does not receive the corresponding payment within three (3) Business Days of its payment to such other Noteholder, such other Noteholder will, at the Lead Securitization Noteholder’s (or the Servicer’s on its behalf) request, promptly return that payment to the Lead Securitization Noteholder (or the Servicer on its behalf).
(d) Each Noteholder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it will promptly remit such excess to the Lead Securitization Noteholder (or the Servicer on its behalf), who shall allocate such excess in accordance with this Agreement and the Servicing Agreement. The Lead Securitization Noteholder (or the Servicer on its behalf) shall have the right to offset any amounts due hereunder from any other Noteholder with respect to the Mortgage Loan against any future payments due to such other Noteholder under the Mortgage Loan, provided, that the Lead Securitization Noteholder’s and the other Noteholders’ obligations under this Section 8 are separate and distinct obligations from one another and in no event shall Lead Securitization Noteholder (or the Servicer on its behalf) enforce the obligations of the Lead Securitization Noteholder against the other Noteholders or the obligations of the other Noteholders against the Lead Securitization Noteholder. The Noteholders’ obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Noteholders. The Lead Securitization Noteholder (including any Servicer) shall have no liability to the other Noteholders with respect to their respective Notes except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of the Lead Securitization Noteholder. No other Noteholder shall have any liability to the Lead Securitization Noteholder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such other Noteholder.
Each Noteholder acknowledges that, subject to the terms and conditions hereof and the obligation of the Lead Securitization Noteholder (including any Servicer) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Noteholder (including any Servicer) may exercise, or omit to exercise, any rights that the Lead Securitization Noteholder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the other Noteholders and that the Lead Securitization Noteholder (including any Servicer) shall have no liability whatsoever to the other Noteholders in connection with the Lead Securitization Noteholder’s exercise of rights or any omission by the Lead Securitization Noteholder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard, and the Lead Securitization Noteholder shall not be protected against any liability to the other Noteholders that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence.
The Lead Securitization Note Holder and the Non-Lead Securitization Note Holders acknowledge that, subject to the terms and conditions hereof, the Junior Noteholder may exercise, or omit to exercise, any rights that the Junior Noteholder may have under this
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Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the Lead Securitization Note Holder or the Non-Lead Securitization Note Holders and that the Junior Noteholder shall have no liability whatsoever to the Lead Securitization Note Holder or the Non-Lead Securitization Note Holders in connection with the exercise of rights or any omission by the Junior Noteholder to exercise such rights; provided, however, that the Junior Noteholder shall not be protected against any liability to the Lead Securitization Note Holder or the Non-Lead Securitization Note Holders that would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence.
Section 10. Bankruptcy. Subject to the provisions of Section 5(f) hereof, each of the Non-Lead Securitization Note Holders and the Junior Noteholder hereby covenants and agrees that only the Lead Securitization Noteholder (or the Servicer on its behalf) has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Subject to the provisions of Section 5(f) hereof, the each of the Non-Lead Securitization Noteholders and the Junior Noteholder further agrees that only the Lead Securitization Noteholder, as a creditor, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. Each of the Non-Lead Securitization Noteholders and the Junior Noteholder hereby appoints the Lead Securitization Noteholder as its agent, and grants to the Lead Securitization Noteholder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the each of the Non-Lead Securitization Noteholders and Junior Noteholder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. Each of the Non-Lead Securitization Noteholders and the Junior Noteholder in its capacity as such, hereby agrees that, upon the request of the Lead Securitization Noteholder, such Non-Lead Securitization Noteholder or Junior Noteholder, as applicable, shall execute, acknowledge and deliver to the Lead Securitization Noteholder all and every such further deeds, conveyances and instruments as the Lead Securitization Noteholder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.
Section 11. Cure Rights of Controlling Noteholder.
(a) Subject to Section 11(b) below, in the event that the Mortgage Loan Borrower fails to make any payment of principal or interest on the Mortgage Loan by the end of the applicable grace period for such payment permitted under the applicable Mortgage Loan Documents (a “Monetary Default”), the Lead Securitization Noteholder (or its Servicer) shall
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provide notice to the Junior Noteholder (while it is the Controlling Noteholder) and the Operating Advisor (while the Junior Noteholder is the Controlling Noteholder) (in each case, the “Monetary Default Notice”). If the Junior Noteholder (while it is the Controlling Noteholder) or the Operating Advisor (while the Junior Noteholder is the Controlling Noteholder) has not cured such Monetary Default within three (3) Business Days after receiving the Monetary Default Notice, the Lead Securitization Noteholder shall deliver an additional copy of the Monetary Default Notice that contains a statement in boldface font that this is a second notice and that the Junior Noteholder’s or its Operating Advisor’s failure to cure such Monetary Default within five (5) Business Days after receiving such second notice will result in the termination of the right to cure such Monetary Default. The Junior Noteholder (while it is the Controlling Noteholder) shall have the right, but not the obligation, to cure such Monetary Default after receiving the first Monetary Default Notice and until the period ending five (5) Business Days after receiving the second Monetary Default Notice (the “Cure Period”) and at no other times. At the time a payment is made to cure a Monetary Default as permitted hereunder, the Junior Noteholder shall pay or reimburse the Lead Securitization Noteholder for all unreimbursed Advances (whether or not recoverable with respect to the Lead Securitization Note and each Non-Lead Securitization Note, including principal and interest advances made with respect to such Non-Lead Securitization Note under the related Non-Lead Servicing Agreement), Advance Interest Amounts, any unpaid fees to any Servicer specifically provided for in the Securitization Servicing Agreement and any Additional Servicing Expenses. At any time (while the Junior Noteholder is the Controlling Noteholder) during which the Junior Noteholder believes that a Monetary Default has occurred, the Junior Noteholder shall have the right (i) to send a written notice to the Servicer requesting written confirmation as to whether a Monetary Default has occurred and is continuing and, if the Servicer provides any such written confirmation indicating that a Monetary Default has occurred and is continuing, the Junior Noteholder may proceed with exercising its cure rights as set forth herein, and (ii) pending its receipt of any written confirmation described in the foregoing clause (i), to tender a cure payment to the applicable Servicer in the amount it reasonably believes necessary to cure any such potential Monetary Default, which cure payment shall either be (A) in the event a Monetary Default has occurred, retained and applied to the cure of such Monetary Default in accordance with the terms hereof, or (B) in the event that no such Monetary Default has occurred, returned by the applicable Servicer to the Junior Noteholder. If the amount of a cure payment tendered by the Junior Noteholder is less than the amount necessary to effect a cure of a Monetary Default, such payment shall not effect a cure, but Junior Noteholder may effect a cure if it pays any deficiency within the Cure Period. If the amount of a cure payment tendered by the Junior Noteholder exceeds the amount necessary to effect a cure, the applicable Servicer shall return such excess to the Junior Noteholder. The Junior Noteholder (to the extent it is permitted to effect a cure hereunder) shall not be required, in order to effect a cure hereunder, to pay any Default Interest or late charges under the Loan Documents. So long as a Monetary Default exists for which a cure payment permitted hereunder is made, such Monetary Default shall not be treated as an Event of Default by the Lead Securitization Noteholder (including for purposes of (i) the definition of “Sequential Pay Event,” (ii) accelerating the Mortgage Loan, modifying, amending or waiving any provisions of the Mortgage Loan Documents or commencing proceedings for foreclosure or the taking of title by deed-in-lieu of foreclosure or other similar legal proceedings with respect to the Mortgaged Property; or (iii) treating the Mortgage Loan as a Specially Serviced Mortgage Loan); provided that such limitation shall not prevent the Lead Securitization
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Noteholder from collecting Default Interest or late charges from the Mortgage Loan Borrower. Any amounts advanced by the Junior Noteholder (to the extent permitted hereunder) on behalf of the Mortgage Loan Borrower to effect any cure shall be reimbursable to such Noteholder under Section 3 or Section 4, as applicable.
(b) Notwithstanding anything to the contrary contained in Section 11(a), the Junior Noteholder shall be limited to a combined total of six (6) cures of Monetary Defaults, no more than three (3) of which may be consecutive, or Non-Monetary Defaults over the term of the Mortgage Loan. Additional Cure Periods shall only be permitted with the consent of the Lead Securitization Noteholder.
(c) No action taken by the Junior Noteholder in accordance with this Agreement shall excuse performance by the Mortgage Loan Borrower of its obligations under the Mortgage Loan Documents and the Lead Securitization Noteholder’s and the Non-Lead Securitization Noteholders’ rights under the Mortgage Loan Documents shall not be waived or prejudiced by virtue of the Junior Noteholder’s actions under this Agreement. Subject to the terms of this Agreement, the Junior Noteholder shall be subrogated to the Lead Securitization Noteholder’s and the Non-Lead Securitization Noteholders’ rights to any payment owing to the Lead Securitization Noteholder and the Non-Lead Securitization Noteholders for which the Junior Noteholder makes a cure payment as permitted under this Section 11 but such subrogation rights may not be exercised against the Mortgage Loan Borrower until 91 days after the Note is paid in full.
(d) If an Event of Default (other than a Monetary Default) occurs and is continuing under the Mortgage Loan Documents (a “Non-Monetary Default”), the Lead Securitization Noteholder shall promptly provide notice to the Controlling Noteholder and the Operating Advisor of such failure (the “Non-Monetary Default Notice”) and the Controlling Noteholder shall have the right, but not the obligation, to cure such Non-Monetary Default within the same period of time as the Mortgage Loan Borrower under the Mortgage Loan Documents, without regard for the date of receipt by the Controlling Noteholder of the Non-Monetary Default Notice, or in any event, up to 40 days, to cure such Non-Monetary Default; provided, however, if such Non-Monetary Default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being diligently pursued by the Controlling Noteholder, the Controlling Noteholder shall be given an additional period of time as is reasonably necessary to enable the Controlling Noteholder in the exercise of due diligence to cure such Non-Monetary Default for so long as (i) the Controlling Noteholder diligently and expeditiously proceeds to cure such Non-Monetary Default, (ii) the Controlling Noteholder makes all cure payments that it is permitted to make in accordance with the terms and provisions of Section 11(a) hereof, (iii) such additional period of time does not exceed sixty (60) days, (iv) such Non-Monetary Default is not caused by an Insolvency Proceeding or during such period of time that the Controlling Noteholder has to cure a Non-Monetary Default in accordance with this Section 11(d) (the “Non-Monetary Default Cure Period”), an Insolvency Proceeding does not occur and (v) during such Non-Monetary Default Cure Period, there is no material adverse effect on the Mortgage Loan Borrower or the Mortgaged Property or the value of the Mortgage Loan as a result of such Non-Monetary Default or the attempted cure. The Non-Monetary Default Notice shall contain a statement in boldface font that the Controlling Noteholder’s or the Operating Advisor’s failure to cure such Non-
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Monetary Default within the applicable Non-Monetary Default Cure Period after receiving such notice will result in the termination of the right to cure such Non-Monetary Default. The Controlling Noteholder shall not contact the Mortgage Loan Borrower in order to effect any cures under Sections 11(a) or this 11(d) unless it is in conjunction with the Special Servicer or the Controlling Noteholder has obtained the prior written consent of the Lead Securitization Noteholder.
Section 12. Purchase of Senior Note By Junior Noteholder. The Junior Noteholder shall have the right, by written notice to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder (a “Noteholder Purchase Notice”), delivered at any time an Event of Default under the Mortgage Loan has occurred and is continuing, to purchase, in immediately available funds, Note A-1, Note A-2, Note A-3-1 and Note A-3-2 in whole but not in part at the applicable Defaulted Mortgage Loan Purchase Price. For the avoidance of doubt, if the Junior Noteholder elects to exercise its right to purchase a Note pursuant to this Section 12, it must purchase each of Note A-1, Note A-2, Note A-3-1 and Note A-3-2. Upon the delivery of the Noteholder Purchase Notice to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder, each such Noteholder shall sell (and the Junior Noteholder shall purchase) Note A-1, Note A-2, Note A-3-1 or Note A-3-2, as applicable (including, without limitation, any interests therein) at the applicable Defaulted Mortgage Loan Purchase Price, on a date (the “Defaulted Note Purchase Date”) not less than ten (10) and not more than thirty (30) days after the date of receipt of the Noteholder Purchase Notice, as shall be established by the Lead Securitization Noteholder. The Noteholder Purchase Notice shall contain a statement in boldface font that the Junior Noteholder’s failure to purchase Note A-1, Note A-2, Note A-3-1 and Note A-3-2 on a Defaulted Note Purchase Date will result in the termination of such right. The Junior Noteholder agrees that the sale of Note A-1, Note A-2, Note A-3-1 and Note A-3-2 shall comply with all requirements of the Servicing Agreement and that all costs and expenses related thereto shall be paid by the Junior Noteholder. The Defaulted Mortgage Loan Purchase Price shall be calculated by the Lead Securitization Noteholder (or the Servicer on its behalf) three (3) Business Days prior to the Defaulted Note Purchase Date (and such calculation shall be accompanied by a listing of all amounts included in the Defaulted Mortgage Loan Purchase Price), and shall, absent manifest error, be binding upon the Junior Noteholder. Concurrently with the payment to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder in immediately available funds of its respective portion of the applicable Defaulted Mortgage Loan Purchase Price, each of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder will execute at the sole cost and expense of the Junior Noteholder in favor of the Junior Noteholder assignment documentation which will assign Note A-1, Note A-2, Note A-3-1 or Note A-3-2, as applicable, and the Mortgage Loan Documents without recourse, representations or warranties (except the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder, as applicable, shall represent and warrant that it had good and marketable title to, was the sole owner and holder of, and had power and authority to deliver Note A-1, Note A-2, Note A-3-1 or Note A-3-2, as applicable, free and clear of all liens and encumbrances (other than the interest of the other Noteholders pursuant to this Agreement)). The right of the Junior Noteholder to purchase Note A-1, Note A-2, Note A-3-1 and Note A-3-2 shall automatically terminate upon a foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure with respect to the Mortgaged Property (and the Lead Securitization Noteholder shall give the Junior Noteholder ten (10) days notice of its intent with respect to such action).
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Notwithstanding the foregoing sentence, if title to the Mortgaged Property is transferred to the Servicer (or other nominee on behalf of the Noteholders) less than ten (10) days after the acceleration of the Mortgage Loan, the Lead Securitization Noteholder shall notify the Junior Noteholder of such transfer and the Junior Noteholder shall have a fifteen (15) day period from the date of such notice from the Lead Securitization Noteholder to deliver the Noteholder Purchase Notice to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder, in which case the Junior Noteholder will be obligated to purchase the Mortgaged Property, in immediately available funds, within such fifteen (15) day period at the applicable Defaulted Mortgage Loan Purchase Price.
Section 13. Representations of Junior Noteholder. The Junior Noteholder represents, and it is specifically understood and agreed, that it is acquiring its Junior Note for its own account in the ordinary course of its business and the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder shall otherwise have no liability or responsibility to the Junior Noteholder except as expressly provided herein or for actions that are taken or omitted to be taken by the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder that constitute gross negligence or willful misconduct or that constitute a breach of this Agreement. The Junior Noteholder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene its charter or any law or contractual restriction binding upon the Junior Noteholder, and that this Agreement is the legal, valid and binding obligation of the Junior Noteholder enforceable against the Junior Noteholder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. The Junior Noteholder represents and warrants that it is duly organized, validly existing, in good standing and possesses of all licenses and authorizations necessary to carry on its business. The Junior Noteholder represents and warrants that (a) this Agreement has been duly executed and delivered by the Junior Noteholder, (b) to the Junior Noteholder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Junior Noteholder have been obtained or made and (c) to the Junior Noteholder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against the Junior Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
The Junior Noteholder acknowledges that the Note A-1 Holder, the Note A-2 Holder and each Note A-3 Holder do not owe the Junior Noteholder any fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as provided herein, need not consult with the Junior Noteholder with respect to any action taken by the Note A-1 Holder, the Note A-2 Holder and such Note A-3 Holder in connection with the Mortgage Loan.
The Junior Noteholder expressly and irrevocably waives for itself and any Person claiming through or under the Junior Noteholder any and all rights that it may have under Section 1315 of the New York Real Property Actions and Proceedings Law or the provisions of
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any similar law which purports to give a junior loan Noteholder the right to initiate any loan enforcement or foreclosure proceedings.
Section 14. Representations of the Senior Noteholder. The Senior Noteholder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Senior Noteholder’s charter or any law or contractual restriction binding upon such Senior Noteholder, and that this Agreement is the legal, valid and binding obligation of the Initial Senior Noteholder enforceable against the Initial Senior Noteholder in accordance with its terms. Each Senior Noteholder represents and warrants that it is duly organized, validly existing, in good standing and possession of all licenses and authorizations necessary to carry on its business. Each Senior Noteholder represents and warrants that (a) this Agreement has been duly executed and delivered by the Initial Senior Noteholder, (b) to such Senior Noteholder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Initial Senior Noteholder has been obtained or made and (c) to such Senior Noteholder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Senior Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
Section 15. Independent Analysis of the Junior Noteholder. The Junior Noteholder acknowledges that it has, independently and without reliance upon the Senior Noteholder, except with respect to the representations and warranties provided by the Senior Noteholder herein, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to purchase the Junior Note and the Junior Noteholder accepts responsibility therefor. The Junior Noteholder hereby acknowledges that, other than the representations and warranties provided herein, the Senior Noteholder has made no representations or warranties with respect to the Mortgage Loan, subject to such representations and warranties as provided by the Senior Noteholder herein, and that the Senior Noteholder shall have no responsibility for (i) the collectibility of the Mortgage Loan, (ii) the validity, enforceability or legal effect of any of the Mortgage Loan Documents or the title insurance policy or policies or any survey furnished or to be furnished to the Senior Noteholder in connection with the origination of the Mortgage Loan, (iii) the validity, sufficiency or effectiveness of the lien created or to be created by the Mortgage Loan Documents, or (iv) the financial condition of the Mortgage Loan Borrower. The Junior Noteholder assumes all risk of loss in connection with the Junior Note except as specifically set forth herein, and the Senior Noteholder assumes all risk of loss in connection with the Senior Note except as specifically set forth herein.
Section 16. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby among any of the Noteholders as a partnership, association, joint venture or other entity. The Senior Noteholder shall have no obligation whatsoever to offer to the Junior Noteholder the opportunity to purchase a Note interest in any future loans originated by the Senior Noteholder or its Affiliates and if the Senior Noteholder chooses to offer to the Junior Noteholder the opportunity to purchase a Note interest in any future mortgage loans originated by the Senior Noteholder or its Affiliates, such offer shall be at
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such purchase price and interest rate as the Senior Noteholder chooses, in its sole and absolute discretion. The Junior Noteholder shall not have any obligation whatsoever to purchase from the Senior Noteholder a Note interest in any future loans originated by the Senior Noteholder or its Affiliates.
Section 17. Not a Security. The Junior Note shall not be deemed to be a security within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934.
Section 18. Other Business Activities of the Noteholders. The Junior Noteholder acknowledges that the Senior Noteholder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any direct or indirect parent or Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any Affiliate thereof or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower, any principal thereof or any Affiliate thereof (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 19. Sale of the Junior Note and the Senior Note.
(a) The Junior Noteholder agrees that it will not Transfer all or any portion of the Junior Note without the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided, that (i) the Junior Noteholder shall have the right to Transfer its respective Note, or any portion thereof, to a Qualified Institutional Lender without obtaining the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s prior written consent, provided, that promptly after the Transfer, the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder are provided with (x) a representation from a transferee or the Junior Noteholder certifying that such transferee is a Qualified Institutional Lender, (y) a copy of the assignment and assumption agreement referred to in Section 20 and (z) such transfer would not cause the Junior Note to be held by more than five persons nor cause there to be no one person owning a majority of the Junior Note and (ii) if the Junior Noteholder wants to Transfer the Junior Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender after a Securitization, no consent of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder shall be required, but the Junior Noteholder shall first obtain (and deliver to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder) Rating Agency Confirmation. If the Junior Note is held by more than one Junior Noteholder at any time, the holders of a majority of the Principal Balance of the Junior Note shall immediately appoint a representative to exercise all rights of the Junior Note hereunder. Notwithstanding the foregoing, without the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s prior consent, which may be withheld in the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s sole discretion, the Junior Noteholder shall not Transfer all or any portion of the Junior Note to the Mortgage Loan
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Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The Junior Noteholder agrees it will pay the reasonable documented expenses of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder (including all expenses of the Master Servicer and the Special Servicer) in connection with any such Transfer by the Junior Noteholder. The Agent shall provide two (2) Business Days prior written notice to each Rating Agency of any Transfer.
(b) Notwithstanding the foregoing, the Junior Noteholder shall have the right, without the need to obtain the consent of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder or any other Person, to Transfer 49% or less (in the aggregate) of its interest in the Junior Note to a Person that has no direct rights with respect to the Junior Note or to a Qualified Institutional Lender; provided that any such Transfer shall be made in accordance with the terms of this Section 19; provided, further that the Junior Noteholder shall not Transfer all or any portion of the Junior Note to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be void ab initio, absolutely null and void and shall vest no rights in the purported transferee. All Transfers under Section 19(a) and (b) shall be made upon written notice to the Senior Noteholder not later than the date of such Transfer, and each transferee shall (i) execute an assignment and assumption agreement whereby such transferee assumes all or a ratable portion, as the case may be, of the obligations of the Junior Noteholder hereunder with respect to the Junior Note from and after the date of such assignment (or, in the case, of a pledge, collateral assignment or other encumbrance made in accordance with Section 19(e) by the Junior Noteholder of the Junior Note solely as security for a loan to the Junior Noteholder made by a third-party lender whereby the Junior Noteholder remains fully liable under this Agreement, on or before the date on which such lender succeeds to the rights of the Junior Noteholder by foreclosure or otherwise, such third-party lender executes an agreement that such lender shall be bound by the terms and provisions of this Agreement and the obligations of the Junior Noteholder hereunder) and (ii) agree in writing to be bound by the Servicing Agreement, unless the Servicing Agreement is not then in effect with respect to the Mortgage Loan, in which event the parties will enter into or agree to be bound by any replacement servicing agreement therefor in accordance with the provisions hereof. Upon the consummation of a Transfer of all or any portion of the Junior Note in accordance with this Agreement, the transferring Person shall be released from all liability arising under this Agreement with respect to the Junior Note (or the portion thereof that was the subject of such Transfer), for the period after the effective date of such Transfer (it being understood and agreed that the foregoing release shall not apply in the case of a sale, assignment, transfer or other disposition of a participation interest in the Junior Note as described in clause (c) below). In connection with any such permitted transfer of a portion of the Junior Note and for all purposes of this Agreement, the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder need only recognize the majority holder of the Junior Note for purposes of notices, consents and other communications between the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and the Junior Noteholder, such majority holder of the Junior Note shall be the only Person authorized hereunder to exercise any rights of the Junior Noteholder under this Agreement; provided, however, that the majority holder of the Junior Note may from time to time designate any other Person as an additional party entitled to receive notices, consents and other communications and/or to exercise rights on behalf of the Junior Noteholder hereunder by delivering written notice thereof to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the
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Note A-3-2 Holder, and, from and after delivery of such notice, such designee shall be so authorized hereunder and shall be the only party entitled to receive such notices, consents and such other communications and/or to exercise such rights; provided, further, that in the absence of any such designation and notice (which notice shall provide the name, mailing address, email address, telephone number and facsimile number), the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder shall be entitled to treat the last party as to which it has received written notice with respect to the Junior Note as being such designee as the Junior Noteholder for all purposes of this Agreement (including, without limitation, Section 5(f) hereof).
(c) In the case of any sale, assignment, transfer or other disposition of a participation interest in a Note, (i) such Noteholder’s obligations under this Agreement shall remain unchanged, (ii) such Noteholder shall remain solely responsible for the performance of such obligations, (iii) the other Noteholder and any Persons acting on its behalf shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and the Servicing Agreement, and (iv) all amounts payable hereunder shall be determined as if such Noteholder had not sold such participation interest; provided, however, that if the applicable participant is a Qualified Institutional Lender (and delivers to the other Noteholder a certification from an authorized officer confirming its status as a Qualified Institutional Lender), such Noteholder, by written notice to the other Noteholder, may delegate to such participant such Noteholder’s right to exercise the rights of the Controlling Noteholder hereunder and under the Servicing Agreement; provided, further, however, that upon the occurrence of a Control Appraisal Period with respect to the Junior Note, the aforesaid delegation of rights shall terminate and be of no further force and effect.
(d) Each Senior Noteholder agrees that it will not Transfer all or any portion of any of Note A-1, Note A-2, Note A-3-1 or Note A-3-2 except to a Qualified Institutional Lender. If a Senior Noteholder intends to Transfer its respective Note, or any portion thereof, to a Person that is not a Qualified Institutional Lender, it must first obtain the consent of each other Senior Noteholder and, if any such non-transferring Senior Noteholder’s Note is held in a Securitization Trust, a Rating Agency Confirmation with respect to the related Securitization. Notwithstanding the foregoing, without each non-transferring Noteholder’s prior consent, and, if any such non-transferring Senior Noteholder’s Note is held in a Securitization Trust, without a Rating Agency Confirmation with respect to the related Securitization, no Senior Noteholder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Senior Noteholder agrees that it shall pay the expenses of each non-transferring Senior Noteholder (including all expenses of each applicable Master Servicer, the Special Servicer and the Trustee) and all expenses relating to each applicable Rating Agency Confirmation with any such Transfer. Notwithstanding the foregoing, each Senior Noteholder shall have the right, without the need to obtain the consent of any other Senior Noteholder or any other Person or any Rating Agency Confirmation, to Transfer 49% or less (in the aggregate) of its beneficial interest in its Note to a Person which is not the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party. None of the provisions of this Section 19(d) shall apply in the case of (i) a sale of the Senior Note in accordance with the terms and conditions of the
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Securitization Servicing Agreement or (ii) any issuance of certificates in connection with any Securitization or any sale of such certificates.
(e) Notwithstanding any other provision hereof, any Noteholder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit or repurchase facility to such Noteholder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Note Pledgee”), on terms and conditions set forth in this Section 19(e), it being further agreed that a financing provided by a Note Pledgee to a Noteholder or any person which Controls such Noteholder that is secured by such Noteholder’s interest in the applicable Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without (a) prior to Securitization, the consent of each other Noteholder and, (b) after Securitization, Rating Agency Confirmation. Upon written notice by the applicable Noteholder to the other Noteholders and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each of the other holders agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Noteholder in respect of its obligations under this Agreement of which default such Noteholder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Noteholder in respect of its obligations to the other Noteholder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Noteholder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Noteholder and accept any cure thereof by such Note Pledgee which such pledging Noteholder has the right (but not the obligation) to effect hereunder, as if such cure were made by such pledging Noteholder; (v) that such other Noteholder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Noteholder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Noteholders and any Servicer by such Note Pledgee that the pledging Noteholder is in default, beyond any applicable cure periods, under the pledging Noteholder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Noteholder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Noteholder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Noteholder or Servicer would otherwise be obligated to pay to the pledging Noteholder from time to time pursuant to this Agreement or any Servicing Agreement. Any pledging Noteholder hereby unconditionally and absolutely releases the other Noteholders and any Servicer from any liability to the pledging Noteholder on account of any Noteholder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or any such other Noteholder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Noteholder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Noteholders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a
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Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Noteholder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Noteholder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 19(e) shall remain effective as to any Noteholder (and any Servicer) unless and until such Note Pledgee shall have notified any such Noteholder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(f) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Noteholder then such Noteholder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) The loan (the “Conduit Inventory Loan”) made by the Conduit to such Noteholder to finance the acquisition and holding of its Note will require a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) The Conduit Credit Enhancer and conduit manager (if Moody’s rates the Securitization) will be a Qualified Institutional Lender;
(iii) Such Noteholder will pledge (or sell, transfer or assign as part of a repurchase facility) its interest in the applicable Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) The Conduit Credit Enhancer and the Conduit will agree that, if such Noteholder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Noteholder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Noteholder’s Note to the Conduit Credit Enhancer; and
(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not, without obtaining the consent of each other Noteholder, have any greater right to acquire the interests in the Note pledged by such Noteholder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
Section 20. Registration of Transfer. In connection with any Transfer of a Note (but excluding any Note Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement whereby such transferee assumes all of the obligations of the applicable Noteholder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the restriction on Transfers set forth in Section 19, from and after the date of such assignment. Notwithstanding the preceding sentence, a Trustee shall not be required to execute an assignment and assumption agreement in
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connection with any Transfer of a Note if the obligations are assumed pursuant to the Securitization Servicing Agreement. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 19 and this Section 20. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Noteholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and any other Noteholder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement. Upon a Securitization of the Lead Securitization Note, the Certificate Administrator (or if there is no Certificate Administrator, the Trustee) shall automatically become and be the Agent.
Section 21. Registration of the Note A-1, Note A-2, Note A-3 and the Junior Note. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial Note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in Section 20, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement, except in the case of the Initial Note A-1 Holder, the Initial Note A-2 Holder, the Initial Note A-3 Holder and the Initial Junior Noteholder who may hold their Notes through a nominee. Upon request of a Noteholder, the Agent shall provide such party with the names and addresses of the Noteholders. To the extent another party is appointed as Agent hereunder, the Note A-1 Holder, the Note A-2 Holder, each Note A-3 Holder and the Junior Noteholder hereby designates such Person as its agent under this Section 21 solely for purposes of maintaining the Note Register.
Section 22. Statement of Intent. The Agent and each Noteholder intend that the Notes be classified and maintained as a grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code that is a fixed investment trust within the meaning of Treasury Regulation §301.7701-4(c), and the parties will not take any action inconsistent with such classification. It is neither the purpose nor the intent of this Agreement to create a partnership, joint venture, “taxable mortgage pool” or association taxable as a corporation among the parties.
Section 23. No Pledge. This Agreement shall not be deemed to represent a pledge of any interest in any Mortgage Loan by the Senior Noteholder to the Junior Noteholder. Except as otherwise provided in this Agreement and the Servicing Agreement, the Junior Noteholder shall not have any interest in any property taken as security for any Mortgage Loan, provided, however, that if any such property or the proceeds of any sale, lease or other disposition thereof shall be received, then the Junior Noteholder shall be entitled to receive its share of such application in accordance with the terms of this Agreement and/or the Servicing Agreement.
Section 24. Cooperation in Securitization.
(a) At the request of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder or the Note A-3-2 Holder, the Junior Noteholder shall use reasonable efforts,
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at the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s or the Note A-3-2 Holder’s expense, to satisfy, and to cooperate with the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder customarily adhere or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to reasonably cooperate with the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect the Securitization; provided, however, that either in connection with the initial Securitization or otherwise at any time prior to such initial Securitization the Junior Noteholder shall not be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments, the Junior Noteholder or (ii) materially increase the Junior Noteholder’s obligations or materially decrease the Junior Noteholder’s rights, remedies or protections. In connection with the Securitization, the Junior Noteholder agrees to provide for inclusion in any disclosure document relating to the related Securitization such information concerning the Junior Noteholder and the Junior Note as the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder reasonably determine to be necessary or appropriate, and the Junior Noteholder covenants and agrees that it shall reasonably cooperate with the reasonable requests of each Rating Agency and the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1- Holder and the Note A-3-2 Holder in connection with any Securitization, as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to it and the Junior Note in any Securitization document. The Junior Noteholder acknowledges that the information provided by it to the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder may be incorporated into the offering documents for a Securitization. The Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, the Junior Noteholder.
(b) Each of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder and the Note A-3-2 Holder may, at its election, deliver to the Junior Noteholder drafts of the preliminary and final Securitization offering memorandum, prospectus supplement, free writing prospectus and any other disclosure documents and the Securitization Servicing Agreement at such time as the Junior Noteholder deems necessary or appropriate in connection with the Securitization of the related Note A-1, Note A-2, Note A-3-1 or Note A-3-2. The Junior Noteholder may, at its election, review and comment thereon insofar as it relates to the Junior Note and/or the Junior Noteholder, and, if the Junior Noteholder elects to review and comment, the Junior Noteholder shall review and comment thereon as soon as possible but in no event later than five (5) Business Days of its receipt thereof, or six (6) Business Days after receipt in the case of the first draft thereof delivered to the Junior Noteholder, and if the Junior Noteholder fails to respond within such time, the Junior Noteholder shall be deemed to have elected to not comment thereon, provided that if the Junior Noteholder elects to review and comment, any such
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review and comments with respect to the final draft distributed in connection with the preparation of the preliminary and final offering memoranda for printing shall be made no later than 9:00 am, New York City time, on the Business Day following its receipt thereof and if the Junior Noteholder fails to respond by such time, the Junior Noteholder shall be deemed to have elected to not comment thereon. In the event of any disagreement between the Junior Noteholder with respect to the preliminary and final offering memorandum, prospectus supplement, free writing prospectus or any other disclosure documents the Note A-1 Holder’s, the Note A-2 Holder’s, the Note A-3-1 Holder’s and the Note A-3-2 Holder’s determination shall control. The Junior Noteholder has no obligation and shall have no liability with respect to any such offering documents other than the accuracy of any comments it elects to make regarding itself or the Junior Note.
(c) Notwithstanding anything herein to the contrary, the Note A-1 Holder, the Note A-2 Holder and each Note A-3 Holder acknowledge and agree that (i) the Junior Noteholder shall not be required to incur any out-of-pocket expenses in connection with a Securitization of Note A-1, Note A-2 or either Note A-3 or any portion thereof and (ii) the Junior Noteholder shall not be required to disclose any of the beneficial owners of the managed account on behalf of which it is holding the Junior Note.
Section 25. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 26. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
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(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 27. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto (other than as set forth in Section 5(b)). The Agent shall provide two (2) Business Days prior written notice to each Rating Agency of any material modification to this Agreement.
Section 28. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Except as provided herein, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 19, each Noteholder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the Note A-1 Holder, the Note A-2 Holder, the Note A-3-1 Holder, the Note A-3-2 Holder or the Junior Noteholder, as applicable, hereunder, including, without limitation, the right to make further assignments and grant additional Notes.
Section 29. Counterparts; Facsimile Execution.
(a) The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words of like import in any document executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided, that, notwithstanding anything contained herein to the contrary, the parties hereto are under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the parties hereto pursuant to procedures approved by the parties hereto; provided, further, that, without limiting the foregoing, upon the request of the either party hereto, any electronic signature shall be promptly followed by such manually executed counterpart.
(b) This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This
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Agreement shall become effective when it shall have been executed by the parties hereto and when the parties hereto shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of this Agreement, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
Section 30. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 31. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 32. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 33. Withholding Taxes.
(a) If the Lead Securitization Noteholder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to another Noteholder with respect to the Mortgage Loan as a result of such other Noteholder constituting a Non-Exempt Person, the Lead Securitization Noteholder, in its capacity as servicer, shall be entitled to do so with respect to such other Noteholder’s interest in such payment (all withheld amounts being deemed paid to such other Noteholder), provided that the Lead Securitization Noteholder shall furnish such other Noteholder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such other Noteholder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such other Noteholder is subject to tax.
(b) Each other Noteholder shall and hereby agrees to indemnify the Lead Securitization Noteholder against and hold the Lead Securitization Noteholder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Noteholder (or the Servicer on its behalf) to withhold Taxes from payment made to such other Noteholder in reliance upon any representation, certificate, statement, document or instrument made or provided by such other Noteholder to the Lead Securitization Noteholder in connection with the obligation of the Lead
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Securitization Noteholder to withhold Taxes from payments made to such other Noteholder, it being expressly understood and agreed that (i) the Lead Securitization Noteholder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such other Noteholder shall, upon request of the Lead Securitization Noteholder and at its sole cost and expense, defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Noteholder.
(c) Each other Noteholder represents to the Lead Securitization Noteholder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Noteholder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each other Noteholder shall deliver to the Lead Securitization Noteholder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Noteholder substantiating that such other Noteholder is not a Non-Exempt Person and that the Lead Securitization Noteholder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Noteholder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Noteholder an Internal Revenue Service Form W-9 and (ii) if a Noteholder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Noteholder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Noteholder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN, or successor forms, as may be required from time to time, duly executed by such Noteholder, as evidence of such Noteholder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Noteholder shall not be obligated to make any payment hereunder to a Noteholder in respect of its Note or otherwise until such Noteholder shall have furnished to the Lead Securitization Noteholder the requested forms, certificates, statements or documents.
Section 34. Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than the Junior Note and the Non-Lead Securitization Note) shall be held by the Lead Securitization Noteholder (or a custodian acting on behalf of the Lead Securitization Noteholder) on behalf of the registered holders of the Notes.
Section 35. Servicing of the Loan. Pursuant to the Servicing Agreement, the Master Servicer (whose identity may change from time to time as provided in the Servicing Agreement) will be appointed as the servicer of the Mortgage Loan and the Special Servicer will be appointed as the special servicer of the Mortgage Loan, and the parties agree that the Master Servicer and Special Servicer will service the Mortgage Loan on behalf of the Senior Noteholder and the Junior Noteholder pursuant to the Servicing Agreement and subject to the terms hereof.
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Section 36. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
All notices and reports (including, without limitation, Asset Status Reports) required to be delivered hereunder by the Lead Securitization Noteholder (or the Servicer on its behalf) to the Controlling Noteholder (or its Operating Advisor), or by the Controlling Noteholder (or its Operating Advisor) to the Lead Securitization Noteholder (or the Servicer on its behalf), shall also be delivered by the applicable party to the Junior Noteholder.
Section 37. Broker. The Junior Noteholder and the Senior Noteholder represent to each other that no broker was responsible for bringing about this transaction.
Section 38. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20; and
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder.
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Section 39. Termination of Agent. The Agent may be terminated at any time upon ten (10) days prior written notice from the Note A-1 Holder. In the event that the Agent is terminated pursuant to this Section 39, all of its rights and obligations under this Agreement shall be terminated, other than any rights or obligations that accrued prior to the date of such termination.
The Agent may resign at any time upon notice, so long as a successor Agent, reasonably satisfactory to the Noteholders, has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. UBS Real Estate Securities Inc., as Initial Agent, may transfer its rights and obligations to the Servicer, as successor Agent, at any time without the consent of any Noteholder. UBS Real Estate Securities Inc., as Initial Agent, shall promptly and diligently attempt to cause such Servicer to act as successor Agent, and, if such Servicer declines to act in such capacity, shall promptly and diligently attempt to cause a similar servicer to act as successor Agent. The termination or resignation of such Servicer, as Servicer under the Servicing Agreement, shall be deemed a termination or resignation of such Servicer as Agent under this Agreement. Notwithstanding anything to the contrary in this Agreement, upon a Securitization of the Senior Note or any portion thereof, the Certificate Administrator (or the Trustee, as applicable) shall automatically become and be the Agent.
Section 40. Resizing. Notwithstanding any other provision of this Agreement, for so long as UBS Real Estate Securities Inc. or an affiliate thereof (a “Securitizing/Resizing Entity”) is the owner of any Senior Note, such Securitizing/Resizing Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of any Senior Note to such New Notes; or severing a Senior Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Senior Note; provided, that (i) the aggregate principal balance of all outstanding New Notes following any such amendment is no greater than the aggregate principal amount of the applicable Senior Note prior to such amendment, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes and such reallocated or component notes shall be automatically subject to the terms of this Agreement, and (iv) the Securitizing/Resizing Entity holding the New Notes shall notify the Controlling Noteholder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts. In connection with the foregoing (provided the conditions set forth in clauses (i) through (iv) above are satisfied, with respect to (i) through (iv), as certified by the Securitizing/Resizing Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.
WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee, for the benefit of the Holders of CSAIL 2015-C3 Mortgage Trust Commercial Mortgage Pass-Through Certificates, as Note A-1 Holder and Note A-2 Holder | ||
By: | Midland Loan Services, a division of PNC Bank, National Association, Master Servicer and Attorney-in-Fact |
By: | /s/ Alan H. Torgler | ||
Name: Alan H. Torgler | |||
Title: Vice President Servicing Officer |
UBS REAL ESTATE SECURITIES INC., as Note A-3-1 Holder and Note A-3-2 Holder | ||||
By: | ||||
Name: Title: | ||||
By: | ||||
Name: Title: | ||||
PRIMA MORTGAGE INVESTMENT TRUST, LLC, as Junior Noteholder | ||||
By: | Prime Capital Advisors LLC, a New York limited liability company, as authorized Agent | |||
By: | ||||
Name: Title: |
UBS REAL ESTATE SECURITIES INC., as Note A-3-1 Holder and Note A-3-2 Holder | |||
By: | /s/ Nicholas Galeone | ||
Name: Nicholas Galeone | |||
Title: Executive Director |
By: | /s/ Racquel A.C. Small | ||
Name: Racquel A.C. Small Title: Executive Director |
[signatures continue on following page]
PRIMA MORTGAGE INVESTMENT TRUST, LLC, as Junior Noteholder | ||
By: | Prima Capital Advisors LLC, a New York limited liability company, as Authorized Agent |
By: | /s/ Nilesh Patel | ||
Name: Nilesh Patel Title: Managing Director |
EXHIBIT
A
MORTGAGE LOAN SCHEDULE
A. Description of Mortgage Loan:
Mortgage Loan: | Loan Agreement, dated as of July 7, 2015, between UBS Real Estate Securities Inc., as Lender, and the Mortgage Loan Borrower, as amended by the First Amendment to Loan Agreement and Omnibus Amendment to Loan Documents, effective as of July 7, 2015 and the Second Amendment to Loan Agreement and Omnibus Amendment to Loan Documents, effective as of July 7, 2015 |
Mortgage Loan Borrower: | DMP CR Plaza, LLC |
Date of the Mortgage Loan and the Mortgage: | July 7, 2015 |
Initial Principal Amount of Mortgage Loan: | $245,000,000.00 |
Location of Mortgaged Property: | Boston, Massachusetts |
Initial Maturity Date: | April 6, 2029 |
B. Description of Note Interests:
Initial Senior Note Principal Balance: | $211,000,000.00 |
Initial Junior Note Principal Balance: | $34,000,000.00 |
Initial Senior Note Percentage Interest: | 86.12% |
Initial Junior Note Percentage Interest: | 13.88% |
EXHIBIT B
Note A-1 Holder and Note A-2 Holder:
[Address to be provided by Servicer]
Note A-3-1 Holder and Note A-3-2 Holder:
UBS
Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: David Schell
Email:
david.schell@ubs.com
Facsimile No.: 212-821-2484
Telephone No.: 212-713-3375
with a copy to:
Chad Eisenberger, Esq.
UBS Securities LLC
299 Park Avenue
New
York, New York 10171
Email: chad.eisenberger@ubs.com
Telephone No.: 212-821-4885
B-2 |
Junior Noteholder:
Prima
Mortgage Investment Trust, LLC
c/o Prima Capital Advisors LLC
2 Overhill Road, Suite 215
Scarsdale, New York 10583
Attention: Nilesh Patel
Facsimile No.: (914) 725-9385
Phone: (914) 725-2657
email: npatel@primaadvisors.com
B-3 |
EXHIBIT
C
PERMITTED FUND MANAGERS
1. Apollo Global Real Estate
2. Archon Capital, L.P.
3. AREA Property Partners
4. BlackRock, Inc.
5. The Blackstone Group International Ltd.
6. Capital Trust, Inc.
7. Clarion Partners
8. Colony Capital, Inc.
9. DLJ Real Estate Capital Partners
10. Eightfold Real Estate Capital, L.P.
11. Fortress Investment Group LLC
12. Garrison Investment Group
13. Goldman, Sachs & Co.
14. iStar Financial Inc.
15. J.E. Roberts Companies
16. Lend-Lease Real Estate Investments
17. LoanCore Capital
18. Lonestar Funds
19. Praedium Group
20. Raith Capital Partners, LLC
21. Rialto Capital Management, LLC
22. Rockpoint Group
23. Starwood Capital/Starwood Financial Trust
24. Torchlight Investors
25. Walton Street Capital, LLC
26. Westbrook Partners
27. WestRiver Capital
28. Whitehall Street Real Estate Fund, L.P.
29. Square Mile Capital Management LLC
30. USAA Real Estate Company
31. Prima Capital Advisors LLC
C-1 |
Exhibit 4.5
EXECUTION VERSION
AGREEMENT BETWEEN NOTE HOLDERS
Dated as of September 3, 2015
by and between
BANK
OF AMERICA, N.A.
(Initial Note A-1 Holder)
and
BANK
OF AMERICA, N.A.
(Initial Note A-2 Holder)
261 Fifth Avenue Loan
TABLE OF CONTENTS
Page | |||
Section 1. | Definitions | 2 | |
Section 2. | Servicing of the Mortgage Loan | 15 | |
Section 3. | Priority of Payments | 21 | |
Section 4. | Workout | 22 | |
Section 5. | Administration of the Mortgage Loan | 23 | |
Section 6. | Rights of the Controlling Note Holder | 27 | |
Section 7. | Appointment of Special Servicer | 30 | |
Section 8. | Payment Procedure | 31 | |
Section 9. | Limitation on Liability of the Note Holders | 32 | |
Section 10. | Bankruptcy | 32 | |
Section 11. | Representations of the Note Holders | 33 | |
Section 12. | No Creation of a Partnership or Exclusive Purchase Right | 33 | |
Section 13. | Other Business Activities of the Note Holders | 33 | |
Section 14. | Sale of the Notes | 34 | |
Section 15. | Registration of the Notes and Each Note Holder | 37 | |
Section 16. | Governing Law; Waiver of Jury Trial | 37 | |
Section 17. | Submission To Jurisdiction; Waivers | 38 | |
Section 18. | Modifications | 38 | |
Section 19. | Statement of Intent | 38 | |
Section 20. | Successors and Assigns; Third Party Beneficiaries | 39 | |
Section 21. | Counterparts | 39 | |
Section 22. | Captions | 39 | |
Section 23. | Severability | 39 | |
Section 24. | Entire Agreement | 39 | |
Section 25. | Withholding Taxes | 39 | |
Section 26. | Custody of Mortgage Loan Documents | 41 | |
Section 27. | Cooperation in Securitization | 41 | |
Section 28. | Notices | 42 | |
Section 29. | Broker | 42 | |
Section 30. | Certain Matters Affecting the Agent | 42 | |
Section 31. | Reserved | 43 | |
Section 32. | Resignation or Termination of Agent | 43 | |
Section 33. | Resizing | 43 |
-i- |
This AGREEMENT BETWEEN NOTE HOLDERS (this “Agreement”), dated as of September 3, 2015 by and between BANK OF AMERICA, N.A. (“BANA” and together with its successors and assigns in interest, in its capacity as initial owner of Note A-1 described below, the “Initial Note A-1 Holder” and, in its capacity as the initial agent, the “Initial Agent”) and BANA (together with its successors and assigns in interest, in its capacity as initial owner of Note A-2 described below, the “Initial Note A-2 Holder”; the Initial Note A-1 Holder and the Initial Note A-2 Holder are referred to collectively herein as the “Initial Note Holders”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), BANA originated a certain loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which was evidenced, inter alia, by one original promissory note, dated as of August 6, 2015 in the original principal amount of $180,000,000.00 and made by the Mortgage Loan Borrower in favor of BANA, as lender, (i) an amended and restated replacement promissory note designated Promissory Note A-1 in the original principal amount of $110,000,000.00 and (ii) an amended and restated replacement promissory note designated Promissory Note A-2 in the original principal amount of $70,000,000.00. The note referenced in clause (i) of the preceding sentence, as amended, modified or supplemented, is referred to herein as “Note A-1”; the note referenced in clause (ii) of the preceding sentence, as amended, modified or supplemented, is referred to herein as “Note A-2”. Note A-1 and Note A-2 are collectively referred to herein as the “Notes”. The Notes are secured by a first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real property located as described on the Mortgage Loan Schedule (the “Mortgaged Property”);
WHEREAS, the Initial Note A-2 Holder intends to sell, transfer and assign its right, title and interest in and to Note A-2 to Banc of America Merrill Lynch Commercial Mortgage Inc. (“BAMLCM”) pursuant to a Mortgage Loan Purchase Agreement expected to be dated as of September 14, 2015, between BAMLCM, as purchaser, and the Initial Note A-2 Holder, as seller, and BAMLCM intends to transfer its right, title and interest in and to Note A-2 to U.S. Bank National Association, as trustee for Bank of America Merrill Lynch Trust 2015-UBS7 under a pooling and servicing agreement, expected to be dated as of September 1, 2015 (the “Note A-2 PSA”), between BAMLCM, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, LNR Partners, LLC, as special servicer, Pentalpha Surveillance LLC, as trust advisor, U.S. Bank National Association, as trustee, certificate administrator, certificate registrar, authenticating agent and custodian;
WHEREAS, the Initial Note A-1 Holder and the Initial Note A-2 Holder desire to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold Note A-1 and Note A-2, respectively;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
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Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Lead Securitization Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Acceptable Insurance Default” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Advances” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Affiliate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.
“Agent Office” shall mean the designated office of the Agent, which office, as of the date of this Agreement, is the office of the Initial Note A-1 Holder listed on Exhibit B hereto, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Note Holders.
“Agreement” shall mean this Agreement between Note Holders, any exhibits and schedules hereto and all amendments hereof and thereof and supplements hereto and thereto.
“Approved Servicer” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“BAMLCM” shall mean Banc of America Merrill Lynch Commercial Mortgage Inc.
“BANA” shall have the meaning assigned to such term in the preamble to this Agreement.
“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity that is responsible for managing or administering a Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of such Note).
-2- |
“Certificate Administrator” shall mean the certificate administrator appointed as provided in the Lead Securitization Servicing Agreement.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Conduit” shall have the meaning assigned to such term in Section 14(d).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).
“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.
“Controlling Note” shall mean Note A-1.
“Controlling Note Holder” shall mean the holder of the Controlling Note; provided that at any time the Controlling Note is included in a Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” or any other party that is assigned the rights to exercise the rights of the “Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement; provided that for so long as 50% or more of the Controlling Note is held by (or the party assigned the rights to exercise the rights of the “Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, the Controlling Note (and such party assigned the rights to exercise the rights of the “Controlling Note Holder” as described above) shall not be entitled to exercise any rights of the Controlling Note Holder, and there shall be deemed to be no Controlling Note Holder hereunder.
“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
“DBRS” shall mean DBRS, Inc., and its successors-in-interest.
“Depositor” shall mean (i) with respect to the Note A-1 Securitization, the depositor under the Note A-1 PSA and (ii) with respect to the Note A-2 Securitization, BAMLCM.
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.
“Fitch” shall mean Fitch Ratings, Inc., and its successors-in-interest.
-3- |
“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note Holders” shall have the meaning assigned to such term in the preamble to this Agreement.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.
“Interest Rate” shall have the meaning assigned to such term or analogous term in the Mortgage Loan Agreement.
“Interested Person” shall mean the Depositor, any Non-Lead Depositor, the Master Servicer, any Non-Lead Master Servicer, the Special Servicer, any Non-Lead Special Servicer, the Trustee, any Non-Lead Trustee, any Mortgage Loan Borrower, any manager of any Mortgaged Property, any independent contractor engaged by any of the foregoing parties, the Controlling Note Holder, the Controlling Note Holder Representative, any Non-Controlling Note Holder, any Non-Controlling Note Holder Representative, any holder of a related mezzanine loan, or any known Affiliate of any such party described above.
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity that holds any Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“KBRA” shall mean Kroll Bond Rating Agency, Inc. and its successors-in-interest.
-4- |
“Lead Securitization” shall mean (a) during the period from and after the Note A-2 Securitization Date and prior to the Note A-1 Securitization Date, the Note A-2 Securitization; and (b) on and after the Note A-1 Securitization Date, the Note A-1 Securitization.
“Lead Securitization Controlling Class Representative” shall mean the “Controlling Class Representative” as defined in the Lead Securitization Servicing Agreement.
“Lead Securitization Note” shall mean (a) during the period from and after the Note A-2 Securitization Date and prior to the Note A-1 Securitization Date, Note A-2; and (b) on and after the Note A-1 Securitization Date, Note A-1.
“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note.
“Lead Securitization Servicing Agreement” shall mean (a) during the period from and after the Note A-2 Securitization Date and prior to the Note A-1 Securitization Date, the Note A-2 PSA; and (b) on and after the Note A-1 Securitization Date, the Note A-1 PSA; provided, that during any period that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the “Lead Securitization Servicing Agreement” shall be determined in accordance with the second paragraph of Section 2(a).
“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.
“Major Decisions” shall mean each “Major Decision” as defined in the Lead Securitization Servicing Agreement.
“Master Servicer” shall mean the master servicer appointed as provided in the Lead Securitization Servicing Agreement.
“Monthly Payment Date” shall have the meaning assigned to such term or analogous term in the Mortgage Loan Agreement.
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors-in-interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors-in-interest.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of August 6, 2015, between BANA, as lender, and the Mortgage Loan Borrower, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.
-5- |
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 13.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage Loan Agreement, the Mortgage, the Notes and all other documents now or hereafter evidencing and securing the Mortgage Loan.
“Mortgage Loan Schedule” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“New Notes” shall have the meaning assigned to such term in Section 33.
“Non-Controlling Note” means Note other than the Controlling Note, and any New Note designated as a “Non-Controlling Note” hereunder pursuant to Section 33.
“Non-Controlling Note Holder” means any holder of a Non-Controlling Note; provided that at any time such holder’s respective Note is included in a Securitization, references to such “Non-Controlling Note Holder” herein shall mean the “Controlling Class Representative” or any other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement and as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided that for so long as 50% or more of any Non-Controlling Note is held by (or the majority “controlling class” holder or other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, such Non-Controlling Note (and the majority “controlling class” holder or other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” as described above) shall not be entitled to exercise any rights of such Non-Controlling Note Holder, and there shall be deemed to be no Non-Controlling Note Holder hereunder with respect to such Non-Controlling Note. The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party in respect of any Note that is exercising the rights of a “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement and (x) to the extent that the related Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent any Note is split into two or more New Notes pursuant to Section 33, for purposes of this Agreement, the applicable Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its
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behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as a Non-Controlling Note Holder, as a Non-Controlling Note Holder under this Agreement.
“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit any Servicer on behalf of the Note Holders to make such payments free of any obligation or liability for withholding.
“Non-Lead Depositor” shall mean the depositor under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Master Servicer” shall mean the master servicer under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Securitization Note” shall mean (a) during the period from and after the Note A-2 Securitization Date and prior to the Note A-1 Securitization Date, Note A-1; and (b) on and after the Note A-1 Securitization Date, Note A-2.
“Non-Lead Securitization Note Holder” shall mean any holder of a Non-Lead Securitization Note.
“Non-Lead Securitization Servicing Agreement” shall mean, on and after the Note A-1 Securitization Date, the Note A-2 PSA.
“Non-Lead Special Servicer” shall mean the special servicer under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Trust Advisor” shall mean the trust advisor, operating advisor or other analogous term under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Trustee” shall mean the trustee under any Non-Lead Securitization Servicing Agreement.
“Non-Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is not a Securitizing Note Holder with respect to such Securitization.
“Note A-1” shall have the meaning assigned to such term in the recitals.
“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.
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“Note A-1 Master Servicer” shall mean the master servicer under the Note A-1 PSA.
“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the “Promissory Note A-1 Principal Balance” set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-1 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-1 PSA” shall have the meaning assigned to such term in the recitals.
“Note A-1 Securitization” shall mean the first sale by the Note A-1 Holder of all or a portion of Note A-1 to a depositor who will in turn include such portion of Note A-1 as part of the securitization of one or more mortgage loans.
“Note A-1 Securitization Date” shall mean the closing date of the Note A-1 Securitization.
“Note A-1 Special Servicer” shall mean the special servicer under the Note A-1 PSA.
“Note A-1 Trustee” shall mean the trustee under the Note A-1 PSA.
“Note A-1 Trust Fund” shall mean the trust formed pursuant to the Note A-1 PSA.
“Note A-2” shall have the meaning assigned to such term in the recitals.
“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.
“Note A-2 Master Servicer” shall mean the master servicer under the Note A-2 PSA.
“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the “Promissory Note A-2 Principal Balance” set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-2 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-2 PSA” shall mean the pooling and servicing agreement entered into in connection with the Note A-2 Securitization.
“Note A-2 Securitization” shall mean the first sale by the Note A-2 Holder of all or a portion of Note A-2 to a depositor who will in turn include such portion of Note A-2 as part of the securitization of one or more mortgage loans.
“Note A-2 Securitization Date” shall mean the closing date of the Note A-2 Securitization.
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“Note A-2 Special Servicer” shall mean the special servicer under the Note A-2 PSA.
“Note A-2 Trustee” shall mean the trustee under the Note A-2 PSA.
“Note A-2 Trust Fund” shall mean the trust formed pursuant to the Note A-2 PSA.
“Note Holder Representative” shall mean a Controlling Note Holder Representative or a Non-Controlling Note Holder Representative, as applicable.
“Note Holders” shall mean collectively, the Note A-1 Holder and the Note A-2 Holder.
“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).
“Note Register” shall have the meaning assigned to such term in Section 15.
“Notes” shall have the meaning assigned to such term in the recitals.
“P&I Advance” shall mean an advance made by a party to any Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Note securitized pursuant to such Securitization Servicing Agreement.
“Percentage Interest” shall mean, (a) with respect to the Note A-1 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance, and (b) with respect to the Note A-2 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Pledge” shall have the meaning assigned to such term in Section 14(c).
“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.
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“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other U.S. Person that is:
(a) an entity Controlled by, under common Control with or that Controls any of the Initial Note Holders, or
(b) the trustee on behalf of the trust certificates issued pursuant to a master trust agreement involving a CDO comprised of, or other securitization vehicle involving, assets deposited or transferred by a Note Holder and/or one or more Affiliates (whether with assets from others or not), provided that the securities issued in connection with such CDO or other securitization vehicle are rated by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with the Lead Securitization, or
(c) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended, or
(iii) a Qualified Trustee in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise subject to Rating Agency Confirmations from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the
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CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Initial Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (c)(i), (ii), (iii), (iv)(B) or (v) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or
(d) any entity Controlled by any of the entities described in clause (b) above or that is the subject of a Rating Agency Confirmation as a Qualified Institutional Lender for purposes of this Agreement from each of the Rating Agencies engaged by the Depositor and any Non-Lead Depositor to rate the securities issued by the related Securitization Trust.
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P).
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“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors-in-interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably engaged by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, that, at any time during which one or more of the Notes is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the related depositor (or its Affiliate) from time to time to rate the securities issued in connection with the Securitizations of the Notes.
“Rating Agency Communication” shall mean, with respect to any action and any Securitization, any written communication intended for a Rating Agency, which shall be delivered at least ten (10) Business Days prior to completing such action, in electronic document format suitable for website posting to the 17g-5 information provider under the applicable Securitization Servicing Agreement.
“Rating Agency Confirmation” shall mean, with respect to any Securitization, a confirmation in writing by each of the applicable Rating Agencies for such Securitization that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the securities issued pursuant to such Securitization that are then outstanding. If no such securities are outstanding with respect to any Securitization, any action that would otherwise require a Rating Agency Confirmation shall instead require the consent of the Lead Securitization Note Holder, which consent shall not be unreasonably withheld or delayed. For the purposes of this Agreement, if any Rating Agency shall waive, decline or refuse to review or otherwise engage any request for Rating Agency Confirmation hereunder, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that a Rating Agency Confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for a Rating Agency Confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for a Rating Agency Confirmation hereunder and the condition for Rating Agency Confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).
“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.
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“REMIC” shall mean a real estate mortgage investment conduit within the meaning 860D(a) of the Code.
“REMIC Provisions” shall mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“REO Property” shall have the meaning assigned to the term “REO Property” or such other analogous term used in the Lead Securitization Servicing Agreement.
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, such special servicer has a ranking by Morningstar equal to or higher than “MOR CS3” as a special servicer, provided that if Morningstar has not issued a ranking with respect to such special servicer, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by a Rating Agency within the twelve (12) month period prior to the date of determination, and Morningstar has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, (v) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination, and (vi) in the case of DBRS, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS within the twelve (12) month period prior to the date of determination and DBRS has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities as a material reason for such downgrade or withdrawal.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors-in-interest.
“Scheduled Interest Payment” shall mean the scheduled payment of interest due on the Mortgage Loan on a Monthly Payment Date.
“Scheduled Principal Payment” shall mean the scheduled payment of principal due on the Mortgage Loan on a Monthly Payment Date.
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“Securitization” shall mean the Note A-1 Securitization or the Note A-2 Securitization, as applicable.
“Securitization Date” shall mean the effective date on which the Securitization of the first Note or portion thereof is consummated.
“Securitization Servicing Agreement” shall mean the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement, as applicable.
“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which one or more of the Notes are held.
“Securitization Vehicle” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is contributing its Note to such Securitization.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Advance” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Standard” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.
“Special Servicer” shall mean the special servicer or excluded mortgage loan special servicer, as applicable, appointed as provided in the Lead Securitization Servicing Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Transfer” shall have the meaning assigned to such term in Section 14(a).
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“Trust Advisor” shall mean the trust advisor, operating advisor or other analogous term appointed as provided in the Lead Securitization Servicing Agreement.
“Trustee” shall mean the trustee appointed as provided in the Lead Securitization Servicing Agreement.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which is eligible to elect to be treated as a U.S. Person).
Section 2. Servicing of the Mortgage Loan.
(a) Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced (i) from and after the Note A-2 Securitization Date, but prior to the Note A-1 Securitization Date, by the Note A-2 Master Servicer and the Note A-2 Special Servicer pursuant to the terms of this Agreement and the Note A-2 PSA; and (ii) from and after the Note A-1 Securitization Date, by the Note A-1 Master Servicer and the Note A-1 Special Servicer pursuant to the terms of this Agreement and the Note A-1 PSA; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges that any other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 27, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the Special Servicer by the Controlling Note Holder and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). The Lead Securitization Servicing Agreement shall not limit the Servicer in enforcing the rights of one Note Holder against any other Note Holder as may be required in order to service the Mortgage Loan as contemplated by this Agreement and the Lead Securitization Servicing Agreement; provided, that it is also
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understood and agreed that nothing in this sentence shall be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement (i) to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, (ii) to provide information to each servicer under each Non-Lead Securitization Servicing Agreement necessary to enable each such servicer to perform its servicing duties under such Non-Lead Securitization Servicing Agreement, and (iii) to not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
At any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, that if a Non-Lead Securitization Note is in a Securitization and the servicer(s) to be appointed under such replacement servicing agreement would not otherwise meet the conditions to be a servicer under the Lead Securitization Servicing Agreement that is being replaced, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to the securities issued in connection with such Securitization for such Non-Lead Securitization Note; provided, further, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full force and effect with respect to the Mortgage Loan, by the applicable Servicer in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a qualified servicer meeting the requirements of the Lead Securitization Servicing Agreement. The Note Holders acknowledge that at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Master Servicer shall have no further obligation to make P&I Advances with respect to the Mortgage Loan.
(b) The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) shall make the following advances, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement: (i) Servicing Advances on the Mortgage Loan and (ii) P&I Advances on the Lead Securitization Note. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first, from funds on deposit in the Collection Account (as defined in the Lead Securitization Servicing Agreement) and/or the related Serviced Companion Loan Custodial Account (as defined in the Lead Securitization Servicing Agreement) for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Servicing Advances that are Nonrecoverable Advances, if such funds on deposit in the Collection Account and the related Serviced Companion Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for Advance Interest on a Servicing Advance (including any Nonrecoverable Advance) in the manner and from the sources provided in the
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Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Servicing Advance that is a Nonrecoverable Advance or any Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), each Non-Lead Securitization Note Holder (including any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Advance or Advance Interest.
In addition, any Non-Lead Securitization Note Holder (including, but not limited to, any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Trust Advisor, the Depositor or CREFC®, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, to the extent amounts on deposit in the related Serviced Companion Loan Custodial Account are insufficient for reimbursement of such amounts. Each Non-Lead Securitization Note Holder agrees to indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Depositor under the Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Trust Advisor (and any director, officer, member, manager, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property (or, with respect to the Trust Advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the related Serviced Companion Loan Custodial Account are insufficient for reimbursement of such amounts, each Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency; provided, that a Non-Lead Securitization Note Holder’s duty to pay Indemnified Items to the Trust Advisor shall be subject to any limitations and conditions (including limitations and conditions with respect to the timing of such payments and the sources of funds for such payments) as may be set forth from time to time in a Non-Lead Securitization Servicing Agreement.
Any Non-Lead Master Servicer (or Non-Lead Trustee (if not made by such Non-Lead Master Servicer)) may be required to make P&I Advances on the respective Non-Lead Securitization Note, from time to time, subject to the terms of the related Non-Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement and this
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Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. Any Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee under any Non-Lead Securitization Servicing Agreement, as applicable, shall each be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the related Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and any Non-Lead Master Servicer or Non-Lead Trustee, as applicable, shall each be required to notify the other of the amount of its P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Servicing Advance would be non-recoverable or an outstanding Servicing Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or such Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Securitization Servicing Agreement, in the case of the a determination of non-recoverability by a Non-Lead Master Servicer, a Non-Lead Special Servicer or a Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the related Non-Lead Master Servicer and the related Non-Lead Trustee, as the case may be, of such other Securitization within one (1) Business Day of making such determination. Each of the Master Servicer and the Trustee, any Non-Lead Master Servicer and any Non-Lead Trustee, as applicable, shall only be entitled to reimbursement for a P&I Advance and Advance Interest thereon that becomes non-recoverable first, from the related Serviced Companion Loan Custodial Account from amounts allocable to the Note for which such P&I Advance was made, and then, if such funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of a Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement.
(c) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) such Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances that are Nonrecoverable Advances (and Advance Interest thereon) and any Additional Trust Expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or Additional
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Trust Expenses, (x) the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, pay or reimburse, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Servicing Advances that are Nonrecoverable Advances and/or Additional Trust Expenses, and (y) if the Lead Securitization Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust Advisor to reimburse itself from the Lead Securitization Trust’s general collections, then the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust Advisor, as applicable, may do so and the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, pay or reimburse the Lead Securitization Trust out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Servicing Advances that are Nonrecoverable Advances (and Advance Interest thereon) and/or Additional Trust Expenses;
(ii) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the Securitization Trust holding such Non-Lead Securitization Note, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the related Serviced Companion Loan Custodial Account are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement; provided, that a Non-Lead Securitization Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Trust Advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(iii) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Trust Advisor (x) promptly following Securitization of such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, certificate administrator, Non-Lead Master Servicer, Non-Lead Special Servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the related executed Non-Lead Securitization Servicing Agreement and (y) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Securitization Note under this Agreement (together with the relevant contact information); and
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(iv) the Master Servicer and the Special Servicer and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(d) Prior to the Securitization of any Note (including any New Note), all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the master servicer and the special servicer with respect to such Securitization (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.
(e) In addition to the foregoing, each Securitization Servicing Agreement shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of the trust fund formed pursuant to such Securitization Servicing Agreement, (ii) required by law or changes in any law, rule or regulation or (iii) requested by the Rating Agencies rating the related Securitization. Each Non-Lead Securitization Note Holder shall have the right to designate the Non-Lead Master Servicer and Non-Lead Special Servicer with respect to the Securitization related to its Note, as long as each such Servicer satisfies the conditions to be the master servicer or special servicer, as applicable, set forth in the Lead Securitization Servicing Agreement. Without limiting the generality of any provision set forth above, for purposes of the Mortgage Loan, each Securitization Servicing Agreement (other than the Note A-2 PSA) shall contain (a) provisions requiring the related master servicer and the related special servicer to maintain, or subjecting them to possible termination for not maintaining, compliance with customary servicer rating criteria (but the rating agencies need not be the same) and (b) provisions substantially similar in all material respects to or materially consistent with those set forth in Note A-2 PSA with respect to (i) periodic reporting and periodic delivery of service provider compliance documents under Regulation AB (and, in any event, each Securitization Servicing Agreement shall require such reporting and delivery so long as the Lead Securitization is required to file periodic reports under the Securities Exchange Act of 1934, as amended), (ii) servicing transfer events that would result in the transfer of the Mortgage Loan to special servicing status, (iii) the authority of the Controlling Note Holder (or the Master Servicer or Special Servicer on its behalf) to grant or agree or consent to material modifications, waivers and amendments to the Mortgage Loan, or to approve material assignments and assumptions or material additional indebtedness in connection with the Mortgage Loan, (iv) the potential
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termination of the related master servicer and special servicer following a servicer termination event, (v) requirements to obtain an appraisal or appraisal update following a transfer of the Mortgage Loan to special servicing status and periodic updates thereof, (vi) duties of the special servicer in respect of foreclosure and the management of REO property, (vii) primary servicing, special servicing, workout and liquidation fees (and, in any event, the fees at which such compensation accrue or are determined shall not exceed 0.0050%, 0.25%, 1.00% and 1.00%, respectively) and (viii) indemnification of the Depositor, Master Servicer, Special Servicer, Certificate Administrator, Trustee and Trust Advisor under the Lead Securitization Servicing Agreement (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the related trust advisor, incurred in connection with the provision of services for the Mortgage Loan) to the same extent that the Indemnified Parties are indemnified under the Lead Securitization Servicing Agreement against the Indemnified Items; provided, that (A) this statement shall not be construed to prohibit differences in timing, control or consultation triggers or thresholds, terminology, allocation of ministerial duties between multiple servicers or other service providers or certificateholder or investor voting or consent thresholds, or to prohibit or restrict additional approval, consent, consultation, notice or rating agency communication and rating agency confirmation requirements; and (B) if there is any conflict between this sentence and any other provision of this Agreement, such other provision of this Agreement shall control.
(f) The Lead Securitization Note Holder shall cause the Lead Securitization Servicing Agreement to contain provisions requiring the Master Servicer to deliver to any Non-Lead Master Servicer, any Non-Lead Special Servicer and any Non-Lead Trustee (i) notice of any Appraisal Event promptly following the occurrence thereof and (ii) a statement of any Appraisal Reduction promptly following the calculation thereof.
Section 3. Priority of Payments. Each Note shall be of equal priority, and no portion of any Note shall have priority or preference over any portion of any other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Scheduled Interest Payments, Scheduled Principal Payments, any proceeds from the sale or distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions),
shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis; provided, that (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent and in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Servicing
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Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement shall be applied to the extent set forth in, and in accordance with the terms of, the Mortgage Loan Documents; and (y) all amounts that are then due, payable or reimbursable to any Servicer with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement and any other additional compensation payable to it thereunder (including without limitation, any Additional Trust Expenses relating to the Mortgage Loan (but subject to the second paragraph of Section 5(d) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Workout Fees, Penalty Charges (to the extent provided in the immediately following paragraph), but excluding (i) any P&I Advances (and interest thereon) on the Lead Securitization Note, which shall be reimbursed in accordance with Section 2(b) hereof, and (ii) any Master Servicing Fees due to the Master Servicer in excess of each Non-Lead Securitization Note’s pro rata share of that portion of such servicing fees calculated at the “primary servicing fee rate” applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement, which such excess shall not be subject to the allocation provisions of this Section 3) shall be payable in accordance with the Lead Securitization Servicing Agreement.
For clarification purposes, “Penalty Charges” (or analogous term as defined in the Lead Securitization Servicing Agreement) paid on each Note shall, first, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Servicing Advances and reimbursement of any Servicing Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, be used to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, any Non-Lead Master Servicer or any Non-Lead Trustee, as applicable, for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or applicable Non-Lead Securitization Servicing Agreement, as applicable), third, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay Additional Trust Expenses (other than Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, with respect to any remaining amount of Penalty Charges, pro rata, to the Lead Securitization Note (to be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement) and to each Non-Lead Securitization Note (to be paid, (x) prior to the securitization of such Note, to the related Note Holder and (y) following the securitization of such Note, to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement).
Section 4. Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement, and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the
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Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including, without limitation, Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf), shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or to consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) the rights, if any, that such Note Holder has from and after the initial Securitization Date to, (i) call, or cause the Lead Securitization Note Holder to call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing, or causing the Lead Securitization Note Holder to file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).
Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Loan, to sell the Notes together as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell the Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization
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Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) shall not be permitted to sell the Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicer Mortgage File requested by such Non-Lead Securitization Note Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the related Lead Securitization Controlling Class Representative prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale. Subject to the foregoing, each Note Holder or its Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan.
Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of its Note. Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) further agrees that, upon the request of the Lead Securitization Note Holder, such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver its original Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.
The authority of the Lead Securitization Note Holder to sell any Non-Lead Securitization Note, and the obligations of any other Note Holder to execute and deliver instruments or deliver the related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or
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material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization.
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as, or is an Affiliate of, the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein.
(c) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Lead Securitization Note Holder (or its Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Controlling Class Representative under the Lead Securitization Servicing Agreement due to the expiration of the related “Subordinate Control Period” (as defined under the Lead Securitization Servicing Agreement) or the “Collective Consultation Period” (as defined under the Lead Securitization Servicing Agreement)) and (ii) to use reasonable efforts to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the
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implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Controlling Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).
In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to annual meetings (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.
(d) If any Note is included as an asset of a REMIC within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of
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the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC related provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. All costs and expenses of compliance with this Section 5(d), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by all of the Note Holders collectively, each contributing on a pro rata and pari passu basis according to the Percentage Interest represented by each Note.
Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to any other Note Holder be reduced to offset or make-up any such payment or deficit.
Section 6. Rights of the Controlling Note Holder.
(a) The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. Any Servicer acting on behalf of the Lead Securitization Note Holder shall not be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified such Servicer or Trustee of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides any Servicer or Trustee with written confirmation of its acceptance of such appointment, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers). The Controlling Note Holder shall promptly deliver such information to
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any Servicer. None of the Servicers, Trust Advisor and Trustee shall be required to recognize any person as a Controlling Note Holder Representative until they receive such information from the Controlling Note Holder. The Controlling Note Holder agrees to inform each such Servicer or Trustee of the then-current Controlling Note Holder Representative.
Neither the Controlling Note Holder Representative nor the Controlling Note Holder will have any liability to any other Note Holder or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over any other Note Holder, and that the Controlling Note Holder Representative and the Controlling Note Holder may have special relationships and interests that conflict with the interests of another Note Holder and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
Each Non-Controlling Note Holder shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon.
Each Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in the first paragraph of this Section 6(a) (except those contained in the last sentence thereof) and the second paragraph of this Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.
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For so long as the Lead Securitization Note is included in the Lead Securitization, the “Controlling Class Representative” under the Lead Securitization Servicing Agreement (or any other party designated under the Lead Securitization Servicing Agreement to exercise the rights of the Controlling Note Holder hereunder) shall be the Controlling Note Holder Representative.
(b) The Controlling Note Holder shall be entitled to exercise the rights and powers granted to the Controlling Note hereunder and the rights and powers granted to the Lead Securitization Controlling Class Representative with respect to the Mortgage Loan (assuming that a “Subordinate Control Period” or similar period under, and as defined in, the Lead Securitization Servicing Agreement is in effect). In addition, the Controlling Note Holder shall be entitled to advise (1) the Special Servicer with respect to all matters related to the Mortgage Loan if it is a Specially Serviced Mortgage Loan and (2) the Special Servicer with respect to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and, except as set forth below (i) the Master Servicer shall not be permitted to implement any Major Decision unless it has obtained the prior written consent of the Special Servicer and (ii) the Special Servicer shall not be permitted to consent to the Master Servicer’s implementing any Major Decision nor will the Special Servicer itself be permitted to implement any Major Decision as to which the Controlling Note Holder has objected in writing within ten (10) Business Days (or thirty (30) days with respect to an Acceptable Insurance Default) after receipt of the written recommendation and analysis and such additional information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment with respect to such Major Decision. The Controlling Note Holder may also direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Note Holder may deem advisable.
If the Controlling Note Holder fails to notify the Special Servicer of its approval or disapproval of any proposed Major Decision within ten (10) Business Days (or thirty (30) days with respect to an Acceptable Insurance Default) after delivery to the Controlling Note Holder by the applicable Servicer of written notice of a proposed Major Decision (which notice shall contain a legend, in conspicuous boldface type, substantially similar to the following: “THIS IS A REQUEST FOR ACTION APPROVAL. IF THE CONTROLLING NOTE HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED ACTION WITHIN TEN (10) BUSINESS DAYS, SUCH ACTION MAY BE DEEMED APPROVED”) together with any information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment, then upon the expiration of such ten (10) Business Day period (or thirty (30) days with respect to an Acceptable Insurance Default), such Major Decision shall be deemed to have been approved by the Controlling Note Holder.
In the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by the Lead Securitization Servicing Agreement to take such action), as applicable, determines that immediate action, with respect to the foregoing matters, or any other matter requiring consent of the Controlling Note Holder is necessary to protect the interests of the Note Holders (as a collective whole) and the Special Servicer has made a reasonable effort to contact the Controlling Note Holder, the Master Servicer or the Special
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Servicer, as the case may be, may take any such action without waiting for the Controlling Note Holder’s response.
No objection, direction, consent or advice contemplated by the preceding paragraphs may require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of the Mortgage Loan Documents, applicable law, the Lead Securitization Servicing Agreement, this Agreement, the REMIC Provisions of the Code or the Master Servicer or Special Servicer’s obligation to act in accordance with the Servicing Standard.
Section 7. Appointment of Special Servicer. The Controlling Note Holder (or its Controlling Note Holder Representative) shall have the right (subject to the terms, conditions and limitations in the Lead Securitization Servicing Agreement) at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to each other Note Holder, the Master Servicer, the Special Servicer and each other party to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Communication or a Rating Agency Confirmation, but only if required by the terms of the Lead Securitization Servicing Agreement), if any. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects any Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges and agrees that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Each Non-Controlling Note Holder shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Lead Securitization’s collection account (or equivalent account).
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Section 8. Payment Procedure.
(a) The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf), in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the “Collection Account” and/or “Serviced Companion Loan Custodial Account” (or the related analogous term and each as defined in the Lead Securitization Servicing Agreement) pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) shall deposit such amounts to the applicable account within one (1) Business Day of receipt of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower (provided, that to the extent that any payment is received after 2:00 p.m. (Eastern time) on any given Business Day, the Master Servicer is required to use commercially reasonable efforts to deposit such payment into the applicable account within one (1) Business Day of receipt of such payment, but, in any event , the Master Servicer is required to deposit such payments into the applicable account within two (2) Business Days of receipt of such payment).
(b) If the Lead Securitization Note Holder (or the Servicer acting on its behalf) determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to any Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall not be required to distribute any portion thereof to any Non-Lead Securitization Note Holder and each Non-Lead Securitization Note Holder shall promptly on demand by the Lead Securitization Note Holder repay to the Lead Securitization Note Holder (or the Servicer acting on its behalf) any portion thereof that the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall have theretofore distributed to such Non-Lead Securitization Note Holder, together with interest thereon at such rate, if any, as the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Lead Securitization Note Holder (or the Servicer acting on its behalf) makes any payment to any Non-Lead Securitization Note Holder before the Lead Securitization Note Holder (or the Servicer acting on its behalf) has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder (or the Servicer acting on its behalf) does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s (or the Servicer acting on its behalf) request, promptly return that payment to the Lead Securitization Note Holder (or the Servicer acting on its behalf).
(d) Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this
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Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from any Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. Such Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Note Holders. No Note Holder shall have any liability to any other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder; provided, that, notwithstanding any of the foregoing to the contrary, each Servicer will nevertheless be subject to the obligations and standards (including the Servicing Standard) set forth in the related Securitization Servicing Agreement.
The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of any Non-Lead Securitization Note Holder and that the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) shall have no liability whatsoever to any Non-Lead Securitization Note Holder in connection with the Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, that each Servicer must act in accordance with the Servicing Standard.
Section 10. Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder (or the Servicer on its behalf) has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not any Non-Lead Securitization Note Holder, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to any Non-Lead Securitization Note Holder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note Holders hereby agree
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that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by any Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard and the terms of this Agreement.
Section 11. Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
Section 12. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. The Lead Securitization Note Holder shall have no obligation whatsoever to offer to any Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates and if the Lead Securitization Note Holder chooses to offer to any Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by the Lead Securitization Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as the Lead Securitization Note Holder chooses, in its sole and absolute discretion. No Non-Lead Securitization Note Holders shall have any obligation whatsoever to purchase from the Lead Securitization Note Holder a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates.
Section 13. Other Business Activities of the Note Holders. Each Note Holder acknowledges that each other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership
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interests in the Mortgage Loan Borrower or Affiliate thereof or any entity any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower Affiliate thereof or any entity (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 14. Sale of the Notes.
(a) Each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its respective Note (or a participation interest in such Note) (a “Transfer”) except to a Qualified Institutional Lender in accordance with the terms of this Agreement. Promptly after any such Transfer, any non-transferring Note Holders shall be provided with (x) a representation from each transferee or the transferring Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer in accordance with the immediately following sentence or a Transfer by a Note Holder to an entity that constitutes a Qualified Institutional Lender pursuant to clause (c)(iii) of the definition thereof) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first obtain the consent of each non-transferring Note Holder and, if any such non-transferring Note Holder’s Note is held in a Securitization Trust, obtain a Rating Agency Confirmation from each of the applicable engaged Rating Agencies for such Securitization Trust. Notwithstanding the foregoing, without each non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if any such non-transferring Note Holder’s Note is held in a Securitization Trust, without a Rating Agency from each of the applicable engaged Rating Agencies for such Securitization, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Note Holder agrees that it shall pay the expenses of any non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer, the Trustee and any Controlling Note Holder or Controlling Note Holder Representative) and all expenses relating to the confirmation from the Rating Agencies in connection with any such Transfer. Notwithstanding the foregoing, unless the related Note is included in a Securitization, each Note Holder shall have the right, without the need to obtain the consent of any other Note Holder, the Rating Agencies or any other Person, to Transfer 49% or less (in the aggregate) of its beneficial interest in a Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of Note A-1 together with Note A-2, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.
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For the purposes of this Agreement, if any Rating Agency shall, in writing, waive, decline or refuse to review or otherwise engage any request for a Rating Agency Confirmation, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that such confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for such confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for such Rating Agency Confirmation hereunder and the condition for such Rating Agency Confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
(b) In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.
(c) Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit or repurchase facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each applicable Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to each other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to each other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder and accept any cure thereof by such Note Pledgee which such pledging Note Holder has the right (but not the obligation) to effect hereunder, as if such cure were made by such pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided
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that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to each other Note Holder and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases each other Note Holder and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(d) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Note Holder then such Note Holder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) the loan (the “Conduit Inventory Loan”) made by the Conduit to such Note Holder to finance the acquisition and holding of its Note requires a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) the Conduit Credit Enhancer is a Qualified Institutional Lender;
(iii) such Note Holder pledges (or sells, transfers or assigns as part of a repurchase facility) its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) the Conduit Credit Enhancer and the Conduit agree that, if such Note Holder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Note
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Holder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Note Holder’s Note to the Conduit Credit Enhancer; and
(v) unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
Section 15. Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of each other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.
In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and each other Note Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.
Section 16. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES
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ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 17. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 18. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first delivering a Rating Agency Communication to each Rating Agency; provided that no such Rating Agency Communication shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement, or (ii) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement.
Section 19. Statement of Intent. The Agent and each Noteholder intend that the Notes be classified and maintained as a grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code that is a fixed investment trust within the meaning of Treasury Regulation §301.7701-4(c), and the parties will not take any action inconsistent with such classification. It is neither the purpose nor the intent of this Agreement to create a partnership, joint venture, “taxable mortgage pool” or association taxable as a corporation among the parties.
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Section 20. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer and Special Servicer and any Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder. For the avoidance of doubt, the representations in Section 11 shall not be binding upon any Securitization Trust.
Section 21. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 22. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 23. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 25. Withholding Taxes. (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to any Non-Lead Securitization Note Holder with respect to the Mortgage Loan as a result of such Non-Lead Securitization Note Holder constituting a Non-Exempt Person, such Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to such Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish such Non-Lead Securitization Note Holder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.
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(b) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made to such Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.
(c) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) represents (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Note Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if a Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments), Form W-8BEN or Form W-8BEN-E, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any payment hereunder with respect to any Non-Lead Securitization Note or otherwise until the holder of such Note shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.
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Section 26. Custody of Mortgage Loan Documents. Prior to the Note A-2 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-1) will be held by the Initial Agent on behalf of the registered holders of the Notes. On and after the Note A-2 Securitization Date, but prior to the Note A-1 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-1) shall be held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-2 PSA, on behalf of the registered holders of the Notes. On and after the Note A-1 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-2) shall be transferred to and held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-1 PSA, on behalf of the registered holders of the Notes.
Section 27. Cooperation in Securitization.
(a) Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, at the request of the related Securitizing Note Holder, each related Non-Securitizing Note Holder shall use reasonable efforts, at such Securitizing Note Holder’s expense, to satisfy, and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which such Securitizing Note Holder customarily adheres or that may be reasonably required in the marketplace or by the Rating Agencies in connection with such Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect such Securitization; provided, that no Non-Securitizing Note Holder shall be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Securitizing Note Holder or (ii) materially increase such Non-Securitizing Note Holder’s obligations or materially decrease such Non-Securitizing Note Holder’s rights, remedies or protections. In connection with any Securitization, each related Non-Securitizing Note Holder shall provide for inclusion in any disclosure document relating to such Securitization such information concerning such Non-Securitizing Note Holder and its Note as the related Securitizing Note Holder reasonably determines to be necessary or appropriate, and such Non-Securitizing Note Holder shall, at the Securitizing Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and such Securitizing Note Holder in connection with such Securitization (including, without limitation, reasonably cooperating with the Securitizing Note Holder (without any obligation to make additional representations and warranties) to enable the Securitizing Note Holder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and such Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Non-Securitizing Note Holder and its Note in any Securitization document. Each Note Holder acknowledges that in connection with any Securitization, the information provided by it in its capacity as a Non-Securitizing Note Holder to the related Securitizing Note Holder may be incorporated into the offering documents
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for such Securitization. Each Securitizing Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, each Non-Securitizing Note Holder. The Securitizing Note Holder shall reasonably cooperate with each Non-Securitizing Note Holder by providing all information reasonably requested that is in the Securitizing Note Holder’s possession in connection with such Non-Securitizing Note Holder’s preparation of disclosure materials in connection with a Securitization.
Upon request, each Securitizing Note Holder shall deliver to each related Non-Securitizing Note Holder drafts of the preliminary and final offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the pooling and servicing agreement for the Securitization of such Securitizing Note Holder’s Note and provide reasonable opportunity to review and comment on such documents.
Section 28. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
Section 29. Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.
Section 30. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Note Holder pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
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(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 15;
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder; and
(g) The Agent represents and warrants that it is a Qualified Institutional Lender.
Section 31. Reserved.
Section 32. Resignation or Termination of Agent. The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. BANA, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of the Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of BANA without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement, and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.
Section 33. Resizing. Notwithstanding any other provision of this Agreement, for so long as BANA or an affiliate thereof (a “Original Entity”) is the owner of each Non-Lead Securitization Note (each an “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of an Owned Note to such New Notes; or severing an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of such Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, (iv) the Original Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes does not violate the Servicing Standard. If the Lead Securitization Note Holder so requests, the Original Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing
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applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoing (provided the conditions set forth in clauses (i) through (v) above are satisfied, with respect to clauses (i) through (iv), as certified by the Original Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal. If more than one New Note is created hereunder, for purposes of exercising the rights of a Controlling Note Holder or Non-Controlling Note Holder hereunder, the “Controlling Note Holder” or “Non-Controlling Note Holder”, as applicable, shall be as provided in the definitions of such terms in this Agreement; provided that the Controlling Note Holder shall be entitled to designate any New Note created from the existing Controlling Note to be a Non-Controlling Note hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Initial Note Holders have caused this Agreement to be duly executed as of the day and year first above written.
BANK OF AMERICA, N.A., | ||
as Initial Note A-1 Holder | ||
By: | /s/ Steven Wasser | |
Name: Steven Wasser Title: Managing Director |
BANK OF AMERICA, N.A., | ||
as Initial Note A-2 Holder | ||
By: | /s/ Steven Wasser | |
Name: Steven Wasser Title: Managing Director |
261 Fifth Avenue Agreement Between Note Holders
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Description of Mortgage Loan | |
Mortgage Loan Borrower(s): | 261 Fifth Avenue TIC Owner LLC |
Date of Mortgage Loan: | August 6, 2015 |
Date of Original Note: | August 6, 2015 |
Date of the Notes: | September 3, 2015 |
Original Principal Amount of Mortgage Loan: | $180,000,000.00 |
Replacement, Amended and Restated Promissory Note A-1 Principal Balance: | $110,000,000.00 |
Replacement, Amended and Restated Promissory Note A-2 Principal Balance: | $70,000,000.00 |
Location of Mortgaged Property: | New York, New York |
Initial Maturity Date: | September 1, 2025 |
A-1 |
EXHIBIT B
1. Initial Note A-1 Holder:
(Prior to Securitization of Note A-1):
Bank of America, N.A.
NC1-027-15-01
214 North Tryon Street
Charlotte, North Carolina 28255
Attention: Steven L. Wasser
Email: steve.l.wasser@baml.com
with a copy to:
W. Todd Stillerman, Esq.
Bank of America Corporation
NC1-027-20-05
214 North Tryon Street, 20th Floor
Charlotte, North Carolina 28255
Email: william.stillerman@bankofamerica.com
Following Securitization of Note A-1 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
2. Initial Note A-2 Holder:
Bank
of America, N.A.
NC1-027-15-01
214 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Steven L. Wasser
Email: steve.l.wasser@baml.com
with a copy to:
Bank
of America, N.A.
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Attention: W. Todd Stillerman, Esq.
Email: william.stillerman@bankofamerica.com
Following Securitization of Note A-2 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
B-1 |
EXHIBIT C
PERMITTED FUND MANAGERS
1. | Alliance Bernstein |
2. | Annaly Capital Management |
3. | Apollo Real Estate Advisors |
4. | Archon Capital, L.P. |
5. | AREA Property Partners |
6. | Artemis Real Estate Partners |
7. | BlackRock, Inc. |
8. | Capital Trust, Inc. |
9. | Clarion Partners |
10. | Colony Capital, LLC / Colony Financial, Inc. |
11. | CreXus Investment Corporation/Annaly Capital Management |
12. | DLJ Real Estate Capital Partners |
13. | Dune Real Estate Partners |
14. | Eightfold Real Estate Capital, L.P. |
15. | Five Mile Capital Partners |
16. | Fortress Investment Group, LLC |
17. | Garrison Investment Group |
18. | Goldman, Sachs & Co. |
19. | H/2 Capital Partners LLC |
20. | Hudson Advisors |
21. | Investcorp International |
22. | iStar Financial Inc. |
23. | J.P. Morgan Investment Management Inc. |
24. | JER Partners |
25. | Lend-Lease Real Estate Investments |
26. | Libermax Capital LLC |
27. | LoanCore Capital |
28. | Lone Star Funds |
29. | Lowe Enterprises |
30. | Normandy Real Estate Partners |
31. | One William Street Capital Management, L.P. |
32. | Och-Ziff Capital Management Group/ OZ Management, L.P./ OZ Management II., L.P. |
33. | Praedium Group |
34. | Raith Capital Partners, LLC |
35. | Rialto Capital Management, LLC |
36. | Rialto Capital Partners LLC |
37. | Rimrock Capital Management LLC |
38. | Rockpoint Group |
39. | Rockwood |
40. | RREEF Funds |
41. | Square Mile Capital Management |
42. | Starwood Capital Group/Starwood Financial Trust |
43. | The Blackstone Group |
44. | The Carlyle Group |
45. | Torchlight Investors |
46. | Walton Street Capital, L.L.C. |
47. | Westbrook Partners |
48. | WestRiver Capital |
49. | Wheelock Street Capital |
50. | Whitehall Street Real Estate Fund, L.P. |
C-1 |
Exhibit 4.6
EXECUTION VERSION
CO-LENDER AGREEMENT
Dated as of August 18, 2015
by and between
UBS REAL ESTATE SECURITIES INC.
(Initial Note A-1 Holder)
and
UBS REAL ESTATE SECURITIES INC.
(Initial Note A-2 Holder)
The Mall of New Hampshire
TABLE OF CONTENTS
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Section 1 | Definitions | 1 |
Section 2 | Servicing of the Mortgage Loan | 15 |
Section 3 | Priority of Payments | 20 |
Section 4 | Workout | 21 |
Section 5 | Administration of the Mortgage Loan | 21 |
Section 6 | Appointment of Controlling Note Holder Representative and Non-Controlling Note Holder Representative | 26 |
Section 7 | Appointment of Special Servicer | 29 |
Section 8 | Payment Procedure | 30 |
Section 9 | Limitation on Liability of the Note Holders | 31 |
Section 10 | Bankruptcy | 31 |
Section 11 | Representations of the Note Holders | 32 |
Section 12 | No Creation of a Partnership or Exclusive Purchase Right | 32 |
Section 13 | Other Business Activities of the Note Holders | 33 |
Section 14 | Sale of the Notes | 33 |
Section 15 | Registration of the Notes and Each Note Holder | 36 |
Section 16 | Governing Law; Waiver of Jury Trial | 36 |
Section 17 | Submission To Jurisdiction; Waivers | 37 |
Section 18 | Modifications | 37 |
Section 19 | Successors and Assigns; Third Party Beneficiaries | 38 |
Section 20 | Counterparts | 38 |
Section 21 | Captions | 38 |
Section 22 | Severability | 38 |
Section 23 | Entire Agreement | 38 |
Section 24 | Withholding Taxes | 38 |
Section 25 | Custody of Mortgage Loan Documents | 39 |
Section 26 | Cooperation in Securitization | 40 |
Section 27 | Notices | 41 |
Section 28 | Broker | 41 |
Section 29 | Certain Matters Affecting the Agent | 41 |
Section 30 | Termination and Resignation of Agent | 42 |
Section 31 | Resizing | 42 |
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THIS CO-LENDER AGREEMENT (this “Agreement”), dated as of August 18, 2015 by and between UBS REAL ESTATE SECURITIES INC. (“UBSRES” and together with its successors and assigns in interest, in its capacity as initial owner of the Note A-1, the “Initial Note A-1 Holder”, and in its capacity as the initial agent, the “Initial Agent”) and UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as initial owner of the Note A-2, the “Initial Note A-2 Holder” and, together with the Initial Note A-1 Holder, the “Initial Note Holders”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), UBSRES originated a certain loan described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) (the “Mortgage Loan”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which was evidenced, inter alia, by two promissory notes (as amended, modified or supplemented, the “Notes”), (i) one promissory note in the original principal amount of $100,000,000 (“Note A-1”) made by the Mortgage Loan Borrower in favor of the Initial Note A-1 Holder (“Initial Note A-1”) and (ii) one promissory note in the original principal amount of $50,000,000 (“Note A-2”), made by the Mortgage Loan Borrower in favor of the Initial Note A-2 Holder (“Initial Note A-2”); and secured by a first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real property located as described in the Loan Agreement (collectively, the “Mortgaged Property”); and
WHEREAS, the Initial Note A-1 Holder and the Initial Note A-2 Holder desire to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold Note A-1 and Note A-2, respectively;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Lead Securitization Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Affiliate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.
“Agent Office” shall mean the designated office of the Agent in the State of New York, which office at the date of this Agreement is located at 1285 Avenue of the Americas, 8th
Floor, New York, New York 10019 Attention: Transaction Management – Henry Chung, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Noteholders.
“Agreement” shall mean this Agreement between Note Holders, the exhibits and schedule hereto and all amendments hereof and supplements hereto.
“Approved Servicer” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
“CDO Asset Manager” with respect to any Securitization Vehicle which is a CDO, shall mean the entity which is responsible for managing or administering a Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of such Note).
“Certificate Administrator” shall mean Wells Fargo Bank, National Association or its successor in interest, or any successor Certificate Administrator appointed as provided in the Lead Securitization Servicing Agreement.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collection Account” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.
“Conduit” shall have the meaning assigned to such term in Section 14(d).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).
“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controls” have meanings correlative thereto.)
“Controlling Class Representative” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.
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“Controlling Note Holder” shall mean the Note A-1 Holder; provided that at any time Note A-1 is included in the Lead Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in the Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” hereunder or under the Lead Securitization Servicing Agreement, as and to the extent provided in the Lead Securitization Servicing Agreement; provided that if at any time 50% or more of Note A-1 (or class of securities issued in the Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder”) is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, Note A-1 (or the class of securities issued in the Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder”) shall not be entitled to exercise any rights of the Controlling Note Holder.
“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
“DBRS” shall mean DBRS, Inc., and its successors in interest.
“Depositor” shall mean Credit Suisse First Boston Mortgage Securities Corp.
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.
“Fitch” shall mean Fitch Ratings, Inc., and its successors in interest.
“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note Holders” shall have the meaning assigned to such term in the preamble to this Agreement.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted
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under the Mortgage Loan Documents; provided, however, that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.
“Interest Rate” shall mean the Interest Rate (as defined in the Mortgage Loan Documents).
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity which holds any Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“KBRA” shall mean Kroll Bond Rating Agency, Inc. and its successors in interest.
“Lead Securitization” shall mean the Securitization of Note A-1 in a Securitization Trust to be designated by the Initial Note A-1 Holder.
“Lead Securitization Note” shall mean Note A-1.
“Lead Securitization Note Holder” shall mean the Note A-1 Holder.
“Lead Securitization Servicing Agreement” shall mean the pooling and servicing agreement to be entered into in connection with the Securitization of Note A-1 and issuance of the CSAIL 2015-C3 Commercial Mortgage Trust, Commercial Mortgage Pass Through Certificates, Series 2015-C3, by and among (a) the Trustee, (b) the Master Servicer, (c) the Special Servicer, (d) the Depositor, (e) the Certificate Administrator and (f) the Operating Advisor. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.
“Lead Securitization Subordinate Class Representative” shall mean the “Controlling Class Representative”.
“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.
“Major Decisions” shall have the meaning given to such term or any one or more analogous terms in the Lead Securitization Servicing Agreement; provided that at any time that Note A-1 is not included in the Lead Securitization “Major Decision” shall mean:
(i) any proposed or actual foreclosure upon or comparable conversion (which shall include acquisitions of any REO Property) of the ownership of the
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property or properties securing the Mortgage Loan if it comes into and continues in default;
(ii) any modification, consent to a modification or waiver of any monetary term (other than late fees and default interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Mortgage Loan or any extension of the maturity date of the Mortgage Loan;
(iii) following a default or an event of default with respect to the Mortgage Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or initiation of any proceedings, judicial or otherwise, under the related Mortgage Loan Documents;
(iv) any sale of the Mortgage Loan (when it is a Defaulted Mortgage Loan) or REO Property for less than the applicable Purchase Price (as defined in the Lead Securitization Servicing Agreement);
(v) any determination to bring a Mortgaged Property or an REO Property into compliance with applicable environmental laws or to otherwise address any Hazardous Materials (as defined in the Lead Securitization Servicing Agreement) located at a Mortgaged Property or an REO Property;
(vi) any release of material collateral or any acceptance of substitute or additional collateral for the Mortgage Loan or any consent to either of the foregoing, other than if required pursuant to the specific terms of the related Mortgage Loan Documents and for which there is no lender discretion;
(vii) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Mortgage Loan or any consent to such a waiver or consent to a transfer of a Mortgaged Property or interests in the borrower;
(viii) any incurrence of additional debt by a borrower or any mezzanine financing by any beneficial owner of a borrower (to the extent that the lender has consent rights pursuant to the related Mortgage Loan Documents);
(ix) any material modification, waiver or amendment of an intercreditor agreement, co-lender agreement or similar agreement with any mezzanine lender or subordinate debt holder related to the Mortgage Loan, or any action to enforce rights (or decision not to enforce rights) with respect thereto, or any material modification, waiver or amendment thereof;
(x) any property management company changes, including, without limitation, approval of the termination of a manager and appointment of a new property manager or franchise changes (in each case, if the lender is required to consent or approve such changes under the Mortgage Loan Documents);
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(xi) releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Mortgage Loan Documents and for which there is no lender discretion;
(xii) any acceptance of an assumption agreement releasing a borrower, guarantor or other obligor from liability under the Mortgage Loan other than pursuant to the specific terms of such Mortgage Loan and for which there is no lender discretion;
(xiii) any determination of an Acceptable Insurance Default (as defined in the Lead Securitization Servicing Agreement);
(xiv) any determination by the Master Servicer to transfer the Mortgage Loan to the Special Servicer under the circumstances described in paragraph (c) of the definition of “Specially Serviced Loan” (as defined in the Lead Securitization Servicing Agreement); or
(xv) any approval of a Major Lease (as defined in the Mortgage Loan Documents) to the extent lender’s approval is required by the Mortgage Loan Documents;.
“Master Servicer” shall mean Midland Loan Services, a Division of PNC Bank, National Association, or its successor in interest, or any successor Master Servicer appointed as provided in the Lead Securitization Servicing Agreement.
“Monthly Payment Date” shall mean the Payment Date (as defined in the Mortgage Loan Documents).
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of June 25, 2015, among MNH Mall L.L.C. and Mall of New Hampshire Best Buy L.P., collectively, as Borrower, and UBSRES, as Lender, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
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“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 13.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage Loan Agreement, the Mortgage, the Notes and all other documents now or hereafter evidencing and securing the Mortgage Loan.
“Mortgage Loan Schedule” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“Nonrecoverable Property Advance” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.
“Non-Controlling Note Holder” means the Note A-2 Holder; provided that at any time Note A-2 is included in a Securitization, references to the “Non-Controlling Note Holder” herein shall mean the Non-Lead Securitization Subordinate Class Representative or any other party assigned the rights to exercise the rights of the “Non-Controlling Note Holder” hereunder, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement and as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided that if at any time 50% or more of Note A-1 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, Note A-1 shall not be entitled to exercise any rights of the Controlling Note Holder and the Note A-2 Holder shall be the Controlling Note Holder unless 50% or more of Note A-2 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower. If 50% or more of each of Note A-1 and Note A-2 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, no person shall be entitled to exercise the rights of the Controlling Note Holder. The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party exercising the rights of the “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement and, (x) to the extent that the related Non-Lead Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent Note A-2 is split into two or more New Notes pursuant to Section 31, for purposes of this Agreement, the Non-Lead Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as the Non-Controlling Note Holder, as the Non-Controlling Note Holder for all purposes of this Agreement. As of the date hereof and until further notice from the Non-Lead Securitization Note Holder (or the Non-Lead Master Servicer or another party acting on its behalf), the Initial Note A-2 Holder is the Non-Controlling Note Holder.
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Prior to Securitization of the Non-Lead Securitization Note (including any New Notes), all notices, reports, information or other deliverables required to be delivered to the Non-Lead Securitization Note Holder or the Non-Controlling Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the Non-Controlling Note Holder Representative and, when so delivered to the Non-Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following Securitization of the Non-Lead Securitization Note, all notices, reports, information or other deliverables required to be delivered to the Non-Lead Securitization Note Holder or the Non-Controlling Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the Non-Lead Master Servicer and the Non-Lead Special Servicer (who then may forward such items to the party entitled to receive such items as and to the extent provided in the Non-Lead Securitization Servicing Agreement) and, when so delivered to the Non-Lead Master Servicer and the Non-Lead Special Servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.
“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(c).
“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit the Servicer on behalf of the Note Holders to make such payments free of any obligation or liability for withholding.
“Non-Lead Depositor” shall mean the “depositor” under the Non-Lead Securitization Servicing Agreement.
“Non-Lead Master Servicer” shall have the meaning assigned to such term in Section 2(b).
“Non-Lead Operating Advisor” shall mean the “trust advisor”, “operating advisor” or other analogous term under the Non-Lead Securitization Servicing Agreement.
“Non-Lead Securitization Note” shall mean Note A-2.
“Non-Lead Securitization Note Holder” shall mean the Note A-2 Holder.
“Non-Lead Securitization Servicing Agreement” shall have the meaning assigned to such term in Section 2(b).
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“Non-Lead Securitization Subordinate Class Representative” shall mean the holders of the majority of the class of securities issued in the Securitization of the Non-Lead Securitization Note designated as the “controlling class” pursuant to the Non-Lead Securitization Servicing Agreement or their duly appointed representative; provided that if 50% or more of the class of securities issued in the Non-Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder”) is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, no person shall be entitled to exercise the rights of the Non-Lead Securitization Subordinate Class Representative.
“Non-Lead Securitization Trust” shall mean the Securitization Trust into which the Non-Lead Securitization Note is deposited.
“Non-Lead Special Servicer” shall have the meaning assigned to such term in Section 2(b).
“Non-Lead Trustee” shall have the meaning assigned to such term in Section 2(b).
“Note A-1” shall have the meaning assigned to such term in the recitals.
“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.
“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-1 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-1 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-2” shall have the meaning assigned to such term in the recitals.
“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.
“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-2 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-2 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note Holders” shall mean collectively, the Note A-1 Holder and the Note A-2 Holder.
“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).
“Note Register” shall have the meaning assigned to such term in Section 15.
“Notes” shall mean, collectively, Note A-1 and Note A-2.
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“Operating Advisor” shall mean Pentalpha Surveillance LLC or its successor in interest, or any successor Operating Advisor appointed as provided in the Lead Securitization Servicing Agreement.
“P&I Advance” shall mean an advance made by (a) a party to the Lead Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Lead Securitization Note or (b) a party to the Non-Lead Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Non-Lead Securitization Note.
“Percentage Interest” shall mean, (a) with respect to the Note A-1 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance, and (b) with respect to the Note A-2 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Pledge” shall have the meaning assigned to such term in Section 14(c).
“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.
“Property Advance” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.
“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other U.S. Person that is:
(a) an entity Controlled (as defined herein) by, under common Control with or that Controls either of the Initial Note Holders, or
(b) the trustee on behalf of the trust certificates issued pursuant to a master trust agreement involving a CDO comprised of, or other securitization vehicle involving, assets deposited or transferred by a Note Holder and/or one or more Affiliates (whether with assets from others or not), provided that the securities issued in connection with such CDO or other securitization vehicle are rated by each of the Rating Agencies, that
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assigned a rating to one or more classes of securities issued in connection with the Lead Securitization, or
(c) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended, or
(iii) a Qualified Trustee in connection with (a) the Lead Securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with a Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, either (x) the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or (y) Rating Agency Confirmation has been obtained from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Initial Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing
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member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (c)(i), (ii), (iii), (iv)(B) or (v) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or
(d) any entity Controlled by any of the entities described in clause (b) above or approved by the Rating Agencies hereunder as a Qualified Institutional Lender for purposes of this Agreement, or as to which the Rating Agencies have stated they would not review such entity in connection with the subject transfer.
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies.
“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably designated by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, however, that, at any time during which the Mortgage Loan is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged from time to time to rate the securities issued in connection with the Securitizations of the Notes.
“Rating Agency Confirmation” shall mean prior to a Securitization with respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any class of certificates (if then rated by the Rating Agency); provided that a written waiver or other
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acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter and after a Securitization, the meaning given thereto or any analogous term in the Lead Securitization Servicing Agreement or Non-Lead Securitization Servicing Agreement, as applicable, including any deemed Rating Agency Confirmation.
“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).
“Regulation AB” shall mean Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100 - 229.1125, as such rules may be amended from time to time, but only to the extent compliance is required as of the applicable date of determination, and subject to such clarification and interpretation as have been provided by the SEC or by the staff of the SEC, or as may be provided by the SEC or its staff from time to time.
“REMIC” shall have the meaning assigned to such term in Section 5(d).
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, either (a) the applicable replacement has a special servicer ranking of at least “MOR CS3” by Morningstar (if ranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a special servicer on a deal or transaction-level basis for all or a significant portion of the related mortgage loans in other CMBS transactions rated by any of S&P, Moody’s, Morningstar, Fitch, DBRS or KBRA and the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies that Morningstar has not, with respect to any such other CMBS transaction, qualified, downgraded or withdrawn its rating or ratings on one or more classes of such CMBS transaction citing servicing concerns of the applicable replacement as the sole or material factor in such rating action, (v) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination, and (vi) in the case of DBRS, such special servicer is currently acting as special servicer for one or more loans included in a commercial mortgage loan securitization that is rated by DBRS, and DBRS has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.
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“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors in interest.
“Scheduled Interest Payment” shall mean the scheduled payment of interest due on the Mortgage Loan on a Monthly Payment Date.
“Scheduled Principal Payment” shall mean the scheduled payment of principal due on the Mortgage Loan on a Monthly Payment Date.
“Securitization” shall mean one or more sales by a Note Holder of all or a portion of such Note to a depositor, who will in turn include such portion of such Note as part of a securitization of one or more mortgage loans.
“Securitization Date” shall mean the effective date on which the Securitization of the first Note or portion thereof is consummated.
“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which Note A-1 or Note A-2 is held.
“Securitization Vehicle” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
“Serviced Whole Loan Custodial Account” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Fee Rate” shall have the meaning given thereto in the Lead Securitization Servicing Agreement (or other analogous term under the Lead Securitization Servicing Agreement).
“Special Servicer” shall mean Rialto Capital Advisors, LLC, or its successor in interest, or any successor Special Servicer appointed as provided in the Lead Securitization Servicing Agreement and this Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Transfer” shall have the meaning assigned to such term in Section 14.
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“Trustee” shall mean Wells Fargo Bank, National Association or its successor in interest, or any successor Trustee appointed as provided in the Lead Securitization Servicing Agreement.
“UBSRES” shall have the meaning assigned to such term in the preamble to this Agreement.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which is eligible to elect to be treated as a U.S. Person).
Section 2. Servicing of the Mortgage Loan.
(a) Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced from and after the Securitization Date pursuant to the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Lead Securitization Servicing Agreement including any provisions governing the determination of non-recoverability. Each Note Holder acknowledges that the other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 26, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Operating Advisor, Certificate Administrator and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the initial Special Servicer by the Controlling Note Holder as may be replaced pursuant to the terms of the Lead Securitization Servicing Agreement and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). In no event shall the Lead Securitization Servicing Agreement require the Servicer to enforce the rights of any Note Holder against the other Note Holder or limit the Servicer in enforcing the rights of one Note Holder against the other Note Holder; however, this statement shall not be construed to otherwise limit the rights of
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one Note Holder with respect to the other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, shall provide information to each Servicer under the Non-Lead Securitization Servicing Agreement to enable each such Servicer to perform its servicing duties under the Non-Lead Securitization Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
At any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if the Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan, by the Servicer in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a qualified servicer meeting the requirements of the Lead Securitization Servicing Agreement.
(b) The Master Servicer shall be the master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) (i) shall be required to make Property Advances with respect to the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, and (ii) may be required to make P&I Advances on the Lead Securitization Note, if and to the extent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for a Property Advance, first from funds on deposit in the Collection Account or Serviced Whole Loan Custodial Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Property Advances, if such funds on deposit in the Collection Account or Serviced Whole Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement and from general collections of the Non-Lead Securitization as provided below. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for Advance Interest Amounts on a Property Advance or a Nonrecoverable Property Advance, in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization and, in the case of Property Advances, from general collections of the Non-Lead Securitization as provided below. To the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Advance or any Advance Interest Amounts on a Property Advance or a Nonrecoverable Property Advance, the Non-Lead Securitization Note Holder (including from general collections or any other amounts from any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master
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Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Property Advance or Advance Interest Amounts.
In addition, the Non-Lead Securitization Note Holder (including, but not limited to, any Non-Lead Securitization Trust) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for the Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Depositor, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement and any costs, fees and expenses related to obtaining any Rating Agency Confirmation, to the extent amounts on deposit in the Collection Account or Serviced Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts and to the extent that funds from general collections in the Lead Securitization are applied towards the Lead Securitization Note Holder’s pro rata share of the insufficiency. The Non-Lead Securitization Holder agrees to indemnify (i) (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the Depositor (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) and (ii) the Lead Securitization Trust (such parties in clause (i) and the Lead Securitization Trust, collectively, the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property (or, with respect to the Operating Advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Collection Account or Serviced Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency, (including, if the Non-Lead Securitization Note has been included in a Non-Lead Securitization, from general collections or any other amounts from such Non-Lead Securitization Trust).
The master servicer under the non-lead Securitization (the “Non-Lead Master Servicer”) may be required to make P&I Advances on the Non-Lead Securitization Note, from time to time, subject to the terms of the servicing agreement for the related Securitization (the “Non-Lead Securitization Servicing Agreement”) and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. The Non-Lead Master Servicer and the special servicer and the trustee under the Non-Lead Securitization Servicing Agreement (respectively, the “Non-Lead Special
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Servicer” and the “Non-Lead Trustee”), as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Non-Lead Securitization Note based on the information that they have on hand and in accordance with the Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and the Non-Lead Master Servicer or the Non-Lead Trustee shall be required to notify the other of the amount of its P&I Advance within two business days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or the Non-Lead Master Servicer, Non-Lead Special Servicer or the Non-Lead Trustee, as applicable (with respect to the Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Property Advance would be non-recoverable or an outstanding Property Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the Non-Lead Master Servicer or the Non-Lead Trustee (as provided in the Non-Lead Securitization Servicing Agreement, in the case of the a determination of non-recoverability by the Non-Lead Master Servicer, the Non-Lead Special Servicer or the Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the Non-Lead Master Servicer and the Non-Lead Trustee, as the case may be, of the other Securitization within two business days of making such determination. Each of the Master Servicer, the Trustee, the Non-Lead Master Servicer and the Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance and advance interest thereon that becomes non-recoverable first from the Collection Account or Serviced Whole Loan Custodial Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of the Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the Non-Lead Securitization Servicing Agreement.
(c) The Non-Lead Securitization Note Holder agrees that, if the Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) the Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Property Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Property Advances or additional trust fund expenses, (A) the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Property
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Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property), and (B) if the Lead Securitization Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general account, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for the Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Property Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement and, in the case of the Lead Securitization Trust, to the extent of any additional trust fund expenses with respect to the Mortgage Loan) by the Non-Lead Securitization Trust, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Collection Account or Serviced Whole Loan Custodial Account that are allocated to the Non-Lead Securitization Note are insufficient for reimbursement of such amounts, the Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the Non-Lead Securitization Note’s pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement;
(iii) the Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following Securitization of the Non-Lead Securitization Note, notice of the deposit of the Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the trustee, the certificate administrator, the Non-Lead Master Servicer, the special servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information);
(iv) any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Lead
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Securitization Servicing Agreement shall also require delivery of a Rating Agency Confirmation under the Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(d) The Lead Securitization Servicing Agreement shall provide that compensating interest payments as defined therein with respect to Note A-1 and Note A-2 will be allocated by the Master Servicer between Note A-1 and Note A-2, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of the Non-Lead Securitization Note to the Non-Lead Securitization Note Holder.
Section 3. Priority of Payments. Each Note shall be of equal priority, and no portion of either Note shall have priority or preference over any portion of the other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent, in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Property Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement and (y) all amounts that are then due, payable or reimbursable (except for (i) any reimbursements of P&I Advances (and interest thereon) made with respect to Note A-1 or Note A-2 which may only be reimbursed out of payments and collections allocable to Note A-1 or Note A-2, as applicable, (ii) any Servicing Fees due to the Master Servicer in excess of the Non-Lead Securitization Note’s pro rata share of that portion of such Servicing Fees calculated at the Servicing Fee Rate applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement) to any Servicer (or the Trustee as successor to the Servicer), with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement (including without limitation, any additional trust fund expenses relating to the Mortgage Loan (but subject to second paragraph of Section 5(d) hereof) and any Special Servicing Fees, Liquidation Fees, Workout Fees, Penalty Charges (to the extent provided in the immediately following paragraph), amounts paid by the Borrower in respect of modification fees or assumption fees and any other additional compensation payable pursuant to the Lead Securitization Servicing Agreement), shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis.
For clarification purposes, Penalty Charges (as defined in the Lead Securitization Servicing Agreement) paid shall be allocated to the Notes on a Pro Rata and Pari Passu Basis and applied first, to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued
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on any Property Advances and reimbursement of any Property Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, Non-Lead Master Servicer or Non-Lead Trustee for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or the Non-Lead Securitization Servicing Agreement, as applicable), third, to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay additional trust fund expenses (other than Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, (i) in the case of the remaining amount of Penalty Charges allocable to the Lead Securitization Note, be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement and (ii) in the case of the remaining amount of Penalty Charges allocable to the Non-Lead Securitization Note, be paid, to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement.
Section 4. Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement, and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including but not limited to Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and the Non-Lead Securitization Note Holder shall have no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, the Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder
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to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).
Upon the Mortgage Loan becoming a Defaulted Mortgage Loan, the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Note together with the Lead Securitization Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell the Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Mortgage Loan without the written consent of the Non-Controlling Note Holder (provided that such consent is not required if the Non-Controlling Note Holder is the Mortgage Loan Borrower or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to the Non-Controlling Note Holder: (a) at least 15 Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in
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connection with any such proposed sale, (c) at least 10 days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by the Non-Controlling Note Holder that are material to the price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided, that such Non-Controlling Note Holder may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holder and the Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower.
The Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of Non-Lead Securitization Note. The Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, the Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.
The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Note, and the obligations of the Non-Lead Securitization Note Holder to execute and delivery instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Securitization Note is repurchased by the Initial Note A-1 Holder from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by Initial Note A-1 Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by Initial Note A-1 Holder or any document delivery obligation imposed on Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by Initial Note A-1 Holder in connection with the Lead Securitization.
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing
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Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of both Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without the Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to their rights as specifically provided for therein.
(c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Controlling Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, to the extent provided in the Lead Securitization Servicing Agreement, the right to (1) consent and/or consult regarding Major Decisions and other servicing matters, (2) advise (a) the Special Servicer with respect to all Specially Serviced Loans and (b) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and (3) direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement.
(d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by the
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Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or Special Servicer, acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or the Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or the Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).
In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, the Non-Controlling Note Holder shall have the right to attend annual meetings (either telephonically or in person, in the discretion of the Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed; provided that the Non-Controlling Note Holder, at the request of the Master Servicer or the Special Servicer, as applicable, shall execute a confidentiality agreement in form and substance satisfactory to it, the Master Servicer or the Special Servicer, as applicable, and the Lead Securitization Note Holder.
(e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure
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property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan.
Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, in the event that one of the Notes is included in a REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holder be reduced to offset or make-up any such payment or deficit.
Section 6. Appointment of Controlling Note Holder Representative and Non-Controlling Note Holder Representative.
(a) The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative in accordance with the terms of the Lead Securitization Servicing Agreement. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. No Servicer, Operating Advisor, Trustee or Certificate Administrator acting on behalf of the Lead Securitization Note Holder shall be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified each Servicer, Operating Advisor, Trustee and Certificate Administrator of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides each Servicer, Operating Advisor, Trustee and Certificate Administrator with written
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confirmation of its acceptance of such appointment, an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and facsimile numbers). The Controlling Note Holder shall promptly deliver such information to each Servicer, Operating Advisor, Trustee and Certificate Administrator. So long as no Consultation Termination Event (including any such deemed event) is in effect pursuant to the terms of the Lead Securitization Servicing Agreement, the Controlling Note Holder Representative shall be the Lead Securitization Subordinate Class Representative.
(b) Neither the Controlling Note Holder Representative nor the Controlling Note Holder will have any liability to the other Note Holders or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over the other Note Holder, and that the Controlling Note Holder Representative may have special relationships and interests that conflict with the interests of a Note Holder and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
(c) The Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Non-Controlling Note Holder Representative”). All of the provisions relating to Controlling Note Holder and the Controlling Note Holder Representative set forth in Section 6(a) (except those contained in the last sentence thereof) and Section 6(b) shall apply to the Non-Controlling Note Holder and the Non-Controlling Note Holder Representative mutatis mutandis. The Non-Controlling Note Holder Representative, as of the date of this Agreement and until the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) is notified otherwise, shall be the Initial Note A-2 Holder.
(d) The Controlling Note Holder shall be entitled to exercise the rights and powers granted to the Lead Securitization Note hereunder and the rights and powers granted to the “Controlling Class Representative” or similar party under, and as defined in, the Lead Securitization Servicing Agreement with respect to the Mortgage Loan. In addition, the Controlling Note Holder shall be entitled to advise (1) the Special Servicer with respect to all
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matters related to a “Specially Serviced Loan” (as defined in the Lead Securitization Servicing Agreement) and (2) the Special Servicer with respect to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and, except as set forth below (i) the Master Servicer shall not be permitted to implement any Major Decision unless it has obtained the prior written consent of the Special Servicer and (ii) the Special Servicer shall not be permitted to consent to the Master Servicer’s implementing any Major Decision nor will the Special Servicer itself be permitted to implement any Major Decision as to which the Controlling Note Holder has objected in writing within ten (10) Business Days (or 30 days with respect to an Acceptable Insurance Default if so provided for in the Lead Securitization Servicing Agreement) after receipt of the written recommendation and analysis and such additional information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment with respect to such Major Decision. The Controlling Note Holder may also direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Note Holder may deem advisable.
If the Controlling Note Holder fails to notify the Special Servicer of its approval or disapproval of any proposed Major Decision within ten (10) Business Days (or 30 days with respect to an Acceptable Insurance Default if so provided in the Lead Securitization Servicing Agreement) after delivery to the Controlling Note Holder by the applicable Servicer of written notice of a proposed Major Decision (which notice shall contain a legend, in conspicuous boldface type, substantially similar to the following: “THIS IS A REQUEST FOR ACTION APPROVAL. IF THE CONTROLLING NOTE HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED ACTION WITHIN TEN (10) BUSINESS DAYS (OR IN CONNECTION WITH AN ACCEPTABLE INSURANCE DEFAULT TWENTY (20) DAYS), SUCH ACTION MAY BE DEEMED APPROVED”) together with any information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment, then upon the expiration of such ten (10) Business Day (or 30 days with respect to an Acceptable Insurance Default if so provided in the Lead Securitization Servicing Agreement) period, such Major Decision shall be deemed to have been approved by the Controlling Note Holder.
In the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by the Lead Securitization Servicing Agreement to take such action), as applicable, determines that immediate action, with respect to the foregoing matters, or any other matter requiring consent of the Controlling Note Holder is necessary to protect the interests of the Note Holders (as a collective whole) and the Special Servicer has made a reasonable effort to contact the Controlling Note Holder, the Master Servicer or the Special Servicer, as the case may be, may take any such action without waiting for the Controlling Note Holder’s response.
No objection, direction consent or advice contemplated by the preceding paragraphs may require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of the Mortgage Loan Documents, applicable law, the Lead Securitization Servicing Agreement, this Agreement, the REMIC provisions of the Code or the Master Servicer or Special Servicer’s obligation to act in accordance with the Servicing Standard or materially
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expand the scope of responsibilities of any of the Master Servicer or Special Servicer, as applicable.
The Controlling Note Holder shall have no liability to the other Note Holders or any other party for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over the other Note Holder, and that the Controlling Note Holder may have special relationships and interests that conflict with the interests of another Note Holder and, absent willful misconduct, bad faith or gross negligence on the part of the Controlling Note Holder agree to take no action against the Controlling Note Holder or any of its officers, directors, employees, principals or agents as a result of such special relationships or interests, and that the Controlling Note Holder shall not be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
Section 7. Appointment of Special Servicer. Subject to the terms of the Lead Securitization Servicing Agreement, the Controlling Note Holder (or its Controlling Note Holder Representative) shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to the other Note Holder, the Master Servicer, the then existing Special Servicer and other parties to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Confirmation, if required by the terms of the Lead Securitization Servicing Agreement), if any. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects the Non-Controlling Note Holder, the Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement (or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the successor servicing agreement pursuant to which the Mortgage Loan is being
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serviced) solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement (or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the successor servicing agreement pursuant to which the Mortgage Loan is being serviced). The Controlling Note Holder and the Non-Controlling Note Holder acknowledge and agree that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at the Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of the Non-Controlling Note Holder. The Non-Controlling Note Holder shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Collection Account or Serviced Whole Loan Custodial Account .
Section 8. Payment Procedure.
(a) The Lead Securitization Note Holder, in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, will deposit or cause to be deposited all payments allocable to the Notes to the Collection Account or Serviced Whole Loan Custodial Account pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer acting on its behalf) shall deposit such amounts to the applicable account within two (2) Business Days after receipt of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.
(b) If the Lead Securitization Note Holder determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Lead Securitization Note Holder, the Non-Lead Securitization Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Note Holder shall not be required to distribute any portion thereof to the Non-Lead Securitization Note Holders and the Non-Lead Securitization Note Holders will promptly on demand by the Lead Securitization Note Holder repay to the Lead Securitization Note Holder any portion thereof that the Lead Securitization Note Holder shall have theretofore distributed to the Non-Lead Securitization Note Holder, together with interest thereon at such rate, if any, as the Lead Securitization Note Holder shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Lead Securitization Note Holder makes any payment to the Non-Lead Securitization Note Holder before the Lead Securitization Note Holder has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder does not receive the corresponding payment within five (5) Business Days of its payment to the Non-Lead Securitization Note Holder, the Non-Lead Securitization Note Holder
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shall, at the Lead Securitization Note Holder’s request, promptly return that payment to the Lead Securitization Note Holder.
(d) Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from the Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to the Non-Lead Securitization Note Holder under the Mortgage Loan. Such Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Note Holders. Each Note Holder shall have no liability to the other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder.
The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of the Non-Lead Securitization Note Holder and that the Lead Securitization Note Holder (including any Servicer and the Trustee) shall have no liability whatsoever to the Non-Lead Securitization Note Holder in connection with the Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard.
Section 10. Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not the Non-Lead Securitization Note Holder, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Non-Lead Securitization Note Holder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other
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Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note Holders hereby agree that, upon the request of the Lead Securitization Note Holder, the Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.
Section 11. Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
Section 12. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. Neither Note Holder shall have any obligation whatsoever to offer to the other Note Holder the opportunity to purchase a participation interest in any future loans originated by such Note Holder or its Affiliates and if either Note Holder chooses to offer to the other Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by such Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as such Note Holder chooses, in its sole and absolute discretion. Neither Note Holder shall have any obligation whatsoever to purchase from the other Note Holder a participation interest in any future loans originated by such Note Holder or its Affiliates.
Section 13. Other Business Activities of the Note Holders. Each Note Holder acknowledges that the other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any
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Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 14. Sale of the Notes.
(a) Each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, participate, hypothecate, contribute, encumber or otherwise dispose (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 14(d)) of a Note (a “Transfer”) except to a Qualified Institutional Lender. Promptly after the Transfer, the non-transferring Note Holder shall be provided with (x) a representation from a transferee or the applicable Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer to a Securitization (and the related pooling and servicing or similar agreement requires the parties thereto to comply with this Agreement) or in accordance with the immediately following sentence) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first obtain (x) prior to a Securitization, the consent of the non-transferring Note Holder or (2) after a Securitization of such non-transferring Note Holder’s Note, Rating Agency Confirmation. Notwithstanding the foregoing, without the non-transferring Note Holder’s prior written consent (which will not be unreasonably withheld), and, if such non-transferring Note Holder’s Note is held in a Securitization Trust, without Rating Agency Confirmation, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Note Holder agrees that it will pay the expenses of the non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer and the Trustee) and all expenses relating to the confirmation from the Rating Agencies in connection with any such Transfer. Notwithstanding the foregoing, each Note Holder shall have the right, without the need to obtain the consent of the other Note Holder, the Rating Agencies or any other Person, to Transfer 49% or less (in the aggregate) of its Note or any beneficial interest in its Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of Note A-1 together with Note A-2, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.
For the purposes of this Agreement, if any Rating Agency shall, in writing, waive, decline or refuse to review or otherwise engage any request for a confirmation hereunder from such Rating Agency that a proposed action will not result in a qualification, downgrade or
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withdrawal of its then current rating of the securities issued pursuant to the related Securitization, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that such confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for such confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for such Rating Agency confirmation hereunder and the condition for such Rating Agency confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
(b) In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.
(c) Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent (or higher) from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to the other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), the other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to the other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Note Holder and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any
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applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases the other Note Holder and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(d) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Note Holder then such Note Holder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) The loan (the “Conduit Inventory Loan”) made by the Conduit to such Note Holder to finance the acquisition and holding of its Note requires a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) The Conduit Credit Enhancer is a Qualified Institutional Lender;
(iii) Such Note Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) The Conduit Credit Enhancer and the Conduit agree that, if such Note Holder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Note Holder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Note Holder’s Note to the Conduit Credit Enhancer; and
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(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
Section 15. Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note Holder is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of the other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.
In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and the other Note Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.
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Section 16. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 17. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 18. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the Note A-1 Holder and the Note A-2 Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first receiving a Rating Agency Confirmation; provided that no such confirmation from the Rating Agencies shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any
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provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement, (ii) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement or (iii) if and to the extent the it would be deemed given or not required pursuant to the definition of Rating Agency Confirmation in the Lead Securitization Servicing Agreement and/or the Non-Lead Securitization Servicing Agreement, as applicable.
Section 19. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer, Special Servicer, Non-Lead Master Servicer, Non-Lead Special Servicer, Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder.
Section 20. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 21. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 22. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 24. Withholding Taxes. (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to the Non-Lead Securitization Note Holder with respect to the Mortgage Loan as a result of the Non-Lead Securitization Note Holder constituting a Non-Exempt Person, the Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to the Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish the Non-Lead Securitization Note Holder with a
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statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.
(b) The Non-Lead Securitization Note Holder shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made to the Non-Lead Securitization Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by the Non-Lead Securitization Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to Non-Lead Securitization Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) the Non-Lead Securitization Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.
(c) The Non-Lead Securitization Note Holder represents to the Lead Securitization Note Holder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, the Non-Lead Securitization Note Holder shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if the Non-Lead Securitization Note Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if the Non-Lead Securitization Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any
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payment hereunder with respect to the Non-Lead Securitization Note or otherwise until the Non-Lead Securitization Note Holder shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.
Section 25. Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than the Non-Lead Securitization Note) (a) prior to the Lead Securitization will be held by the Initial Agent and (b) after the Lead Securitization, will be held by the Lead Securitization Note Holder (in the name of the Trustee and held by a duly appointed custodian therefor in accordance with the Lead Securitization Servicing Agreement), in each case, on behalf of the registered holders of the Notes.
Section 26. Cooperation in Securitization.
(a) Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization of the Lead Securitization Note and subject to the terms of the preceding sentence, at the request of the Lead Securitization Note Holder, the Non-Lead Securitization Note Holder shall use reasonable efforts, at Lead Securitization Note Holder’s expense, to satisfy, and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which the Lead Securitization Note Holder customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect the Securitization of the Lead Securitization Note; provided, however, that either in connection with the Lead Securitization or otherwise at any time prior to the Lead Securitization, the Non-Lead Securitization Note Holder shall not be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, the Non-Lead Securitization Note Holder or (ii) materially increase the Non-Lead Securitization Note Holders’ obligations or materially decrease the Non-Lead Securitization Note Holders’ rights, remedies or protections. In connection with the Lead Securitization, Non-Lead Securitization Note Holder agrees to provide for inclusion in any disclosure document relating to the Lead Securitization such information concerning the Non-Lead Securitization Note Holder and the Non-Lead Securitization Note as the Lead Securitization Note Holder reasonably determines to be necessary or appropriate, and the Non-Lead Securitization Note Holder covenants and agrees that it shall, at the Lead Securitization Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and Lead Securitization Note Holder in connection with the Lead Securitization (including, without limitation, reasonably cooperating with the Lead Securitization Noteholder (without any obligation to make additional representations and warranties) to enable the Lead Securitization Noteholder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and the Lead Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any
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information relating to the Non-Lead Securitization Note Holder and the Non-Lead Securitization Note in any Securitization document. The Non-Lead Securitization Note Holder acknowledges that the information provided by it to the Lead Securitization Note Holder may be incorporated into the offering documents for the Lead Securitization. The Lead Securitization Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, the Non-Lead Securitization Note Holder. The Lead Securitization Note Holder will reasonably cooperate with the Non-Lead Securitization Note Holder, at the Non-Lead Securitization Note Holders’ expense, by providing all information reasonably requested that is in the Lead Securitization Note Holder’s possession in connection with the Non-Lead Securitization Note Holders’ preparation of disclosure materials in connection with a Securitization.
Upon request, the Lead Securitization Note Holder shall deliver to the Non-Lead Securitization Note Holder drafts of the preliminary and final Lead Securitization offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the Lead Securitization Servicing Agreement and provide reasonable opportunity to review and comment on such documents.
Section 27. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
Section 28. Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.
Section 29. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Note Holder pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action
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taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 15;
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder; and
(g) The Agent represents and warrants that it is a Qualified Institutional Lender.
Section 30. Termination and Resignation of Agent.
(a) Subject to the provisions of sub-paragraph (b) below, the Agent may be terminated at any time upon ten (10) days prior written notice from the Senior Noteholder. In the event that the Agent is terminated pursuant to this Section 30, all of its rights and obligations under this Agreement shall be terminated, other than any rights or obligations that accrued prior to the date of such termination.
(b) The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. UBSRES, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of the Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of UBSRES without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement.
Section 31. Resizing. Notwithstanding any other provision of this Agreement, for so long as UBSRES or an affiliate thereof (a “UBS Entity”) is the owner of the Non-Lead Securitization Note (the “Owned Note”), such UBS Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of the Owned Note to such New Notes; or severing the Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of the Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of the Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the
42 |
terms of this Agreement, (iv) the UBS Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes does not violate the Servicing Standard. If the Lead Securitization Note Holder so requests, the UBS Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of the other Note. In connection with the foregoing (provided the conditions set forth in (i) through (v) above are satisfied, with respect to (i) through (iv), as certified by the UBS Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal. If more than one New Note is created hereunder, for purposes of exercising the rights of the Non-Controlling Note Holder hereunder, the “Non-Controlling Note Holder” of such New Notes shall be as provided in the definition of such term in this Agreement.
[SIGNATURE PAGE FOLLOWS]
43 |
IN WITNESS WHEREOF, the Initial Note Holders have caused this Agreement to be duly executed as of the day and year first above written.
UBS REAL ESTATE SECURITIES INC., a | ||
Delaware corporation, as Initial Note A-1 Holder | ||
By: | /s/ David Schell | |
Name: David Schell | ||
Title: Executive Director | ||
By: | /s/ Siho Ham | |
Name: Siho Ham | ||
Title: Director | ||
UBS REAL ESTATE SECURITIES INC., a | ||
Delaware corporation, as Initial Note A-2 Holder | ||
By: | /s/ David Schell | |
Name: | ||
Title: | ||
By: | /s/ Siho Ham | |
Name: Siho Ham | ||
Title: Director |
(Co-Lender Agreement – The Mall of New Hampshire)
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Description of Mortgage Loan
Mortgage Loan Borrower: | MNH Mall L.L.C. and Mall of New Hampshire Best Buy L.P. |
Date of Mortgage Loan: | June 25, 2015 |
Date of Notes: | June 25, 2015 |
Original Principal Amount of Mortgage Loan: | $150,000,000.00 |
Principal Amount of Mortgage Loan as of the date hereof: | $150,000,000.00 |
Initial Note A-1 Principal Balance: | $100,000,000.00 |
Initial Note A-2 Principal Balance: | $50,000,000.00 |
Location of Mortgaged Property: | 1500 South Willow Street, Manchester, New Hampshire 03103 |
Initial Maturity Date: | July 1, 2025 |
A-1 |
EXHIBIT B
1. Initial Note A-1 Holder:
(Prior to Securitization of Note A-1):
UBS Real Estate Securities Inc.
Notice Address:
UBS Real Estate Securities Inc.
1285 Avenue of the Americas, 8th Floor
New York, New York 10119
Attention: Transaction Management – Henry Chung
Telecopy number: (212) 821-2943
E-mail: henry.chung@ubs.com
with copies to:
UBS Securities LLC
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
E-mail: chad.eisenberger@ubs.com, and
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, New York 10281
Attention: Frank Polverino
Telecopy number: (212) 504-6666
E-mail: frank.polverino@cwt.com
B-1 |
(Following Securitization of Note A-1):
(i) Depositor:
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
Telecopy number: (212) 322-0965
E-mail: chuck.lee@credit-suisse.com
with a copy to:
Credit Suisse, Commercial Real Estate & CMBS
One Madison Ave, 9th Floor
New York, New York 10010
Attention: Sarah Nelson
Telecopy number: (212) 743-2826
E-mail: sarah.nelson@credit-suisse.com
(ii) Master Servicer:
Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President – Division Head,
Telecopy number: (913) 253-9001
Email: NoticeAdmin@midlandls.com
with a copy to:
Stinson Leonard Street LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106-2150
Attention: Kenda K. Tomes
Telecopy number: (816) 412-9338
Email: ‘kenda.tomes@stinsonleonard.com
(iii) Special Servicer:
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Liat Heller
Telecopy number: (305) 229-6425
E-mail: liat.heller@rialtocapital.com
B-2 |
with copies to:
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Jeff Krasnoff
Telecopy Number: (305) 229-6425
E-mail: jeff.krasnoff@rialtocapital.com,
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Niral Shah
Telecopy Number: (305) 229-6425
E-mail: niral.shah@rialtocapital.com, and
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Adam Singer
Telecopy Number: (305) 229-6425
E-mail: adam.singer@rialtocapital.com
(iv) Trustee:
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services – CSAIL 2015-C3
(v) Certificate Administrator:
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CSAIL 2015-C3
Telecopy Number: (410) 715-2380
E-Mail: cts.cmbs.bond.admin@wellsfargo.com, and to trustadministrationgroup@wellsfargo.com, except as otherwise set forth herein
B-3 |
(vi) Operating Advisor:
Pentalpha Surveillance LLC
375 N. French Road, Suite 100
Amherst, New York 14228
Attention: Don Simon, Chief Operating Officer
Email: don.simon@pentalphasurveillance.com
with copies to:
Bass, Berry & Sims PLC
150 Third Avenue South
Nashville, Tennessee 37201
Attention: Jay H. Knight
Email: jknight@bassberry.com
B-4 |
2. Initial Note A-2 Holder:
UBS Real Estate Securities Inc.
Notice Address:
UBS Real Estate Securities Inc.
1285 Avenue of the Americas, 8th Floor
New York, New York 10119
Attention: Transaction Management – Henry Chung
Telecopy number: (212) 821-2943
E-mail: henry.chung@ubs.com
with copies to:
UBS Securities LLC
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
E-mail: chad.eisenberger@ubs.com, and
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, New York 10281
Attention: Frank Polverino
Telecopy number: (212) 504-6666
E-mail: frank.polverino@cwt.com
B-5 |
EXHIBIT C
PERMITTED FUND MANAGERS
1. | DLJ Real Estate Capital Partners |
2. | iStar Financial Inc. |
3. | Capital Trust |
4. | Lend-Lease Real Estate Investments |
5. | Archon Capital, L.P. |
6. | Whitehall Street Real Estate Fund, L.P. |
7. | The Blackstone Group International Ltd. |
8. | Apollo Real Estate Advisors |
9. | Colony Capital, Inc. |
10. | Praedium Group |
11. | J.E. Robert Companies |
12. | Fortress Investment Group LLC |
13. | Lonestar Opportunity Fund |
14. | Clarion Partners |
15. | Walton Street Capital, LLC |
16. | Starwood Financial Trust |
17. | BlackRock, Inc. |
18. | Raith Capital Partners, LLC |
19. | Rialto Capital Management, LLC |
C-1 |
Exhibit 4.7
EXECUTION VERSION
AGREEMENT BETWEEN NOTEHOLDERS
Dated as of September 24, 2015
by and between
UBS REAL ESTATE SECURITIES INC.
(Senior Noteholder)
and
UBS REAL ESTATE SECURITIES INC.
(Junior Noteholder)
200 Helen Street
THIS AGREEMENT BETWEEN NOTEHOLDERS (“Agreement”), dated as of September 24, 2015 by and between UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as initial owner of the Senior Note, the “Initial Senior Noteholder”, and in its capacity as the initial agent, the “Initial Agent”) and UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as initial owner of the Junior Note, the “Initial Junior Noteholder”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage (as defined herein) the Initial Senior Noteholder originated a certain loan described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) (the “Mortgage Loan”) to the mortgage loan borrower(s) described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which is evidenced, inter alia, by two promissory notes (as amended, modified or supplemented, the “Notes”), each dated July 24, 2015, with the first such note in the original principal amount of $41,500,000.00 (the “Senior Note”) made by the Mortgage Loan Borrower in favor of the Initial Senior Noteholder, and the second such note in the original principal amount of $10,000,000.00 (the “Junior Note”) made by the Mortgage Loan Borrower in favor of the Initial Junior Noteholder, and secured by certain first mortgages or deeds of trust lien (as amended, modified or supplemented, the “Mortgage”) on one or more parcels of, or estates in, real property located as described on the Mortgage Loan Schedule (collectively, the “Mortgaged Property”); and
WHEREAS, the Initial Senior Noteholder and the Initial Junior Noteholder desire to enter into this Agreement to memorialize the terms under which the Initial Senior Noteholder and the Initial Junior Noteholder are holding the Senior Note and the Junior Note, respectively, in the Mortgage Loan.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Additional Servicing Expenses” shall mean (a) all Servicing Advances, fees and/or expenses incurred by and reimbursable to any Servicer, Trustee, Securitization Operating Advisor, Certificate Administrator or fiscal agent pursuant to the Servicing Agreement, and (b) all interest accrued on Advances made by any Servicer, Trustee or fiscal agent in accordance with the terms of the Servicing Agreement; provided that the aggregate special servicing administration fee (which fee is payable solely during the period that the Mortgage Loan is a Specially Serviced Mortgage Loan) shall not exceed an amount equal to 1.0% per annum of the outstanding principal balance of the Mortgage Loan, the special servicing liquidation fee (or equivalent) shall not exceed 1.0% of the collections made with respect to the Mortgage Loan or any sums received from proceeds from the disposition of the Mortgaged Property or the
Mortgage Loan, as the case may be, and the special servicing workout fee (or equivalent) shall not exceed 1.0% of the collections made with respect to the Mortgage Loan while the Mortgage Loan is a performing or “corrected” loan (or such other analogous term pursuant to the Servicing Agreement).
“Advance Interest Amount” shall mean interest payable on Advances, as specified in the Servicing Agreement.
“Advance Interest Rate” shall have the meaning assigned to the term “Advance Rate” or such other analogous term used in the Servicing Agreement.
“Advances” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
“Affiliate” shall mean with respect to any specified Person (i) any other Person that Controls, Controlling or is Controlled by or under common Control with such specified Person (each a “Common Control Party”), (ii) any other Person owning, directly or indirectly, ten percent (10%) or more of the beneficial interests in such Person or (iii) any other Person in which such Person or a Common Control Party owns, directly or indirectly, ten percent (10%) or more of the beneficial interests.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and from and after the Securitization Date shall mean the Certificate Administrator, if any, and if there is no Certificate Administrator, shall mean the Trustee.
“Agent Office” shall mean the designated office of the Agent in the State of New York, which office at the date of this Agreement is located at UBS Real Estate Securities Inc., 1285 Avenue of the Americas, New York, New York, Attention: David Schell, Email address: david.schell@ubs.com, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Noteholders.
“Agreement” shall mean this Agreement Between Noteholders, the exhibits and schedule hereto and all amendments hereof and supplements hereto.
“Appraisal” shall have the meaning assigned to such term or such other analogous term used in the Servicing Agreement.
“Appraisal Reduction Amount” shall have the meaning assigned to the term “Appraisal Reduction” or such other analogous term used in the Servicing Agreement.
“Asset Status Report” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
“Balloon Payment” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.
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“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“Business Day” shall have the meaning assigned to such term in the Servicing Agreement.
“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity which is responsible for managing or administering the Junior Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of the Junior Note).
“Certificate Administrator” shall mean the certificate administrator under the Securitization Servicing Agreement, if any.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collection Account” shall mean the trust account or accounts (including any sub-accounts) created and maintained by the Servicer.
“Conduit” shall have the meaning assigned to such term in Section 19(f).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 19(f).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 19(f).
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise; provided that, for purposes of the definition of “Qualified Institutional Lender” as used in this Agreement, “Control” shall also require the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity. “Controlled” and “Controlling” each have the meaning correlative thereto.
“Control Appraisal Period” A “Control Appraisal Period” shall exist with respect to the Mortgage Loan, if and for so long as:
(a) (1) the initial Junior Note Principal Balance minus (2) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received on, the Junior Note after the date of creation of the Junior Note, (y) any Appraisal Reduction Amount for the Mortgage Loan that is allocated to the Junior Note and (z) any losses realized with respect to any Mortgaged Property or the Mortgage Loan that are allocated to the Junior Note, is less than
(b) 25% of the remainder of the (i) initial Junior Note Principal Balance less (ii) any payments of principal (whether as principal prepayments or otherwise) allocated
3 |
to, and received by, the Junior Noteholder on the Junior Note after the date of creation of the Junior Note.
“Controlling Noteholder” shall mean as of any date of determination (i) the Junior Noteholder, unless a Control Appraisal Period has occurred and is continuing or (ii) if a Control Appraisal Period has occurred and is continuing, the Senior Noteholder; provided that, if the Junior Noteholder would be the Controlling Noteholder pursuant to the terms hereof, but any interest in the Junior Note is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Controlling Noteholder, a Control Appraisal Period shall be deemed to have occurred. If a Control Appraisal Period has occurred and any interest in the Senior Note is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Senior Note as Controlling Noteholder, the rights of the Controlling Noteholder shall be deemed null and void and no Mortgage Loan Borrower or Mortgage Loan Borrower Related Party shall be entitled to exercise such rights. As of the Closing Date, the Controlling Noteholder will be the Junior Noteholder.
“Cure Period” shall have the meaning assigned to such term in Section 11(a).
“DBRS” shall mean DBRS, Inc., and its successors in interest.
“Defaulted Mortgage Loan Purchase Price” shall mean the sum, without duplication, of (a) the Principal Balance of the Senior Note, (b) accrued and unpaid interest thereon at the Senior Note Rate, from the date as to which interest was last paid in full by Mortgage Loan Borrower up to and including the end of the interest accrual period relating to the Monthly Payment Date next following the date the purchase occurred, (c) any other amounts due under the Mortgage Loan, other than Prepayment Premiums, default interest, late fees, exit fees and any other similar fees, provided that if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser, the Defaulted Mortgage Loan Purchase Price shall include Prepayment Premiums, default interest, late fees, exit fees and any other similar fees, (d) without duplication of amounts under clause (c), any unreimbursed property protection or servicing Advances and any expenses incurred in enforcing the Mortgage Loan Documents (including, without limitation, servicing Advances payable or reimbursable to any Servicer, and earned and unreimbursed special servicing fees), (e) without duplication of amounts under clause (c), any accrued and unpaid Advance Interest Amount, (f) (i) if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser or (ii) if the Mortgage Loan is purchased after ninety (90) days after the first such option becomes exercisable pursuant to Section 12 of this Agreement, any liquidation or workout fees payable under the Securitization Servicing Agreement with respect to the Mortgage Loan and (g) any Recovered Costs not reimbursed previously to the Senior Note pursuant to this Agreement. Notwithstanding the foregoing, if the Junior Noteholder is purchasing from the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, the Defaulted Mortgage Loan Purchase Price shall not include the amounts described under clauses (d) through (f) of this definition. If the Mortgage Loan is converted into a REO Property, for purposes of determining the Defaulted Mortgage Loan Purchase Price, interest will be deemed to continue to accrue at the Senior Note Rate on the Senior Note Principal Balance, as if the Mortgage Loan were not so converted. In no event shall
4 |
the Defaulted Mortgage Loan Purchase Price include amounts due or payable to the Junior Noteholder under this Agreement.
“Defaulted Note Purchase Date” shall have the meaning assigned to such term in Section 12.
“Default Interest” shall mean interest on the Mortgage Loan at a rate per annum equal to the Note Default Interest Spread.
“Depositor” shall mean the Person selected by the Senior Noteholder to create the Securitization Trust.
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Documents.
“Final Recovery Determination” shall have the meaning assigned to such term in the Servicing Agreement.
“Fitch” shall mean Fitch, Inc., and its successors in interest.
“Grace Period” shall have the meaning assigned to such term in Section 11(a).
“Guarantor” shall have the meaning assigned to such term in the Mortgage Loan Documents.
“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Junior Noteholder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Noteholders” shall mean, collectively, the Initial Junior Noteholder and the Initial Senior Noteholder.
“Initial Senior Noteholder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided, however, that following any such permitted
5 |
transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.
“Insurance and Condemnation Proceeds” shall have the meaning assigned to such term or any one or more analogous terms in the Servicing Agreement.
“Interest Rate” shall mean the Interest Rate (as defined in the Mortgage Loan Documents).
“Interim Servicing Agreement” shall mean that certain interim servicing agreement to be negotiated in good faith between the parties hereto after the date hereof. Until such time as the parties hereto execute an Interim Servicing Agreement, the Noteholders shall cause the Mortgage Loan to be serviced by UBS Real Estate Securities Inc., who shall cause Midland Loan Services, Inc. to subservice the Mortgage Loan in accordance with this Agreement and the customary and usual servicing practices of originators of commercial mortgage loans intended to be securitized. The Servicing Fee Rate under the Interim Servicing Agreement will be 1.5 basis points per annum (subject to a minimum monthly fee of $250.00), paid monthly based on the outstanding principal balance of the Notes and calculated on the same basis as interest is accrued on the Mortgage Loan.]
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity which holds the Junior Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“Junior Note” shall have the meaning assigned to such term in the recitals.
“Junior Noteholder” shall mean the Initial Junior Noteholder, and its successors in interest, or any subsequent holder of the Junior Note.
“Junior Note Default Rate” shall mean a rate per annum equal to the Junior Note Rate plus the Note Default Interest Spread.
“Junior Note Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Junior Note Principal Balance and the denominator of which is the sum of the Senior Note Principal Balance and the Junior Note Principal Balance.
“Junior Note Principal Balance” shall mean, at any time of determination, the Initial Junior Note Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.
“Junior Note Rate” shall mean the Junior Note Rate set forth on the Mortgage Loan Schedule.
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“KBRA” shall mean Kroll Bond Rating Agency, Inc., or its successors in interest.
“Lender” shall have the meaning assigned to such term in the Mortgage.
“Liquidation Proceeds” shall have the meaning assigned to such term in the Servicing Agreement.
“Major Decisions” shall mean:
(i) any workout or other change to any Mortgage Loan that would result in any modification of, or waiver with respect to, the Mortgage Loan that would result in the extension of the maturity date or extended maturity date thereof, a reduction in the interest rate borne thereby or the monthly debt service payment or a deferral or a forgiveness of interest on or principal of the Mortgage Loan or a modification or waiver of any other monetary term of the Mortgage Loan relating to the amount or timing of any payment of principal or interest or any other sums (including reserve requirements) due and payable under the Mortgage Loan Documents or a modification or waiver of any material non-monetary provision of the Mortgage Loan, including but not limited to provisions which restrict the Mortgage Loan Borrower or its equity owners from incurring additional indebtedness or transferring interests in the Mortgaged Property or the Mortgage Loan Borrower;
(ii) any modification of, or waiver with respect to, the Mortgage Loan that would result in a discounted pay-off of the Junior Note;
(iii) any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of a REO Property) of the ownership of the Mortgaged Property or any acquisition of the Mortgaged Property by deed-in-lieu of foreclosure or any other exercise of remedies following an Event of Default;
(iv) any material direct or indirect sale of all or any material portion of the Mortgaged Property or REO Property other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(v) any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address hazardous material located at an REO Property;
(vi) any substitution, release or addition of collateral for the Mortgage Loan other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(vii) any release of the Mortgage Loan Borrower or guarantor from liability with respect to the Mortgage Loan including, without limitation, by acceptance of an assumption of the Mortgage Loan by a successor Mortgage Loan Borrower or replacement guarantor other than those required pursuant to the
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specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(viii) any determination (1) not to enforce a “due-on-sale” or “due–on–encumbrance” clause (unless such clause is not exercisable under applicable law or such exercise is reasonably likely to result in successful legal action by the Mortgage Loan Borrower) or (2) to accelerate a Mortgage Loan (other than automatic accelerations pursuant to the Mortgage Loan Documents);
(ix) any transfer of the Mortgaged Property or any portion thereof, or any transfer of any direct or indirect ownership interest in the Mortgage Loan Borrower, other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;
(x) any acceptance of an assumption agreement or any other agreement permitting transfers of interests in a borrower or guarantor releasing a borrower or guarantor from liability under the Mortgage Loan other than pursuant to the specific terms of the Mortgage Loan and for which there is no lender discretion;
(xi) any incurring of additional debt by the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement or incurring of mezzanine financing by any beneficial owner of the Mortgage Loan Borrower, including the terms of any document evidencing or securing any such mezzanine debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of any such document or agreement (other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no material lender discretion);
(xii) following a default or an event of default with respect to the Mortgage Loan or any acceleration of the Mortgage Loan or initiation of judicial, bankruptcy or similar proceedings under the mortgage loan documents or with respect to the related borrower or Mortgaged Property;
(xiii) any approval of any casualty insurance settlements or condemnation settlements, and any determination to apply casualty proceeds or condemnation awards to the reduction of the debt rather than to the restoration of the Mortgaged Property;
(xiv) the waiver or modification of any documentation relating to the Guarantor’s obligations under the Guaranty (as defined in the Mortgage Loan Documents); and
(xv) the releases of any escrows or reserve accounts other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion.
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“Master Servicer” shall have the meaning assigned to such term in the Servicing Agreement.
“Monetary Default” shall have the meaning assigned to such term in Section 11(a).
“Monetary Default Notice” shall have the meaning assigned to such term in Section 11(a).
“Monthly Payment” shall mean have the meaning assigned to such term in the Servicing Agreement.
“Monthly Payment Date” shall mean the Payment Date (as defined in the Mortgage Loan Documents).
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the mortgage loan agreement, dated as of July 24, 2015, between the Mortgage Loan Borrower and the Senior Noteholder, as the same may be amended, restated, renewed, extended, modified or supplemented from time to time, subject to the terms hereof.
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 18.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage, the Note and all other documents now or hereafter evidencing and securing the Mortgage Loan.
“Mortgage Loan Rate” shall mean, as of any date of determination, the weighted average of the Senior Note Rate and the Junior Note Rate.
“Mortgage Loan Schedule” shall mean the Schedule attached hereto as Exhibit A.
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“Net Junior Note Rate” shall mean the Junior Note Rate minus the Servicing Fee Rate.
“Net Senior Note Rate” shall mean the Senior Note Rate minus the Servicing Fee Rate.
“Non-Controlling Noteholder” shall mean the Senior Noteholder or, if a Control Appraisal Period has occurred and is continuing, the Junior Noteholder.
“Non-Controlling Note” shall mean the interest of the Non-Controlling Noteholder in its Note.
“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit Senior Noteholder to make such payments free of any obligation or liability for withholding.
“Non-Monetary Default” shall have the meaning assigned to such term in Section 11(d).
“Non-Monetary Default Cure Period” shall have the meaning assigned to such term in Section 11(d).
“Non-Monetary Default Notice” shall have the meaning assigned to such term in Section 11(d).
“Noteholder” shall mean either of the Senior Noteholder and the Junior Noteholder, as applicable.
“Noteholder Purchase Notice” has the meaning assigned to such term in Section 12.
“Note” shall mean either of the Senior Note and the Junior Note, as applicable.
“Note Default Interest Spread” shall mean a rate per annum equal to five percent (5%); provided, however, that if the weighted average of the Senior Note Default Rate and the Junior Note Default Rate would exceed the maximum rate permitted by applicable law, the note default interest spread shall equal (i) the rate at which the weighted average of the Senior Note Default Rate and the Junior Note Default Rate equals the maximum rate permitted by applicable law minus (ii) the Interest Rate.
“Note Pledgee” shall have the meaning assigned to such term in Section 19(e).
“Note Rate” shall mean either of the Senior Note Rate and the Junior Note Rate, as applicable.
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“Note Register” shall have the meaning assigned to such term in Section 21.
“Operating Advisor” shall mean, with respect to the Mortgage Loan, the advisor appointed pursuant to Section 6(a).
“Percentage Interest” shall mean, with respect to the Senior Noteholder, the Senior Note Percentage Interest, and with respect to the Junior Noteholder, the Junior Note Percentage Interest, as each may be adjusted from time to time.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $500,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Person” shall have the meaning assigned to such term in the Servicing Agreement.
“Pledge” shall have the meaning assigned to such term in Section 19(e).
“Prepayment Premium” shall mean, with respect to the Mortgage Loan, any prepayment premium, spread maintenance premium, yield maintenance premium or similar fee required to be paid in connection with a prepayment of the Mortgage Loan pursuant to the Mortgage Loan Documents, including any exit fee.
“Principal Balance” shall mean either of the Senior Note Principal Balance and the Junior Note Principal Balance, as applicable.
“Qualified Institutional Lender” shall mean each of the Initial Noteholders and any other U.S. Person that is:
(a) an entity Controlled (as defined below) by, under common Control with or Controlling either the Initial Senior Noteholder or the Initial Junior Noteholder, or
(b) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “institutional accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, or
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(iii) a Qualified Trustee (or in the case of a CDO, a single purpose bankruptcy remote entity which contemporaneously assigns or pledges its Junior Note, or a participation interest therein (or any portion thereof) to a Qualified Trustee) in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, any or all of the Junior Note (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies which assigned a rating to one or more classes of securities issued in connection with a securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of a Junior Note to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Junior Note in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $500,000,000, in which (A) the Senior Noteholder or the Junior Noteholder, as applicable, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (b)(i), (ii), (iii)(a), (iv)(B) or (v) of this definition, (x) such entity has at least $400,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $1,000,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan or mezzanine loans with respect to commercial real estate or owning or operating
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commercial real estate properties; provided that, in the case of the entity described in clause (iv) (B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity, or
(c) any entity Controlled (as defined below) by any of the entities described in clause (b) above or approved by the Rating Agencies hereunder as a Qualified Institutional Lender for purposes of this Agreement.
For purposes of this definition only, “Control” means the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” have the meaning correlative thereto).
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies.
“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably designated by the Depositor to rate the securities issued in connection with the Securitization of the Senior Note; provided, however, that, at any time during which the Senior Note is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the Depositor from time to time to rate the securities issued in connection with the Securitizations of the Notes.
“Rating Agency Confirmation” shall have the meaning given thereto or any analogous term in the Securitization Servicing Agreement including any deemed Rating Agency Confirmation.
“Recovered Costs” shall mean any amounts referred to in clauses (d) and/or (e) of the definition of “Defaulted Mortgage Loan Purchase Price” that, at the time of determination, had been previously paid or reimbursed to any Servicer from sources other than collections on or in respect of the Mortgage Loan or the Mortgaged Property (including, without limitation, from collections on or in respect of loans other than the Mortgage Loan).
“Redirection Notice” shall have the meaning assigned to such term in Section 19(e).
“REMIC” shall mean a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code.
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“REMIC Provisions” shall mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, either (a) the applicable replacement has a special servicer ranking of at least “MOR CS3” by Morningstar (if ranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a master servicer or special servicer, as applicable, on a deal or transaction-level basis for all or a significant portion of the related mortgage loans in other CMBS transactions rated by any of S&P, Moody’s, Fitch, DBRS, Morningstar or KBRA and the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies that Morningstar has not, with respect to any such other CMBS transaction, qualified, downgraded or withdrawn its rating or ratings on one or more classes of such CMBS transaction citing servicing concerns of the applicable replacement as the sole or material factor in such rating action, and (v) in the case of DBRS or KBRA, as applicable, has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.
“REO Property” shall have the meaning assigned to such term in the Servicing Agreement.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors in interest.
“Securitization” shall mean one or more sales by the Senior Noteholder of all or a portion of such Senior Note to a Depositor, who will in turn include such portion of such Note as part of a securitization of one or more mortgage loans.
“Securitization Date” shall mean the effective date on which the Securitization of the Senior Note or first portion thereof is consummated.
“Securitization Operating Advisor” shall mean the operating advisor, senior trust advisor or any analogues entity under the Securitization Servicing Agreement, if any.
“Securitization Servicing Agreement” shall mean pooling and servicing agreement to be entered into in connection with the issuance of Bank of America Merrill Lynch
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Commercial Mortgage Trust 2015 UBS7, Commercial Mortgage Pass-Through Certificates, Series 215-UBS7 by and among (a) Banc of America Merrill Lunch Commercial Mortgage Inc., as depositor, (b) Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, (c) LNR Partners, LLC, as special servicer, (d) U.S. Bank National Association, as trustee, certificate administrator, certificate registrar, authenticating agent and custodian and (e) Pentalpha Surveillance LLC, as senior trust advisor. The Servicing Standard in the Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder (taking into account that the Junior Note is junior to the Senior Note).
“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which Junior Note or Senior Note is held.
“Senior Note” shall have the meaning assigned to such term in the recitals.
“Senior Noteholder” shall mean the Initial Senior Noteholder, or any subsequent holder of the Senior Note, together with its successors and assigns.
“Senior Note Default Rate” shall mean a rate per annum equal to the Senior Note Rate plus the Note Default Interest Spread.
“Senior Note Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Senior Note Principal Balance and the denominator of which is the sum of the Senior Note Principal Balance and the Junior Note Principal Balance.
“Senior Note Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Senior Note Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Senior Noteholder or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.
“Senior Note Rate” shall mean the Senior Note Rate set forth on the Mortgage Loan Schedule.
“Sequential Pay Event” shall mean any Event of Default with respect to an obligation to pay money due under the Mortgage Loan, any other Event of Default for which the Mortgage Loan is actually accelerated or any other Event of Default which causes the Mortgage Loan to become a Specially Serviced Mortgage Loan, or any bankruptcy or insolvency event that constitutes an Event of Default. A Sequential Pay Event shall no longer exist if it has been cured (including any cure payment made by the Controlling Noteholder in accordance with Section 11) and shall not be deemed to exist to the extent any Junior Noteholder is exercising its cure rights under Section 11.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
“Servicing Advance” shall have the meaning given to the term “Property Advance” in the Servicing Agreement.
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“Servicing Agreement” shall mean, with respect to the Mortgage Loan, prior to the Securitization Date, the Interim Servicing Agreement, and, from and after the Securitization Date, the Securitization Servicing Agreement.
“Servicing Fee Rate” shall have the meaning assigned to such term in the Servicing Agreement.
“Servicing Standard” shall have the meaning assigned to such term in the Servicing Agreement.
“Servicing Transfer Event” shall have the meaning assigned to such term in the Servicing Agreement.
“Special Servicer” shall have the meaning assigned to such term in the Servicing Agreement.
“Specially Serviced Mortgage Loan” shall have the meaning assigned to such term in the Servicing Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Threshold Event Collateral” shall have the meaning assigned to such term in Section 5(g).
“Threshold Event Cure” shall have the meaning assigned to such term in Section 5(g).
“Transfer” shall mean any sale, assignment, transfer, pledge, syndication, participation, hypothecation, contribution, encumbrance or other disposition (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 19(e)).
“Trustee” shall mean the bank or trust company as may be selected by the Depositor and approved by the Rating Agencies to act as trustee for the Securitization, and shall include any fiscal agent and/or paying agent appointed for such Securitization.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 that is eligible to elect to be treated as a U.S. Person).
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“Workout” shall mean any written modification, waiver, amendment, restructuring or workout of the Mortgage Loan or the Note entered into with the Mortgage Loan Borrower in accordance with the Servicing Agreement.
Section 2. Purchase of Junior Note; Servicing.
(a) Each Noteholder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date pursuant to the Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 5(b)), pursuant to the Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than the Senior Note if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. The Junior Noteholder acknowledges that the Senior Noteholder may elect, in its sole discretion, to include the Senior Note in a Securitization and agrees that it will, subject to Section 24, reasonably cooperate with the Senior Noteholder, at the Senior Noteholder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with this Agreement and the Securitization Servicing Agreement. Each Noteholder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of the Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to the other Noteholder.
(b) In no event shall the Junior Noteholder be entitled to exercise any rights of the “directing holder” consulting class or any analogous class or holder under the Securitization Servicing Agreement except to the extent the Junior Noteholder is given such rights expressly under the terms of this Agreement or the Servicing Agreement in its capacity as the Controlling Noteholder.
(c) In no event may the Securitization Servicing Agreement change the interest allocable to, or the amount of any payments due to, the Controlling Noteholder or materially increase the Controlling Noteholder’s obligations or materially decrease the Controlling Noteholder’s rights, remedies or protections hereunder. The Securitization Servicing Agreement shall require the Master Servicer and Special Servicer to service the Mortgage Loan in accordance with the terms of this Agreement, including the rights of the Junior Noteholder hereunder.
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(d) The Securitization Servicing Agreement shall contain provisions to the effect that:
(i) if an event of default under the Securitization Servicing Agreement has occurred (A) with respect to the Master Servicer under the Securitization Servicing Agreement that affects a Noteholder or any class of commercial mortgage securities backed by a Note or a participation interest in a Note, and the Master Servicer is not otherwise terminated under the Securitization Servicing Agreement, then the Junior Noteholder or its’ designees (if the Junior Noteholder is the Controlling Holder) shall be entitled to direct the Trustee to appoint a sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan is currently being sub-serviced, to replace the current sub-servicer, but only if such original sub-servicer is in default under the related sub-servicing agreement); and (B) the appointment (or replacement) of a sub-servicer with respect to the Mortgage Loan, as contemplated in clause (A) above, will in any event be subject to written confirmation from each Rating Agency that such appointment would not, in and of itself, cause a downgrade, qualification or withdrawal of the then-current ratings assigned to the securities issued in connection with any Securitization;
(ii) any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the other Noteholders on the “master servicer remittance date” under the Securitization Servicing Agreement;
(iii) the Noteholders shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information, relating to the Mortgage Loan, the borrower or the Mortgaged Property as such Person may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the securities issued by the Securitization Trust that includes other Notes but not limited to standard CREFC reports, provided that if an interest in the Junior Note or the Junior Noteholder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then the Junior Noteholder shall not be entitled to receive the Asset Status Report or any other information relating to the Special Servicer’s workout strategy;
(iv) each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and
(v) the Securitization Servicing Agreement may not be amended without the consent of the Junior Noteholder if such amendment would materially and adversely affect their rights thereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.
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(f) At any time after the Securitization Date that the Senior Note is no longer subject to the provisions of the Securitization Servicing Agreement, Senior Noteholder shall cause the Mortgage Loan to be serviced pursuant to a servicing agreement that contains servicing provisions which are the same as or more favorable to Junior Noteholder, in substance, to those in the Securitization Servicing Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Senior Noteholder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by Senior Noteholder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement.
Section 3. Subordination of Junior Note; Payments Prior to a Sequential Pay Event. The Junior Note and the right of the Junior Noteholder to receive payments of interest, principal and other amounts with respect to such Junior Note shall at all times be junior, subject and subordinate to the Senior Note and the right of the Senior Noteholder to receive payments of interest, principal and other amounts with respect to the Senior Note as set forth herein. If no Sequential Pay Event, as determined by the applicable Servicer, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent, in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under the Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Operating Advisor, Certificate Administrator or Trustee with respect to this Mortgage Loan pursuant to the Servicing Agreement, shall be applied by the Senior Noteholder (or its designee) and distributed by the Servicer for payment in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):
(a) first, to the Senior Noteholder in an amount equal to the accrued and unpaid interest on the Senior Note Principal Balance at the Net Senior Note Rate;
(b) second, to the Senior Noteholder in an amount equal to the Senior Note Percentage Interest of principal payments received (other than any principal amortization payment payable on the Junior Note pursuant to the Mortgage Loan Agreement), if any, with
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respect to such Monthly Payment Date with respect to the Mortgage Loan, until the Senior Note Principal Balance has been reduced to zero;
(c) third, to the Senior Noteholder up to the amount of any unreimbursed costs and expenses paid by the Senior Noteholder including any Recovered Costs not previously reimbursed to the Senior Noteholder (or paid or advanced by any Servicer on its behalf and not previously paid or reimbursed) with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement;
(d) fourth, to the Senior Noteholder in an amount equal to the Prepayment Premium with respect to the Senior Note to the extent paid by the Mortgage Loan Borrower;
(e) fifth, if, as a result of a Workout the Principal Balance of the Senior Note has been reduced, to the Senior Noteholder in an amount up to the reduction of the Senior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Senior Note Rate;
(f) sixth, to the Junior Noteholder in an amount equal to the accrued and unpaid interest on the Junior Note Principal Balance at the Net Junior Note Rate;
(g) seventh, to the Junior Noteholder in an amount equal to (i) any principal amortization payment payable on the Junior Note pursuant to the Mortgage Loan Agreement and (ii) the Junior Note Percentage Interest of principal payments, in each case, received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan, until the Junior Note Principal Balance has been reduced to zero;
(h) eighth, to the Junior Noteholder in an amount equal to the Prepayment Premium with respect to the Junior Note to the extent paid by the Mortgage Loan Borrower;
(i) ninth, to the extent the Junior Noteholder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Junior Noteholder for all such cure payments;
(j) tenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(i) and, as a result of a Workout the Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the Junior Noteholder in an amount up to the reduction, if any, of the Junior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Junior Note Rate;
(k) eleventh, to the extent assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to provide reimbursement for interest on any Advances, to pay any Additional Servicing Expenses or to compensate a Servicer (in each case provided that such reimbursements or payments relate to the Mortgage Loan), any such assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Senior Noteholder and the Junior Noteholder, pro rata, based on their respective Percentage Interests; and
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(l) twelfth, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a)-(k), any remaining amount shall be paid pro rata to the Senior Noteholder and the Junior Noteholder in accordance with their respective initial Percentage Interests.
Section 4. Payments Following a Sequential Pay Event. Payments of interest and principal shall be made to the Noteholders in accordance with Section 3 of this Agreement; provided, if a Sequential Pay Event, as determined by the applicable Servicer and as set forth in the Servicing Agreement, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof (including without limitation amounts received by the Master Servicer or Special Servicer pursuant to the Servicing Agreement as reimbursements on account of recoveries in respect of Advances), whether received in the form of Monthly Payments, any proceeds from the sale or distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents deemed appropriate by the Servicer in accordance with the Servicing Standard to continue to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Operating Advisor, Certificate Administrator or Trustee with respect to this Mortgage Loan pursuant to the Servicing Agreement with respect to the Mortgage Loan, shall be distributed by the Servicer in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):
(a) first, to the Senior Noteholder in an amount equal to the accrued and unpaid interest on the Senior Note Principal Balance at the Net Senior Note Rate;
(b) second, to the Senior Noteholder in an amount equal to the Senior Note Principal Balance, until the Senior Note Principal Balance has been reduced to zero;
(c) third, to the Senior Noteholder up to the amount of any unreimbursed costs and expenses paid by the Senior Noteholder including any Recovered Costs not previously reimbursed to the Senior Noteholder (or paid or advanced by any Servicer on its behalf and not previously paid or reimbursed) with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement;
(d) fourth, to the Senior Noteholder in an amount equal to the Prepayment Premium with respect to the Senior Note to the extent paid by the Mortgage Loan Borrower;
(e) fifth, if, as a result of a Workout the Principal Balance of the Senior Note has been reduced, to the Senior Noteholder in an amount up to the reduction of the Senior Note
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Principal Balance as a result of such Workout, plus interest on such amount at the related Senior Note Rate;
(f) sixth, to the Junior Noteholder in an amount equal to the accrued and unpaid interest on the Junior Note Principal Balance at the Net Junior Note Rate;
(g) seventh, to the Junior Noteholder in an amount equal to the Junior Note Principal Balance, until the Junior Note Principal Balance has been reduced to zero;
(h) eighth, to the Junior Noteholder in an amount equal to the Prepayment Premium with respect to the Junior Note to the extent paid by the Mortgage Loan Borrower;
(i) ninth, to the extent the Junior Noteholder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Junior Noteholder for all such cure payments;
(j) tenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(i) and, as a result of a Workout the Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the Junior Noteholder in an amount up to the reduction, if any, of the Junior Note Principal Balance as a result of such Workout, plus interest on such amount at the related Junior Note Rate;
(k) eleventh, to the extent assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to provide reimbursement for interest on any Advances, to pay any Additional Servicing Expenses or to compensate a Servicer (in each case provided that such reimbursements or payments relate to the Mortgage Loan), any such assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Senior Noteholder and the Junior Noteholder, pro rata, based on their respective Percentage Interests; and
(l) twelfth, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a)-(k), any remaining amount shall be paid pro rata to the Senior Noteholder and the Junior Noteholder in accordance with their respective initial Percentage Interests.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including, without limitation, Section 5(f) below) and the Servicing Agreement, the Senior Noteholder (or the Servicer acting on behalf of the Senior Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy and the Junior Noteholder shall not have any voting, consent or other rights whatsoever with respect to
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the Senior Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Servicing Agreement (including, without limitation, Section 5(f) below), the Junior Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Senior Noteholder (or the Servicer acting on behalf of the Senior Noteholder) the rights, if any, that the Junior Noteholder has to, (i) call or cause the Senior Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Senior Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Senior Noteholder (or the Servicer acting on behalf of the Senior Noteholder) shall not have any fiduciary duty to the Junior Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Senior Noteholder from the obligation to make any disbursement of funds as set forth herein).
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing Agreement. The Junior Noteholder agrees to be bound by the terms of the Servicing Agreement. The Senior Noteholder (or the Servicer on its behalf) shall service the Mortgage Loan in accordance with the terms of this Agreement, including without limitation the rights of the Junior Noteholder set forth in Section 5(f) below. Servicing of the Mortgage Loan shall generally be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan, by the Special Servicer, in each case pursuant to the Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Senior Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Senior Noteholder and the Junior Noteholder (it being understood that the interest of the Junior Noteholder is a junior Note interest, subject to the terms and conditions of this Agreement), and any Junior Noteholder who is not the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Operating Advisor to exercise their respective rights specifically set forth under this Agreement.
(c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Section 6), if the Servicer (on behalf of the Noteholders) in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Senior Noteholder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of the Senior Note remaining the same as they are on the date hereof, the Junior Note shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout (up to the amount otherwise due on the Junior Note). Subject to the Servicing Agreement and this Agreement (including without limitation Section 6), in the case of any modification or amendment described above, the Servicer (on
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behalf of the Noteholders) will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of the Junior Note to the Senior Note with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Senior Note Percentage Interest and to reduce the Junior Note Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Senior Note Rate and the Junior Note Rate, as applicable, in order to reflect a reduction in the Interest Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan.
(d) All rights and obligations of the Senior Noteholder described hereunder may be exercised by the Servicer on behalf of the Senior Noteholder in accordance with the Servicing Agreement and this Agreement.
(e) For so long as the Senior Note is included as an asset of a REMIC, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Senior Note and the Junior Note shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Sections 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Senior Noteholder pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interests of the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Sections 860G(a)(8) of the Code and (iii) the Senior Noteholder may not modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Senior Noteholder may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G 2(b) of the regulations of the United Stated Department of the Treasury, more than three months after the earliest startup day of any REMIC which includes the Senior Note (or any portion thereof). The Noteholders agree that the provisions of this Section 5(e) shall be effected by compliance by the Senior Noteholder or its assignees with this Agreement or the Servicing Agreement or any other agreement which governs the administration of the Mortgage Loan or the Senior Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by the Senior Noteholder.
(f) If any consent, modification, amendment or waiver under or other action in respect of a Mortgage (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed, at least ten (10) Business Days prior to taking action with respect to such Major Decision (or making a determination not to take action with respect to such Major Decision), the Senior Noteholder (or
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Servicer acting on its behalf) must receive the written consent of the Controlling Noteholder (or its Operating Advisor) before implementing a decision with respect to such Major Decision.
If the Senior Noteholder (or Servicer acting on its behalf) has not received a response from the Controlling Noteholder (or its Operating Advisor) with respect to such Major Decision within five (5) Business Days after delivery of the notice of a Major Decision, the Senior Noteholder (or Servicer acting on its behalf) shall deliver an additional copy of the notice of a Major Decision in all caps bold 14-point font: “This is a Second Notice. Failure to respond within five (5) Business Days of this Second Notice will result in a loss of your right to consent with respect to this decision.” and if the Controlling Noteholder (or its Operating Advisor) fails to respond to the Senior Noteholder (or Servicer acting on its behalf) with respect to any such proposed action within five (5) Business Days after receipt of such second notice, the Controlling Noteholder (or its Operating Advisor), as applicable, shall have no further consent rights with respect to such action.
Notwithstanding the foregoing, following the occurrence of an extraordinary event with respect to any Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Senior Noteholder (or Servicer acting on its behalf) may take actions with respect to such Mortgaged Property before obtaining the consent of the Controlling Noteholder (or its Operating Advisor) if the Senior Noteholder (or Servicer acting on its behalf) reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent would materially and adversely affect the interest of the Noteholders, and the Senior Noteholder (or Servicer acting on its behalf) has made a reasonable effort to contact the Controlling Noteholder (or its Operating Advisor). The foregoing shall not relieve the Senior Noteholder (or Servicer acting on its behalf) of its duties to comply with the Servicing Standard.
Notwithstanding the foregoing, the Senior Noteholder (or Servicer acting on its behalf) shall not follow any advice or consultation provided by the Controlling Noteholder (or its Operating Advisor) that would require or cause the Senior Noteholder (or Servicer acting on its behalf) to violate any applicable law, including the REMIC Provisions, be inconsistent with the Servicing Standard, require or cause the Senior Noteholder (or Servicer acting on its behalf) to violate provisions of this Agreement or the Servicing Agreement, require or cause the Senior Noteholder (or Servicer acting on its behalf) to violate the terms of the Mortgage Loan, or materially expand the scope of any Senior Noteholder’s (or Servicer acting on its behalf) responsibilities under this Agreement.
(g) The Controlling Noteholder shall be entitled to avoid its applicable Control Appraisal Period caused by application of an Appraisal Reduction Amount upon satisfaction of the following (which must be completed within thirty (30) days of the receipt of a third party Appraisal that indicates such Control Appraisal Period has occurred): (i) such Controlling Noteholder shall have delivered as a supplement to the appraised value of the Mortgaged Property, in the amount specified in clause (ii) below, to the Servicer, together with documentation acceptable to the Servicer in accordance with the Servicing Standard to create and perfect a first priority security interest in favor of the Senior Noteholder in such collateral (a) cash collateral for the benefit of, and acceptable to, the Servicer or (b) an unconditional and irrevocable standby letter of credit with the Senior Noteholder as the beneficiary, in form
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reasonably acceptable to the Servicer, issued by a bank or other financial institutions the long term unsecured debt obligations of which are at all times rated at least “AA” by S&P, “A” by Fitch and “Aa2” by Moody’s or the short term obligations of which are rated at least “A-1+” by S&P, “F-1” by Fitch and “P-1” by Moody’s (either (a) or (b), the “Threshold Event Collateral”), and (ii) the Threshold Event Collateral shall be in an amount which, when added to the appraised value of the Mortgaged Property as determined pursuant to the Servicing Agreement, would cause the applicable Control Appraisal Period not to occur. If the requirements of this paragraph are satisfied by the Controlling Noteholder (a “Threshold Event Cure”), no Control Appraisal Period caused by application of an Appraisal Reduction Amount shall be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the applicable Controlling Noteholder shall be required to renew such letter of credit not later than thirty (30) days prior to expiration thereof or to replace such letter of credit with a substitute letter of credit or other Threshold Event Collateral with an expiration date that is greater than forty-five (45) days from the date of substitution; provided, however, that, if a letter of credit is not renewed prior to thirty (30) days prior to the expiration date of such letter of credit, the letter of credit shall provide that the Servicer may (and at the direction of the applicable Controlling Noteholder, shall) draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. If a letter of credit is furnished as Threshold Event Collateral, the applicable Controlling Noteholder shall be required to replace such letter of credit with other Threshold Event Collateral within 30 days if the credit ratings of the issuing entity are downgraded below the required ratings; provided, however, that, if such Threshold Collateral is not so replaced, the Servicer shall draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure shall continue until (i) the appraised value of the Mortgaged Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Appraisal Period from occurring; or (ii) the occurrence of a Final Recovery Determination. If the appraised value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or some portion of, Threshold Event Collateral previously delivered by the Controlling Noteholder, any or such portion of Threshold Event Collateral held by the Servicer shall promptly be returned to such Controlling Noteholder (at its sole expense). Upon a Final Recovery Determination with respect to the Mortgage Loan, such Threshold Event Collateral shall be available to reimburse each Noteholder for any realized loss pursuant to Section 3 or 4, as applicable, with respect to the Mortgage Loan after application of the net proceeds of liquidation, not in excess of the Senior Note Principal Balance and the Junior Note Principal Balance, as the case may be, plus accrued and unpaid interest thereon at the applicable interest rate and all other Additional Servicing Expenses reimbursable under this Agreement and under the Servicing Agreement. Any Threshold Event Collateral shall be treated as an “outside reserve fund” for purposes of the REMIC Provisions and such property (and the right to reimbursement of any amounts with respect thereto from a REMIC) shall be beneficially owned by the posting Noteholder who shall be taxed on all income with respect thereto. The entire amount of Threshold Event Collateral, without a haircut or other reduction, shall be considered in determining the sufficiency of such Threshold Event Collateral to avoid a Control Appraisal Period.
(h) The Servicer or Special Servicer shall obtain Appraisals that meet the requirements of, and at the times required pursuant to, the terms of the Securitization Servicing Agreement.
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Section 6. Appointment of Operating Advisor.
(a) The Controlling Noteholder shall have the right at any time to appoint an Operating Advisor to exercise its rights hereunder (the “Operating Advisor”). The Controlling Noteholder shall have the right in its sole discretion at any time and from time to time to remove and replace the Operating Advisor. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Noteholder may, at its option, in each case, act through the Operating Advisor. The Operating Advisor may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Noteholder, any officer or employee of the Controlling Noteholder, any Affiliate of the Controlling Noteholder or any other unrelated third party. No such Operating Advisor shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Noteholder). All actions that are permitted to be taken by the Controlling Noteholder under this Agreement may be taken by the Operating Advisor acting on behalf of the Controlling Noteholder and the Senior Noteholder will accept such actions of the Operating Advisor as actions of the Controlling Noteholder. Senior Noteholder (or any Servicer on its behalf) shall not be required to recognize any Person as an Operating Advisor until the Controlling Noteholder has notified the Senior Noteholder (and any Servicer) of such appointment and, if the Operating Advisor is not the same Person as the Controlling Noteholder, the Operating Advisor provides the Senior Noteholder (and any Servicer) with written confirmation of its acceptance of such appointment, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers). Senior Noteholder shall promptly deliver such information to any Servicer.
(b) Neither the Operating Advisor nor the Controlling Noteholder will have any liability to the Senior Noteholder or any other Person for any action taken, or for refraining from the taking of any action or in the giving of any consent or the failure to give any consent pursuant to this Agreement or the Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or negligence. The Senior Noteholder and the Junior Noteholder agree that the Operating Advisor and any Controlling Noteholder (whether acting in place of the Operating Advisor when no Operating Advisor shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to such Controlling Noteholder hereunder) may take or refrain from taking actions that favor the interests of one Noteholder over other Noteholders, and that the Operating Advisor may have special relationships and interests that conflict with the interests of a Noteholder and, absent willful misfeasance, bad faith or negligence on the part of the Operating Advisor or such Controlling Noteholder, as the case may be, agree to take no action against the Operating Advisor, such Controlling Noteholder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Operating Advisor nor such Controlling Noteholder will be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting solely in the interests of the Senior Noteholder or the Junior Noteholder, as applicable.
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(c) If the Senior Noteholder is the Controlling Noteholder, the Junior Noteholder acknowledges and agrees all of the aforementioned rights and obligations of the Controlling Noteholder and the Operating Advisor set forth in Section 5(f) and 5(g) and this Section 6 shall be exercisable by the Senior Noteholder (or the applicable Person specified in the Servicing Agreement) to the extent set forth in the Servicing Agreement.
Section 7. Special Servicer. The Controlling Noteholder (or its Operating Advisor), at its expense (including, without limitation, the reasonable costs and expenses of counsel to any third parties and costs and expenses of the terminated Special Servicer), shall have the right to appoint the Special Servicer with respect to the Mortgage Loan, provided that, at any time that the Controlling Noteholder is not the Junior Noteholder, the right to appoint or replace the Special Servicer shall be subject to the terms and conditions of the Servicing Agreement. The Controlling Noteholder (or its Operating Advisor) shall be entitled to terminate the rights and obligations of the Special Servicer under the Servicing Agreement, with or without cause, upon at least ten (10) Business Days’ prior notice to the Special Servicer (provided, however, that the Controlling Noteholder, Operating Advisor and/or Junior Noteholder shall not be liable for any termination or similar fee in connection with the removal of the Special Servicer in accordance with this Section 7); such termination not be effective unless and until (A) each Rating Agency delivers Rating Agency Confirmation (to the extent the Mortgage Loan has been securitized); (B) the initial or successor Special Servicer has assumed in writing (from and after the date such successor Special Servicer becomes the Special Servicer) all of the responsibilities, duties and liabilities of the Special Servicer under the Servicing Agreement from and after the date it becomes the Special Servicer as they relate to such Mortgage Loan pursuant to an assumption agreement reasonably satisfactory to the Trustee; and (C) the Trustee shall have received an opinion of counsel reasonably satisfactory to the Trustee to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with the Servicing Agreement, (y) such replacement will be bound by the terms of the Servicing Agreement with respect to such Mortgage Loan and (z) subject to customary qualifications and exceptions, the applicable servicing agreement will be enforceable against such replacement in accordance with its terms. The Senior Noteholder shall promptly provide copies to any terminated Special Servicer of the documents referred to in the preceding sentence. Prior to the Securitization, if the Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if not later than thirty (30) days after the Mortgage Loan becomes a Specially Serviced Mortgage Loan the Controlling Noteholder (or its Operating Advisor) elects to replace the Special Servicer, then each Noteholder agrees that no liquidation fees or workout fees shall be payable to the Special Servicer being replaced, unless such Special Servicer shall have either successfully completed a workout or a liquidation, in which case such fees shall be payable as provided herein.
Section 8. Payment Procedure.
(a) The Senior Noteholder (or the Servicer on its behalf), in accordance with the priorities set forth in Section 3 or 4, as applicable, and subject to the terms of the Servicing Agreement, will deposit or cause to be deposited all payments allocable to the Notes to the Collection Account for the Notes established pursuant to the Servicing Agreement. The Senior Noteholder (or the Servicer acting on its behalf) shall deposit such amounts to the applicable account on the Business Day next following the date such payment was received by the Senior
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Noteholder (or the Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.
(b) If the Senior Noteholder (or the Servicer on its behalf) determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of the Senior Note or the Junior Note must, pursuant to any insolvency bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Senior Noteholder, the Junior Noteholder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Senior Noteholder (or the Servicer on its behalf) shall not be required to distribute any portion thereof to such Junior Noteholder or the Senior Noteholder, as applicable, and the Junior Noteholder will promptly on demand by the Senior Noteholder (or the Servicer on its behalf) repay to the Senior Noteholder (or the Servicer on its behalf) any portion thereof that the Senior Noteholder (or the Servicer on its behalf) shall have theretofore distributed to the Junior Noteholder together with interest thereon at such rate, if any, as the Senior Noteholder shall have been required to pay to any Mortgage Loan Borrower, the Senior Noteholder, Master Servicer, Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Senior Noteholder (or the Servicer on its behalf) makes any payment to the Junior Noteholder before the Senior Noteholder (or the Servicer on its behalf) has received the corresponding payment (it being understood that the Senior Noteholder (or the Servicer on its behalf) is under no obligation to do so), and the Senior Noteholder (or the Servicer on its behalf) does not receive the corresponding payment within three (3) Business Days of its payment to the Junior Noteholder, the Junior Noteholder will, at the Senior Noteholder’s (or the Servicer’s on its behalf) request, promptly return that payment to the Senior Noteholder (or the Servicer on its behalf).
(d) Each of the Senior Noteholder and the Junior Noteholder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it will promptly remit such excess to the Senior Noteholder (or the Servicer on its behalf) who shall allocate such excess in accordance with this Agreement and the Servicing Agreement. The Senior Noteholder (or the Servicer on its behalf) shall have the right to offset any amounts due hereunder from the Junior Noteholder with respect to the Mortgage Loan against any future payments due to the Junior Noteholder under the Mortgage Loan, provided, that the Senior Noteholder’s and the Junior Noteholder’s obligations under this Section 8 are separate and distinct obligations from one another and in no event shall Senior Noteholder (or the Servicer on its behalf) enforce the obligations of the Senior Noteholder against the Junior Noteholder or the obligations of the Junior Noteholder against the Senior Noteholder. The Senior Noteholder’s and the Junior Noteholder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Noteholders. The Senior Noteholder (including any Servicer) shall have no liability to the Junior Noteholder with respect to the Junior Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of the Senior Noteholder. The Junior Noteholder shall have no liability to the Senior Noteholder with respect to the Senior Note
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except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of the Junior Noteholder.
The Junior Noteholder acknowledges that, subject to the terms and conditions hereof and the obligation of the Senior Noteholder (including any Servicer) to comply with, and except as otherwise required by, the Servicing Standard, the Senior Noteholder (including any Servicer) may exercise, or omit to exercise, any rights that the Senior Noteholder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the Junior Noteholder and that the Senior Noteholder (including any Servicer) shall have no liability whatsoever to the Junior Noteholder in connection with the Senior Noteholder’s exercise of rights or any omission by the Senior Noteholder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard.
The Senior Noteholder acknowledges that, subject to the terms and conditions hereof, the Junior Noteholder may exercise, or omit to exercise, any rights that the Junior Noteholder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the Senior Noteholder and that the Junior Noteholder shall have no liability whatsoever to the Senior Noteholder in connection with the Junior Noteholder’s exercise of rights or any omission by the Junior Noteholder to exercise such rights; provided, however, that the Junior Noteholder shall not be protected against any liability to the Senior Noteholder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence.
Section 10. Bankruptcy. Subject to the provisions of Section 5(f) hereof, the Junior Noteholder hereby covenants and agrees that only the Senior Noteholder (or the Servicer on its behalf) has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Subject to the provisions of Section 5(f) hereof, the Junior Noteholder further agrees that only the Senior Noteholder, as a creditor, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Junior Noteholder hereby appoints the Senior Noteholder as its agent, and grants to the Senior Noteholder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Junior Noteholder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Junior Noteholder in its capacity as such, hereby agrees that, upon the request of the Senior Noteholder, such Junior Noteholder shall execute, acknowledge and deliver to the Senior Noteholder all and every such further deeds, conveyances and instruments as the Senior Noteholder may reasonably request for the better
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assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.
Section 11. Cure Rights of Controlling Noteholder.
(a) Subject to Section 11(b) below, in the event that the Mortgage Loan Borrower fails to make any payment of principal or interest on the Mortgage Loan by the end of the applicable grace period (the “Grace Period”) for such payment permitted under the applicable Mortgage Loan Documents (a “Monetary Default”), the Senior Noteholder shall provide notice to the Junior Noteholder (while it is the Controlling Noteholder) and the Operating Advisor (while the Junior Noteholder is the Controlling Noteholder) of such default (the “Monetary Default Notice”). If the Junior Noteholder (while it is the Controlling Noteholder) or Operating Advisor (while the Junior Noteholder is the Controlling Noteholder) has not cured such Monetary Default within three (3) Business Days after receiving the Monetary Default Notice, the Senior Noteholder shall deliver an additional copy of the Monetary Default Notice that contains a statement in boldface font that this is a second notice and that the Junior Noteholder’s or its Operating Advisor’s failure to cure such Monetary Default within three (3) Business Days after receiving such second notice will result in the termination of the right to cure such Monetary Default. The Junior Noteholder (while it is the Controlling Noteholder) shall have the right, but not the obligation, to cure such Monetary Default after receiving the first Monetary Default Notice and until the period ending (3) Business Days after receiving the second Monetary Default Notice (the “Cure Period”) and at no other times. At the time a payment is made to cure a Monetary Default as permitted hereunder, the Junior Noteholder shall pay or reimburse the Senior Noteholder for all unreimbursed Advances (whether or not recoverable), Advance Interest Amounts, any unpaid fees to any Servicer specifically provided for in the Securitization Servicing Agreement and any Additional Servicing Expenses. At any time (while the Junior Noteholder is the Controlling Noteholder) during which the Junior Noteholder believes that a Monetary Default has occurred, the Junior Noteholder shall have the right (i) to send a written notice to the Servicer requesting written confirmation as to whether a Monetary Default has occurred and is continuing and, if the Servicer provides any such written confirmation indicating that a Monetary Default has occurred and is continuing, the Junior Noteholder may proceed with exercising its cure rights as set forth herein, and (ii) pending its receipt of any written confirmation described in the foregoing clause (i), to tender a cure payment to the applicable Servicer in the amount it reasonably believes necessary to cure any such potential Monetary Default, which cure payment shall either be (A) in the event a Monetary Default has occurred, retained and applied to the cure of such Monetary Default in accordance with the terms hereof, or (B) in the event that no such Monetary Default has occurred, returned by the applicable Servicer to the Junior Noteholder. If the amount of a cure payment tendered by the Junior Noteholder is less than the amount necessary to effect a cure of a Monetary Default, such payment shall not effect a cure, but Junior Noteholder may effect a cure if it pays any deficiency within the Cure Period. If the amount of a cure payment tendered by the Junior Noteholder exceeds the amount necessary to effect a cure, the applicable Servicer shall return such excess to the Junior Noteholder. The Junior Noteholder (to the extent it is permitted to effect a cure hereunder) shall not be required, in order to effect a cure hereunder, to pay any default interest or late charges under the Loan Documents. So long as a Monetary Default exists for which a cure payment permitted hereunder is made, such Monetary Default shall not be
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treated as an Event of Default by the Senior Noteholder (including for purposes of (i) the definition of “Sequential Pay Event,” (ii) accelerating the Mortgage Loan, modifying, amending or waiving any provisions of the Mortgage Loan Documents or commencing proceedings for foreclosure or the taking of title by deed-in-lieu of foreclosure or other similar legal proceedings with respect to the Mortgaged Property; or (iii) treating the Mortgage Loan as a Specially Serviced Mortgage Loan); provided that such limitation shall not prevent the Senior Noteholder from collecting Default Interest or late charges from the Mortgage Loan Borrower. Any amounts advanced by the Junior Noteholder (to the extent permitted hereunder) on behalf of the Mortgage Loan Borrower to effect any cure shall be reimbursable to such Noteholder under Section 3 or Section 4, as applicable.
(b) Notwithstanding anything to the contrary contained in Section 11(a), the Junior Noteholder shall be limited to a combined total of four (4) cures of Monetary Defaults, no more than three (3) of which may be consecutive, or Non-Monetary Defaults over the term of the Mortgage Loan. Additional Cure Periods shall only be permitted with the consent of the Senior Noteholder.
(c) No action taken by the Junior Noteholder in accordance with this Agreement shall excuse performance by the Mortgage Loan Borrower of its obligations under the Mortgage Loan Documents and Senior Noteholder’s rights under the Mortgage Loan Documents shall not be waived or prejudiced by virtue of the Junior Noteholder’s actions under this Agreement. Subject to the terms of this Agreement, the Junior Noteholder shall be subrogated to the Senior Noteholder’s rights to any payment owing to the Senior Noteholder for which the Junior Noteholder makes a cure payment as permitted under this Section 11 but such subrogation rights may not be exercised against the Mortgage Loan Borrower until 91 days after the Note is paid in full.
(d) If an Event of Default (other than a Monetary Default) occurs and is continuing under the Mortgage Loan Documents (a “Non-Monetary Default”), the Senior Noteholder shall promptly provide notice to the Controlling Noteholder and the Operating Advisor of such failure (the “Non-Monetary Default Notice”) and the Controlling Noteholder shall have the right, but not the obligation, to cure such Non-Monetary Default within the same period of time as the Mortgage Loan Borrower under the Mortgage Loan Documents, without regard for the date of receipt by the Controlling Noteholder of the Non-Monetary Default Notice, or in any event, up to 40 days, to cure such Non-Monetary Default; provided, however, if such Non-Monetary Default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being diligently pursued by the Controlling Noteholder, the Controlling Noteholder shall be given an additional period of time as is reasonably necessary to enable the Controlling Noteholder in the exercise of due diligence to cure such Non-Monetary Default for so long as (i) the Controlling Noteholder diligently and expeditiously proceeds to cure such Non-Monetary Default, (ii) the Controlling Noteholder makes all cure payments that it is permitted to make in accordance with the terms and provisions of Section 11(a) hereof, (iii) such additional period of time does not exceed sixty (60) days, (iv) such Non-Monetary Default is not caused by an Insolvency Proceeding or during such period of time that the Controlling Noteholder has to cure a Non-Monetary Default in accordance with this Section 11(d) (the “Non-Monetary Default Cure Period”), an Insolvency Proceeding does not occur and (v) during such Non-Monetary Default Cure Period, there is no material adverse effect
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on the Mortgage Loan Borrower or the Mortgaged Property or the value of the Mortgage Loan as a result of such Non-Monetary Default or the attempted cure. The Non-Monetary Default Notice shall contain a statement that the Controlling Noteholder’s or the Operating Advisor’s failure to cure such Non-Monetary Default within the applicable Non-Monetary Default Cure Period after receiving such notice will result in the termination of the right to cure such Non-Monetary Default. The Controlling Noteholder shall not contact the Mortgage Loan Borrower in order to effect any cures under Sections 11(a) or this 11(d) unless it is in conjunction with the Special Servicer or the Controlling Noteholder has obtained the prior written consent of the Senior Noteholder.
Section 12. Purchase of Senior Note By Junior Noteholder. The Junior Noteholder shall have the right, by written notice to the Senior Noteholder (a “Noteholder Purchase Notice”), delivered at any time an Event of Default under the Mortgage Loan has occurred and is continuing, to purchase, in immediately available funds, the Senior Note in whole but not in part at the applicable Defaulted Mortgage Loan Purchase Price. Upon the delivery of the Noteholder Purchase Notice to the Senior Noteholder, the Senior Noteholder shall sell (and the Junior Noteholder shall purchase) the Senior Note (including, without limitation, any Notes therein) at the applicable Defaulted Mortgage Loan Purchase Price, on a date (the “Defaulted Note Purchase Date”) not less than ten (10) and not more than thirty (30) days after the date of receipt of the Noteholder Purchase Notice, as shall be established by the Senior Noteholder. The Noteholder Purchase Notice shall contain a statement that the Junior Noteholder’s failure to purchase the Senior Notes on a Defaulted Note Purchase Date will result in the termination of such right. The Junior Noteholder agrees that the sale of the Senior Note shall comply with all requirements of the Servicing Agreement and that all costs and expenses related thereto shall be paid by the Junior Noteholder. The Defaulted Mortgage Loan Purchase Price shall be calculated by the Senior Noteholder (or the Servicer on its behalf) three (3) Business Days prior to the Defaulted Note Purchase Date (and such calculation shall be accompanied by a listing of all amounts included in the Defaulted Mortgage Loan Purchase Price), and shall, absent manifest error, be binding upon the Junior Noteholder. Concurrently with the payment to the Senior Noteholder in immediately available funds of its respective portion of the applicable Defaulted Mortgage Loan Purchase Price, the Senior Noteholder will execute at the sole cost and expense of the Junior Noteholder in favor of the Junior Noteholder assignment documentation which will assign the Senior Note and the Mortgage Loan Documents without recourse, representations or warranties (except the Senior Noteholder, and the Junior Noteholder, as applicable, will represent and warrant that it had good and marketable title to, was the sole owner and holder of, and had power and authority to deliver the Mortgage Loan or Note, as applicable, free and clear of all liens and encumbrances (other than the interest created by the Junior Note)). The right of the Junior Noteholder to purchase the Senior Note shall automatically terminate upon a foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure with respect to the Mortgaged Property (and the Senior Noteholder shall give the Junior Noteholder ten (10) days notice of its intent with respect to such action). Notwithstanding the foregoing sentence, if title to the Mortgaged Property is transferred to the Servicer (or other nominee on behalf of the Noteholders) less than ten (10) days after the acceleration of the Mortgage Loan, the Senior Noteholder shall notify the Junior Noteholder of such transfer and the Junior Noteholder shall have a fifteen (15) day period from the date of such notice from the Senior Noteholder to deliver the Noteholder Purchase Notice to the Senior Noteholder, in which case the Junior Noteholder will be obligated to purchase the Mortgaged
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Property, in immediately available funds, within such fifteen (15) day period at the applicable Defaulted Mortgage Loan Purchase Price.
Section 13. Representations of Junior Noteholder. The Junior Noteholder represents, and it is specifically understood and agreed, that it is acquiring its Junior Note for its own account in the ordinary course of its business and the Senior Noteholder shall otherwise have no liability or responsibility to the Junior Noteholder except as expressly provided herein or for actions that are taken or omitted to be taken by the Senior Noteholder that constitute gross negligence or willful misconduct or that constitute a breach of this Agreement. The Junior Noteholder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene its charter or any law or contractual restriction binding upon the Junior Noteholder, and that this Agreement is the legal, valid and binding obligation of the Junior Noteholder enforceable against the Junior Noteholder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. The Junior Noteholder represents and warrants that it is duly organized, validly existing, in good standing and possesses of all licenses and authorizations necessary to carry on its business. The Junior Noteholder represents and warrants that (a) this Agreement has been duly executed and delivered by the Junior Noteholder, (b) to the Junior Noteholder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Junior Noteholder have been obtained or made and (c) to the Junior Noteholder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against the Junior Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
The Junior Noteholder acknowledges that the Senior Noteholder does not owe the Junior Noteholder any fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as provided herein, need not consult with the Junior Noteholder with respect to any action taken by the Senior Noteholder in connection with the Mortgage Loan.
The Junior Noteholder expressly and irrevocably waives for itself and any Person claiming through or under the Junior Noteholder any and all rights that it may have under Section 1315 of the New York Real Property Actions and Proceedings Law or the provisions of any similar law which purports to give a junior loan Noteholder the right to initiate any loan enforcement or foreclosure proceedings.
Section 14. Representations of the Initial Senior Noteholder. The Initial Senior Noteholder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene the Initial Senior Noteholder’s charter or any law or contractual restriction binding upon the Initial Senior Noteholder, and that this Agreement is the legal, valid and binding obligation of the Initial Senior Noteholder enforceable against the Initial Senior Noteholder in accordance with its terms. The Initial Senior Noteholder represents and warrants
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that it is duly organized, validly existing, in good standing and possession of all licenses and authorizations necessary to carry on its business. The Initial Senior Noteholder represents and warrants that (a) this Agreement has been duly executed and delivered by the Initial Senior Noteholder, (b) to the Initial Senior Noteholder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Initial Senior Noteholder has been obtained or made and (c) to the Initial Senior Noteholder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against the Initial Senior Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
Section 15. Independent Analysis of the Junior Noteholder. The Junior Noteholder acknowledges that it has, independently and without reliance upon the Initial Senior Noteholder, except with respect to the representations and warranties provided by the Initial Senior Noteholder herein, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to purchase the Junior Note and the Junior Noteholder accepts responsibility therefor. The Junior Noteholder hereby acknowledges that, other than the representations and warranties provided herein, the Senior Noteholder has made no representations or warranties with respect to the Mortgage Loan, subject to such representations and warranties as provided by the Senior Noteholder herein, and that the Senior Noteholder shall have no responsibility for (i) the collectibility of the Mortgage Loan, (ii) the validity, enforceability or legal effect of any of the Mortgage Loan Documents or the title insurance policy or policies or any survey furnished or to be furnished to the Senior Noteholder in connection with the origination of the Mortgage Loan, (iii) the validity, sufficiency or effectiveness of the lien created or to be created by the Mortgage Loan Documents, or (iv) the financial condition of the Mortgage Loan Borrower. The Junior Noteholder assumes all risk of loss in connection with the Junior Note except as specifically set forth herein, and the Senior Noteholder assumes all risk of loss in connection with the Senior Note except as specifically set forth herein.
Section 16. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby among any of the Noteholders as a partnership, association, joint venture or other entity. The Senior Noteholder shall have no obligation whatsoever to offer to the Junior Noteholder the opportunity to purchase a Note interest in any future loans originated by the Senior Noteholder or its Affiliates and if the Senior Noteholder chooses to offer to the Junior Noteholder the opportunity to purchase a Note interest in any future mortgage loans originated by the Senior Noteholder or its Affiliates, such offer shall be at such purchase price and interest rate as the Senior Noteholder chooses, in its sole and absolute discretion. The Junior Noteholder shall not have any obligation whatsoever to purchase from the Senior Noteholder a Note interest in any future loans originated by the Senior Noteholder or its Affiliates.
Section 17. Not a Security. The Junior Note shall not be deemed to be a security within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934.
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Section 18. Other Business Activities of the Noteholders. The Junior Noteholder acknowledges that the Senior Noteholder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any direct or indirect parent or Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any Affiliate thereof or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower, any principal thereof or any Affiliate thereof (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 19. Sale of the Junior Note and the Senior Note.
(a) The Junior Noteholder agrees that it will not Transfer all or any portion of the Junior Note without the Senior Noteholder’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided, that (i) the Junior Noteholder shall have the right to Transfer its respective Note, or any portion thereof, to a Qualified Institutional Lender without obtaining the Senior Noteholder’s prior written consent, provided, that promptly after the Transfer the Senior Noteholder is provided with (x) a representation from a transferee or the Junior Noteholder certifying that such transferee is a Qualified Institutional Lender, (y) a copy of the assignment and assumption agreement referred to in Section 20 and (z) such transfer would not cause the Junior Note to be held by more than five persons nor cause there to be no one person owning a majority of the Junior Note and (ii) if the Junior Noteholder wants to Transfer the Junior Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender after a Securitization, no consent of the Senior Noteholder shall be required, but the Junior Noteholder shall first obtain (and deliver to the Senior Noteholder) Rating Agency Confirmation. If the Junior Note is held by more than one Junior Noteholder at any time, the holders of a majority of the Principal Balance of the Junior Note shall immediately appoint a representative to exercise all rights of the Junior Note hereunder. Notwithstanding the foregoing, without the Senior Noteholder’s prior consent, which may be withheld in the Senior Noteholder’s sole discretion, the Junior Noteholder shall not Transfer all or any portion of the Junior Note to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The Junior Noteholder agrees it will pay the expenses of the Senior Noteholder (including all expenses of the Master Servicer and the Special Servicer) in connection with any such Transfer. The Agent shall provide two Business Days prior written notice to each Rating Agency of any Transfer.
(b) Notwithstanding the foregoing, the Junior Noteholder shall have the right, without the need to obtain the consent of the Senior Noteholder or any other Person, to Transfer 49% or less (in the aggregate) of its interest in the Junior Note to a Person that has no direct rights with respect to the Junior Note or to a Qualified Institutional Lender; provided that any such Transfer shall be made in accordance with the terms of this Section 19; provided, further that the Junior Noteholder shall not Transfer all or any portion of the Junior Note to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be void ab initio, absolutely null and void and shall vest no rights in the purported
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transferee. All Transfers under Section 19(a) and (b) shall be made upon written notice to the Senior Noteholder not later than the date of such Transfer, and each transferee shall (i) execute an assignment and assumption agreement whereby such transferee assumes all or a ratable portion, as the case may be, of the obligations of the Junior Noteholder hereunder with respect to the Junior Note from and after the date of such assignment (or, in the case, of a pledge, collateral assignment or other encumbrance made in accordance with Section 19(e) by the Junior Noteholder of the Junior Note solely as security for a loan to the Junior Noteholder made by a third-party lender whereby the Junior Noteholder remains fully liable under this Agreement, on or before the date on which such lender succeeds to the rights of the Junior Noteholder by foreclosure or otherwise, such third-party lender executes an agreement that such lender shall be bound by the terms and provisions of this Agreement and the obligations of the Junior Noteholder hereunder) and (ii) agree in writing to be bound by the Servicing Agreement, unless the Servicing Agreement is not then in effect with respect to the Mortgage Loan, in which event the parties will enter into or agree to be bound by any replacement servicing agreement therefor in accordance with the provisions hereof. Upon the consummation of a Transfer of all or any portion of the Junior Note in accordance with this Agreement, the transferring Person shall be released from all liability arising under this Agreement with respect to the Junior Note (or the portion thereof that was the subject of such Transfer), for the period after the effective date of such Transfer (it being understood and agreed that the foregoing release shall not apply in the case of a sale, assignment, transfer or other disposition of a participation interest in the Junior Note as described in clause (c) below). In connection with any such permitted transfer of a portion of the Junior Note and for all purposes of this Agreement, the Senior Noteholder need only recognize the majority holder of the Junior Note for purposes of notices, consents and other communications between the Senior Noteholder and such majority holder of the Junior Note shall be the only Person authorized hereunder to exercise any rights of the Junior Noteholder under this Agreement; provided, however, the majority holder of the Junior Note may from time to time designate any other Person as an additional party entitled to receive notices, consents and other communications and/or to exercise rights on behalf of the Junior Noteholder hereunder by delivering written notice thereof to the Senior Noteholder, and, from and after delivery of such notice, such designee shall be so authorized hereunder and shall be the only party entitled to receive such notices, consents and such other communications and/or to exercise such rights.
(c) In the case of any sale, assignment, transfer or other disposition of a participation interest in a Note, (i) such Noteholder’s obligations under this Agreement shall remain unchanged, (ii) such Noteholder shall remain solely responsible for the performance of such obligations, (iii) the other Noteholder and any Persons acting on its behalf shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and the Servicing Agreement, and (iv) all amounts payable hereunder shall be determined as if such Noteholder had not sold such participation interest; provided, however, that if the applicable participant is a Qualified Institutional Lender (and delivers to the other Noteholder a certification from an authorized officer confirming its status as a Qualified Institutional Lender), such Noteholder, by written notice to the other Noteholder, may delegate to such participant such Noteholder’s right to exercise the rights of the Controlling Noteholder hereunder and under the Servicing Agreement; provided, further, however, that upon the occurrence of a Control Appraisal Period with respect to the Junior Note, the aforesaid delegation of rights shall terminate and be of no further force and effect.
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(d) The Senior Noteholder, shall have the right to Transfer all or any portion of either Note without the prior consent of any Noteholder to any party; provided, however, that without the non-transferring Noteholder’s prior consent, the Senior Noteholder shall not Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. None of the provisions of this Section 19(d) shall apply in the case of (i) a sale of the Senior Note in accordance with the terms and conditions of the Securitization Servicing Agreement or (ii) any issuance of certificates in connection with any Securitization or any sale of such certificates.
(e) Notwithstanding any other provision hereof, any Noteholder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit or repurchase facility to such Noteholder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Note Pledgee”), on terms and conditions set forth in this Section 19(e), it being further agreed that a financing provided by a Note Pledgee to a Noteholder or any person which Controls such Noteholder that is secured by such Noteholder’s interest in the applicable Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without (a) prior to Securitization, the consent of each other Noteholder and, (b) after Securitization, Rating Agency Confirmation. Upon written notice by the applicable Noteholder to the other Noteholders and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each of the other holders agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Noteholder in respect of its obligations under this Agreement of which default such Noteholder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Noteholder in respect of its obligations to the other Noteholder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Noteholder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Noteholder and accept any cure thereof by such Note Pledgee which such pledging Noteholder has the right (but not the obligation) to effect hereunder, as if such cure were made by such pledging Noteholder; (v) that such other Noteholder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Noteholder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Noteholders and any Servicer by such Note Pledgee that the pledging Noteholder is in default, beyond any applicable cure periods, under the pledging Noteholder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Noteholder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Noteholder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Noteholder or Servicer would otherwise be obligated to pay to the pledging Noteholder from time to time pursuant to this Agreement or any Servicing Agreement. Any pledging Noteholder hereby unconditionally and absolutely releases the other Noteholders and any Servicer from any
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liability to the pledging Noteholder on account of any Noteholder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or any such other Noteholder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Noteholder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Noteholders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Noteholder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Noteholder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 19(e) shall remain effective as to any Noteholder (and any Servicer) unless and until such Note Pledgee shall have notified any such Noteholder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(f) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Noteholder then such Noteholder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) The loan (the “Conduit Inventory Loan”) made by the Conduit to such Noteholder to finance the acquisition and holding of its Note will require a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) The Conduit Credit Enhancer and conduit manager (if Moody’s rates the Securitization) will be a Qualified Institutional Lender;
(iii) Such Noteholder will pledge (or sell, transfer or assign as part of a repurchase facility) its interest in the applicable Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) The Conduit Credit Enhancer and the Conduit will agree that, if such Noteholder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Noteholder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Noteholder’s Note to the Conduit Credit Enhancer; and
(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not, without obtaining the consent of each other Noteholder, have any greater right to acquire the interests in the Note pledged by such Noteholder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
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Section 20. Registration of Transfer. In connection with any Transfer of a Note (but excluding any Note Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement whereby such transferee assumes all of the obligations of the applicable Noteholder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the restriction on Transfers set forth in Section 19, from and after the date of such assignment. Notwithstanding the preceding sentence, a Trustee shall not be required to execute an assignment and assumption agreement in connection with any Transfer of a Note if the obligations are assumed pursuant to the Securitization Servicing Agreement. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 19 and this Section 20. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Noteholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and any other Noteholder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement. Upon a Securitization of the Senior Note, the Certificate Administrator (or if there is no Certificate Administrator, the Trustee) shall automatically become and be the Agent.
Section 21. Registration of the Senior Note and the Junior Note. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial Note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in Section 20, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement, except in the case of the Initial Senior Noteholder and the Initial Junior Noteholder who may hold their Notes through a nominee. Upon request of a Noteholder, the Agent shall provide such party with the names and addresses of the Noteholders. To the extent another party is appointed as Agent hereunder, the Senior Noteholder and the Junior Noteholder hereby designates such person as its agent under this Section 21 solely for purposes of maintaining the Note Register.
Section 22. Statement of Intent. The Agent and each Noteholder intend that the Notes be classified and maintained as a grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code that is a fixed investment trust within the meaning of Treasury Regulation §301.7701-4(c), and the parties will not take any action inconsistent with such classification. It is neither the purpose nor the intent of this Agreement to create a partnership, joint venture, “taxable mortgage pool” or association taxable as a corporation among the parties.
Section 23. No Pledge. This Agreement shall not be deemed to represent a pledge of any interest in any Mortgage Loan by the Senior Noteholder to the Junior Noteholder. Except as otherwise provided in this Agreement and the Servicing Agreement, the Junior Noteholder shall not have any interest in any property taken as security for any Mortgage Loan, provided, however, that if any such property or the proceeds of any sale, lease or other disposition thereof shall be received, then the Junior Noteholder shall be entitled to receive its share of such application in accordance with the terms of this Agreement and/or the Servicing Agreement.
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Section 24. Cooperation in Securitization.
(a) Each Noteholder acknowledges that any Noteholder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, (x) at the request of the Senior Noteholder, the Junior Noteholder shall use reasonable efforts, at the Senior Noteholder’s expense, to satisfy, and to cooperate with the Senior Noteholder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which the Senior Noteholder customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with the Senior Noteholder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect the Securitization; provided, however, that either in connection with the initial Securitization or otherwise at any time prior to such initial Securitization the Junior Noteholder shall not be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments, the Junior Noteholder or (ii) materially increase the Junior Noteholder’s obligations or materially decrease the Junior Noteholder’s rights, remedies or protections. In connection with the Securitization, the Junior Noteholder agrees to provide for inclusion in any disclosure document relating to the related Securitization such information concerning the Junior Noteholder and the other Notes as the Senior Noteholder reasonably determines to be necessary or appropriate; and (y) the Junior Noteholder covenants and agrees that it shall cooperate with the reasonable requests of each Rating Agency and Senior Noteholder in connection with the Securitization, as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to it and the other Notes in any Securitization document. The Junior Noteholder acknowledges that the information provided by it to the Senior Noteholder may be incorporated into the offering documents for a Securitization. The Senior Noteholder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, the Junior Noteholder.
(b) The Senior Noteholder may, at its election, deliver to the Junior Noteholder drafts of the preliminary and final Securitization offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the Securitization Servicing Agreement at such time as the Junior Noteholder deems necessary or appropriate. The Junior Noteholder may, at its election, review and comment thereon insofar as it relates to the Junior Note and/or the Junior Noteholder, and, if the Junior Noteholder elects to review and comment, the Junior Noteholder shall review and comment thereon as soon as possible but in no event later than two (2) Business Days of its receipt thereof or (3) three Business Days after receipt, in the case of the first draft thereof delivered to the Junior Noteholder and if the Junior Noteholder fails to respond within such time, the Junior Noteholder shall be deemed to have elected to not comment thereon, provided that if Junior Noteholder elects to review and comment, any such review and comments with respect to the final draft distributed in connection with the preparation of the preliminary and final offering memoranda for printing shall be made no later than 9:00 am, New York City time, on the Business Day following its receipt thereof and if the
41 |
Junior Noteholder fails to respond by such time, the Junior Noteholder shall be deemed to have elected to not comment thereon. In the event of any disagreement between the Junior Noteholder with respect to the preliminary and final offering memoranda, prospectus supplement, free writing prospectus or any other disclosure documents the Senior Noteholder’s determination shall control. Junior Noteholder has no obligation and shall have no liability with respect to any such offering documents other than the accuracy of any comments it elects to make regarding itself.
(c) Notwithstanding anything herein to the contrary, the Senior Noteholder acknowledges and agrees that (i) the Junior Noteholder shall not be required to incur any out-of-pocket expenses in connection with a Securitization of the Senior Note and (ii) the Junior Noteholder shall not be required to disclose any of the beneficial owners of the managed account on behalf of which it is holding the Junior Note.
Section 25. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 26. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
42 |
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 27. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto (other than as set forth in Section 5(b)). The Agent shall provide two Business Days prior written notice to each Rating Agency of any material modification to this Agreement.
Section 28. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Except as provided herein, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 19, each Noteholder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the Senior Noteholder or the Junior Noteholder, as applicable, hereunder, including, without limitation, the right to make further assignments and grant additional Notes.
Section 29. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 30. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 31. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 32. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 33. Withholding Taxes.
(a) If the Senior Noteholder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to the Junior Noteholder with respect to the Mortgage Loan as a result of the Junior Noteholder constituting a
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Non-Exempt Person, the Senior Noteholder, in its capacity as servicer, shall be entitled to do so with respect to the Junior Noteholder’s interest in such payment (all withheld amounts being deemed paid to the Junior Noteholder), provided that Senior Noteholder shall furnish such Junior Noteholder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Junior Noteholder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which the Junior Noteholder is subject to tax.
(b) The Junior Noteholder shall and hereby agrees to indemnify the Senior Noteholder against and hold the Senior Noteholder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Senior Noteholder (or the Servicer on its behalf) to withhold Taxes from payment made to the Junior Noteholder in reliance upon any representation, certificate, statement, document or instrument made or provided by the Junior Noteholder to the Senior Noteholder in connection with the obligation of the Senior Noteholder to withhold Taxes from payments made to the Junior Noteholder, it being expressly understood and agreed that (i) the Senior Noteholder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) the Junior Noteholder shall, upon request of the Senior Noteholder and at its sole cost and expense, defend any claim or action relating to the foregoing indemnification using counsel selected by the Senior Noteholder.
(c) The Junior Noteholder represents to the Senior Noteholder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Senior Noteholder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, the Junior Noteholder shall deliver to the Senior Noteholder or Servicer, as applicable, evidence satisfactory to the Senior Noteholder substantiating that the Junior Noteholder is not a Non-Exempt Person and that the Senior Noteholder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if the Junior Noteholder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Senior Noteholder an Internal Revenue Service Form W-9 and (ii) if the Junior Noteholder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, the Junior Noteholder shall satisfy the requirements of the preceding sentence by furnishing to the Senior Noteholder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN, or successor forms, as may be required from time to time, duly executed by the Junior Noteholder, as evidence of the Junior Noteholder’s exemption from the withholding of United States tax with respect thereto. The Senior Noteholder shall not be obligated to make any payment hereunder to the Junior Noteholder in respect of its Junior Note or otherwise until the Junior Noteholder shall
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have furnished to the Senior Noteholder the requested forms, certificates, statements or documents.
Section 34. Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than the Junior Note) shall be held by the Senior Noteholder (or a custodian acting on behalf of the Senior Noteholder) on behalf of the registered holders of the Notes.
Section 35. Servicing of the Loan. Pursuant to the Servicing Agreement, the Master Servicer (whose identity may change from time to time as provided in the Servicing Agreement) will be appointed as the servicer of the Mortgage Loan and the Special Servicer will be appointed as the special servicer of the Mortgage Loan, and the parties agree that the Master Servicer and Special Servicer will service the Mortgage Loan on behalf of the Senior Noteholder and the Junior Noteholder pursuant to the Servicing Agreement and subject to the terms hereof.
Section 36. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
All notices and reports (including, without limitation, Asset Status Reports) required to be delivered hereunder by the Senior Noteholder (or the Servicer on its behalf) to the Controlling Noteholder (or its Operating Advisor), or by the Controlling Noteholder (or its Operating Advisor) to the Senior Noteholder (or the Servicer on its behalf), shall also be delivered by the applicable party to the Junior Noteholder.
Section 37. Broker. The Junior Noteholder and the Senior Noteholder represent to each other that no broker was responsible for bringing about this transaction.
Section 38. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
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(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20; and
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder.
Section 39. Termination of Agent. The Agent may be terminated at any time upon ten (10) days prior written notice from the Senior Noteholder. In the event that the Agent is terminated pursuant to this Section 39, all of its rights and obligations under this Agreement shall be terminated, other than any rights or obligations that accrued prior to the date of such termination.
The Agent may resign at any time upon notice, so long as a successor Agent, reasonably satisfactory to the Noteholders, has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. UBS Real Estate Securities Inc., as Initial Agent, may transfer its rights and obligations to the Servicer, as successor Agent, at any time without the consent of any Noteholder. UBS Real Estate Securities Inc., as Initial Agent, shall promptly and diligently attempt to cause such Servicer to act as successor Agent, and, if such Servicer declines to act in such capacity, shall promptly and diligently attempt to cause a similar servicer to act as successor Agent. The termination or resignation of such Servicer, as Servicer under the Servicing Agreement, shall be deemed a termination or resignation of such Servicer as Agent under this Agreement. Notwithstanding anything to the contrary in this Agreement, upon a Securitization of the Senior Note, the Certificate Administrator shall automatically become and be the Agent.
Section 40. Resizing. In connection with the Mortgage Loan, the Junior Noteholder agrees that if, in connection with the Securitization, it is advantageous to resize or otherwise change the size of the Senior Note, the Junior Noteholder shall reasonably cooperate with the Senior Noteholder to resize the Senior Note in connection therewith and shall reasonably cooperate with the Senior Noteholder to amend this Agreement to split the Senior Note into a Note A and Note B and recharacterize the Junior Note as Note C with the same rights and remedies as set forth herein. In connection with the resizing of the Notes, the Senior Noteholder may allocate its rights hereunder among the new notes obtained by such Noteholder in any manner in its sole discretion.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Initial Noteholders have caused this Agreement to be duly executed as of the day and year first above written.
UBS REAL ESTATE SECURITIES INC., as Initial Senior Noteholder and Initial Agent |
||
By: | /s/ David Schell | |
Name: David Schell Title: Executive Director |
By: | /s/ Nicholas Galeone | |
Name: Nicholas Galeone Title: Executive Director |
UBS
REAL ESTATE SECURITIES INC., as Initial Junior Noteholder |
||
By: | /s/ David Schell | |
Name: David Schell Title: Executive Director |
By: | /s/ Nicholas Galeone | |
Name: Nicholas Galeone Title: Executive Director |
Agreement Between Noteholders – 200 Helen Street
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A. Description of Mortgage Loan:
Mortgage Loan: | Loan Agreement, dated as of July 24, 2015 between UBS Real Estate Securities, Inc., as Lender and the Mortgage Loan Borrower |
Mortgage Loan Borrower: | NAKASH 200 HELEN STREET LLC |
Date of the Mortgage Loan and the Mortgage: | July 24, 2015 |
Initial Principal Amount of Mortgage Loan: | $51,500,000.00 |
Location of Mortgaged Property: | South Plainfield, New Jersey |
Initial Maturity Date: | August 6, 2025 |
B. Description of Note Interests:
Initial Senior Note Principal Balance: | $41,640,000.00 |
Initial Junior Note Principal Balance: | $10,000,000.00 |
Initial Senior Note Percentage Interest: | 80.5825% |
Initial Junior Note Percentage Interest: | 19.4175% |
Initial Senior Note Rate: | 4.2845% |
Initial Junior Note Rate: | 4.6965% |
A-1 |
EXHIBIT B
Initial Senior Noteholder:
UBS
Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: David Schell
Email:
david.schell@ubs.com
with a copy to:
Chad Eisenberger, Esq.
UBS Securities LLC
299 Park Avenue
New
York, New York 10171
Email: chad.eisenberger@ubs.com
B-1 |
Initial Junior Noteholder:
UBS
Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: David Schell
Email:
david.schell@ubs.com
with a copy to:
Chad Eisenberger, Esq.
UBS Securities LLC
299 Park Avenue
New
York, New York 10171
Email: chad.eisenberger@ubs.com
B-2 |
EXHIBIT
C
PERMITTED FUND MANAGERS
1. Apollo Global Real Estate
2. Archon Capital, L.P.
3. AREA Property Partners
4. BlackRock, Inc.
5. The Blackstone Group International Ltd.
6. Capital Trust, Inc.
7. Clarion Partners
8. Colony Capital, Inc.
9. DLJ Real Estate Capital Partners
10. Eightfold Real Estate Capital, L.P.
11. Fortress Investment Group LLC
12. Garrison Investment Group
13. Goldman, Sachs & Co.
14. iStar Financial Inc.
15. J.E. Roberts Companies
16. Lend-Lease Real Estate Investments
17. LoanCore Capital
18. Lonestar Funds
19. Praedium Group
20. Raith Capital Partners, LLC
21. Rialto Capital Management, LLC
22. Rockpoint Group
23. Starwood Capital/Starwood Financial Trust
24. Torchlight Investors
25. Walton Street Capital, LLC
26. Westbrook Partners
27. WestRiver Capital
28. Whitehall Street Real Estate Fund, L.P.
29. Square Mile Capital Management LLC
30. USAA Real Estate Company
31. Prima Capital Advisors LLC
C-1 |
Exhibit 4.8
EXECUTION VERSION
CO-LENDER
AGREEMENT
Dated
as of August 18, 2015
by and among
UBS
REAL ESTATE SECURITIES INC.
(Initial Note A-1 Holder)
and
UBS
REAL ESTATE SECURITIES INC.
(Initial Note A-2 Holder)
and
UBS
REAL ESTATE SECURITIES INC.
(Initial Note A-3 Holder)
WPC Department Store Portfolio
TABLE OF CONTENTS
Page | ||
Section 1 | Definitions | 1 |
Section 2 | Servicing of the Mortgage Loan | 17 |
Section 3 | Priority of Payments | 23 |
Section 4 | Workout | 24 |
Section 5 | Administration of the Mortgage Loan | 24 |
Section 6 | Rights of the Controlling Note Holder | 29 |
Section 7 | Appointment of Special Servicer | 32 |
Section 8 | Payment Procedure | 32 |
Section 9 | Limitation on Liability of the Note Holders | 33 |
Section 10 | Bankruptcy | 34 |
Section 11 | Representations of the Note Holders | 34 |
Section 12 | No Creation of a Partnership or Exclusive Purchase Right | 35 |
Section 13 | Other Business Activities of the Note Holders | 35 |
Section 14 | Sale of the Notes | 35 |
Section 15 | Registration of the Notes and Each Note Holder | 38 |
Section 16 | Governing Law; Waiver of Jury Trial | 39 |
Section 17 | Submission To Jurisdiction; Waivers | 39 |
Section 18 | Modifications | 40 |
Section 19 | Successors and Assigns; Third Party Beneficiaries | 40 |
Section 20 | Counterparts | 40 |
Section 21 | Captions | 40 |
Section 22 | Severability | 40 |
Section 23 | Entire Agreement | 40 |
Section 24 | Withholding Taxes | 41 |
Section 25 | Custody of Mortgage Loan Documents | 42 |
Section 26 | Cooperation in Securitization | 42 |
Section 27 | Notices | 43 |
Section 28 | Broker | 44 |
Section 29 | Certain Matters Affecting the Agent | 44 |
Section 30 | Resignation of Agent | 44 |
Section 31 | Resizing | 45 |
i |
THIS CO-LENDER AGREEMENT (this “Agreement”), dated as of August 18, 2015 by and among UBS REAL ESTATE SECURITIES INC. (“UBSRES” and together with its successors and assigns in interest, in its capacity as initial owner of the Note A-1, the “Initial Note A-1 Holder” and in its capacity as the initial agent, the “Initial Agent”), UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as initial owner of the Note A-2, the “Initial Note A-2 Holder”) and UBS REAL ESTATE SECURITIES INC. (together with its successors and assigns in interest, in its capacity as initial owner of the Note A-3, the “Initial Note A-3 Holder” and, together with the Initial Note A-1 Holder and the Initial Note A-2 Holder, the “Initial Note Holders”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), UBSRES originated a certain loan described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) (the “Mortgage Loan”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which was evidenced, inter alia, by two promissory notes (as amended, modified or supplemented, the “Notes”) (i) one promissory note in the original principal amount of $15,000,000 (“Note A-1”) made by the Mortgage Loan Borrower in favor of the Initial Note A-1 Holder (“Initial Note A-1”), (ii) one promissory note in the original principal amount of $25,000,000 (“Note A-2”) made by the Mortgage Loan Borrower in favor of the Initial Note A-2 Holder (“Initial Note A-2”) and (iii) one promissory note in the original principal amount of $17,170,000 (“Note A-3”), made by the Mortgage Loan Borrower in favor of the Initial Note A-3 Holder (“Initial Note A-3”); and secured by a first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real property located as described in the Loan Agreement (collectively, the “Mortgaged Property”); and
WHEREAS, the Initial Note A-1 Holder, the Initial Note A-2 Holder and the Initial Note A-3 Holder desire to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold Note A-1, Note A-2 and Note A-3, respectively;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto (or to the analogous term) in the Lead Securitization Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Acceptable Insurance Default” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Affiliate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.
“Agent Office” shall mean the designated office of the Agent in the State of New York, which office at the date of this Agreement is the office of the Initial Note A-3 Holder listed on Exhibit B hereto and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Noteholders.
“Agreement” shall mean this Agreement between Note Holders, the exhibits and schedule hereto and all amendments hereof and supplements hereto.
“Approved Servicer” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity that is responsible for managing or administering a Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of such Note).
“Certificate Administrator” shall mean the certificate administrator appointed as provided in the Lead Securitization Servicing Agreement.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collection Account” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.
“Conduit” shall have the meaning assigned to such term in Section 14(d).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).
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“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controls” have meanings correlative thereto.)
“Controlling Class Representative” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.
“Controlling Note Holder” shall mean the Note A-2 Holder; provided that at any time Note A-2 is included in a Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement; provided that, if at any time 50% or more of Note A-2 (or the class of securities issued under the Note A-2 PSA designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder”) is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, Note A-2 (or the class of securities issued under the Note A-2 PSA designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder”) shall not be entitled to exercise any rights of the Controlling Note Holder.
“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
“DBRS” shall mean DBRS, Inc., and its successors in interest.
“Depositor” shall mean (a) with respect to the Note A-1 Securitization, the depositor under the Note A-1 PSA, (b) with respect to the Note A-2 Securitization, the depositor under the Note A-2 PSA, and (c) with respect to the Note A-3 Securitization, Credit Suisse First Boston Mortgage Securities Corp..
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.
“Fitch” shall mean Fitch Ratings, Inc., and its successors in interest.
“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
3 |
“Initial Note A-3 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note Holders” shall have the meaning assigned to such term in the preamble to this Agreement.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided, however, that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.
“Interest Rate” shall mean the Interest Rate (as defined in the Mortgage Loan Documents).
“Interested Person” shall have the meaning given to such term or one or more analogous terms in the Lead Securitization Servicing Agreement.
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity that holds any Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“KBRA” shall mean Kroll Bond Rating Agency, Inc. and its successors in interest.
“Lead Securitization” shall mean (a) during the period from and after the Note A-3 Securitization Date and prior to the Note A-2 Securitization Date, the Note A-3 Securitization, and (b) on and after the Note A-2 Securitization Date, the Note A-2 Securitization.
“Lead Securitization Note” shall mean (a) during the period from and after the Note A-3 Securitization Date and prior to the Note A-2 Securitization Date, Note A-3, and (b) on and after the Note A-2 Securitization Date, Note A-2.
“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note.
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“Lead Securitization Servicing Agreement” shall mean (i) during the period from and after the Note A-3 Securitization Date and prior to the Note A-2 Securitization Date, the Note A-3 PSA, (ii) on and after the Note A-2 Securitization Date, the Note A-2 PSA, and (iii) on and after the date on which the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the “Lead Securitization Servicing Agreement” shall be determined in accordance with the second paragraph of Section 2(a).
“Lead Securitization Controlling Class Representative” shall mean the “Controlling Class Representative” or similar term as defined in the Lead Securitization Servicing Agreement.
“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.
“Major Decisions” shall have the meaning given to such term or one or more analogous terms in the Lead Securitization Servicing Agreement; provided that at any time none of Note A-1, Note A-2 or Note A-3 is included in a Securitization “Major Decision” shall mean:
(i) any proposed or actual foreclosure upon or comparable conversion (which shall include acquisitions of any REO Property) of the ownership of the property or properties securing the Mortgage Loan if it comes into and continues in default;
(ii) any modification, consent to a modification or waiver of any monetary term (other than late fees and default interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Mortgage Loan or any extension of the maturity date of the Mortgage Loan;
(iii) following a default or an event of default with respect to the Mortgage Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or initiation of any proceedings, judicial or otherwise, under the related Mortgage Loan Documents;
(iv) any sale of the Mortgage Loan (when it is a Defaulted Mortgage Loan) or REO Property for less than the applicable Purchase Price (as defined in the Lead Securitization Servicing Agreement);
(v) any determination to bring the Mortgaged Property or an REO Property into compliance with applicable environmental laws or to otherwise address any Hazardous Materials (as defined in the Lead Securitization Servicing Agreement) located at the Mortgaged Property or an REO Property;
(vi) any release of material collateral or any acceptance of substitute or additional collateral for the Mortgage Loan or any consent to either of the foregoing, other than if required pursuant to the specific terms of the related Mortgage Loan Documents and for which there is no lender discretion;
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(vii) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Mortgage Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or interests in the borrower;
(viii) any incurrence of additional debt by a borrower or any mezzanine financing by any beneficial owner of a borrower (to the extent that the lender has consent rights pursuant to the related Mortgage Loan Documents);
(ix) any material modification, waiver or amendment of an intercreditor agreement, co-lender agreement or similar agreement with any mezzanine lender or subordinate debt holder related to the Mortgage Loan, or any action to enforce rights (or decision not to enforce rights) with respect thereto, or any material modification, waiver or amendment thereof;
(x) any property management company changes, including, without limitation, approval of the termination of a manager and appointment of a new property manager or franchise changes (in each case, if the lender is required to consent or approve such changes under the Mortgage Loan Documents);
(xi) releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Mortgage Loan Documents and for which there is no lender discretion;
(xii) any acceptance of an assumption agreement releasing a borrower, guarantor or other obligor from liability under the Mortgage Loan other than pursuant to the specific terms of such Mortgage Loan and for which there is no lender discretion;
(xiii) any determination of an Acceptable Insurance Default;
(xiv) any determination by the Master Servicer to transfer the Mortgage Loan to the Special Servicer under the circumstances described in paragraph (c) of the definition of “Specially Serviced Loan” (as defined in the Lead Securitization Servicing Agreement); or
(xv) any approval of a Major Lease (as defined in the Mortgage Loan Documents) to the extent lender’s approval is required by the Mortgage Loan Documents.
“Master Servicer” shall mean the master servicer appointed as provided in the Lead Securitization Servicing Agreement.
“Monthly Payment Date” shall mean the Payment Date (as defined in the Mortgage Loan Documents).
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.
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“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of June 26, 2015, between BT (MULTI) LLC, as Borrower, and UBSRES, as Lender, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 13.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage Loan Agreement, the Mortgage, the Notes and all other documents now or hereafter evidencing and securing the Mortgage Loan.
“Mortgage Loan Schedule” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“New Notes” shall have the meaning assigned to such term in Section 31.
“Non-Controlling Notes” means Note A-1 and Note A-3.
“Non-Controlling Note Holders” mean the Note A-1 Holder and the Note A-3 Holder; provided that at any time any such holder’s Note is included in a Securitization references to such “Non-Controlling Note Holder” herein shall mean the Controlling Class Representative or any other party assigned the rights to exercise the rights of the any “Non-Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement and as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided that if at any time 50% or more of Note A-2 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, Note A-2 shall not be entitled to exercise any rights of the Controlling Note Holder and the Note A-3 Holder shall be the Controlling Note Holder unless 50% or more of Note A-3 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower. If 50% or more of each of Note A-3 and Note A-2 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, then the Note A-1 Holder shall be the Controlling Note Holder. If 50% or more of each of Note A-1, Note A-2 and Note-3 is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, then no person shall be entitled to exercise the rights of the Controlling Note Holder. The Lead Securitization
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Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party in respect of any Note that is exercising the rights of any “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement and, (x) to the extent that the related Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent any Note is split into two or more New Notes pursuant to Section 31, for purposes of this Agreement, the applicable Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as a Non-Controlling Note Holder, as such Non-Controlling Note Holder under this Agreement.
“Non-Controlling Note Holder Representatives” shall have the meaning assigned to such term in Section 6(a).
“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit the Servicer on behalf of the Note Holders to make such payments free of any obligation or liability for withholding.
“Non-Lead Depositor” shall mean the “depositor” under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Master Servicer” shall mean the “master servicer” under any Non-Lead Securitization Servicing Agreement
“Non-Lead Operating Advisor” shall mean the “operating advisor”, “trust advisor” or other analogous term under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Securitization Notes” shall mean (a) during the period from and after the Note A-3 Securitization Date and prior to the Note A-2 Securitization Date, Note A-2 and Note A-3, and (b) on and after the Note A-2 Securitization Date, Note A-1 and Note A-3.
“Non-Lead Securitization Note Holder” shall mean the holder of any Non-Lead Securitization Note.
“Non-Lead Securitization Servicing Agreement” shall mean after the Note A-2 Securitization Date, the Note A-1 PSA and the Note A-3 PSA.
“Non-Lead Special Servicer” shall mean the “special servicer” under any Non-Lead Securitization Servicing Agreement.
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“Non-Lead Trustee” shall mean the “trustee” under any Non-Lead Securitization Servicing Agreement.
“Nonrecoverable Property Advance” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Note A-1” shall have the meaning assigned to such term in the recitals.
“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.
“Note A-1 Master Servicer” shall mean the master servicer under the Note A-1 PSA.
“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-1 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-1 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-1 PSA” shall mean Pooling and Servicing Agreement dated as of August 1, 2015, among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, Rialto Capital Advisors, LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wells Fargo Bank, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor, which relates to the CSAIL 2015-C3 Commercial Mortgage Trust.
“Note A-1 Securitization” shall mean the first sale by the Note A-1 Holder of all or a portion of Note A-1 to a depositor who will in turn include such portion of Note A-1 as part of the securitization of one or more mortgage loans.
“Note A-1 Securitization Date” shall mean the closing date of the Note A-1 Securitization.
“Note A-1 Special Servicer” shall mean the special servicer under the Note A-1 PSA.
“Note A-1 Trustee” shall mean the trustee under the Note A-1 PSA.
“Note A-1 Trust Fund” shall mean the trust formed pursuant to the Note A-1 PSA.
“Note A-2” shall have the meaning assigned to such term in the recitals.
“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.
“Note A-2 Master Servicer” shall mean the master servicer under the Note A-2 PSA.
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“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-2 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-2 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-2 PSA” shall mean the “pooling and servicing agreement” entered into in connection with the Note A-2 Securitization.
“Note A-2 Securitization” shall mean the first sale by the Note A-2 Holder of all or a portion of Note A-2 to a depositor who will in turn include such portion of Note A-2 as part of the securitization of one or more mortgage loans.
“Note A-2 Securitization Date” shall mean the closing date of the Note A-2 Securitization.
“Note A-2 Special Servicer” shall mean the special servicer under the Note A-2 PSA.
“Note A-2 Trustee” shall mean the trustee under the Note A-2 PSA.
“Note A-2 Trust Fund” shall mean the trust formed pursuant to the Note A-2 PSA.
“Note A-3” shall have the meaning assigned to such term in the recitals.
“Note A-3 Holder” shall mean the Initial Note A-3 Holder or any subsequent holder of Note A-3, as applicable.
“Note A-3 Master Servicer” shall mean the master servicer under the Note A-3 PSA.
“Note A-3 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-3 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-3 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-3 PSA” shall mean the “pooling and servicing agreement” entered into in connection with the Note A-3 Securitization.
“Note A-3 Securitization” shall mean the first sale by the Note A-3 Holder of all or a portion of Note A-3 to a depositor who will in turn include such portion of Note A-3 as part of the securitization of one or more mortgage loans.
“Note A-3 Securitization Date” shall mean the closing date of the Note A-3 Securitization.
“Note A-3 Special Servicer” shall mean the special servicer under the Note A-3 PSA.
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“Note A-3 Trustee” shall mean the trustee under the Note A-3 PSA.
“Note A-3 Trust Fund” shall mean the trust formed pursuant to the Note A-3 PSA.
“Note Holder Representative” shall mean a Controlling Note Holder Representative or a Non-Controlling Note Holder Representative, as applicable.
“Note Holders” shall mean collectively, the Note A-1 Holder, the Note A-2 Holder and the Note A-3 Holder.
“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).
“Note Register” shall have the meaning assigned to such term in Section 15.
“Notes” shall mean, collectively, Note A-1, Note A-2 and Note A-3.
“Operating Advisor” shall mean the operating advisor appointed as provided in the Lead Securitization Servicing Agreement.
“P&I Advance” shall mean an advance made by a party to any Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Note securitized pursuant to such Securitization Servicing Agreement.
“Percentage Interest” shall mean, (a) with respect to the Note A-1 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance and the Note A-3 Principal Balance, (b) with respect to the Note A-2 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance and the Note A-3 Principal Balance and (c) with respect to the Note A-3 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-3 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance and the Note A-3 Principal Balance.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Pledge” shall have the meaning assigned to such term in Section 14(c).
“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may
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be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.
“Property Advance” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other U.S. Person that is:
(a) an entity Controlled (as defined herein) by, under common Control with or that Controls either of the Initial Note Holders, or
(b) the trustee on behalf of the trust certificates issued pursuant to a master trust agreement involving a CDO comprised of, or other securitization vehicle involving, assets deposited or transferred by a Note Holder and/or one or more Affiliates (whether with assets from others or not), provided that the securities issued in connection with such CDO or other securitization vehicle are rated by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with the Lead Securitization, or
(c) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended, or
(iii) a Qualified Trustee in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise acceptable to the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer
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is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Initial Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (c)(i), (ii), (iv)(B) or (v) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or
(d) any entity Controlled by any of the entities described in clause (b) above or approved by the Rating Agencies hereunder as a Qualified Institutional Lender for purposes of this Agreement, or as to which the Rating Agencies have stated they would not review such entity in connection with the subject transfer.
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior
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unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies.
“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably designated by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, however, that, at any time during which the Mortgage Loan is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged from time to time to rate the securities issued in connection with the Securitizations of the Notes.
“Rating Agency Confirmation” shall mean prior to a Securitization with respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any class of certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter and after a Securitization, the meaning given thereto or any analogous term in the Lead Securitization Servicing Agreement and/or the applicable Non-Lead Securitization Servicing Agreement, as applicable, including any deemed Rating Agency Confirmation.
“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).
“Regulation AB” shall mean Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100 - 229.1125, as such rules may be amended from time to time, but only to the extent compliance is required as of the applicable date of determination, and subject to such clarification and interpretation as have been provided by the SEC or by the staff of the SEC, or as may be provided by the SEC or its staff from time to time.
“REMIC” shall have the meaning assigned to such term in Section 5(d).
“Remittance Date” shall have the meaning given to such term or one or more analogous terms in the Lead Securitization Servicing Agreement or either Non-Lead Securitization Servicing Agreement, as applicable (and, for the avoidance of doubt, shall refer to the monthly date on which the applicable servicer is required to remit funds received to the applicable trustee, certificate administrator or paying agent, as the case may be); provided, however, that no remittance shall be required to be made earlier than one (1) Business Day after the Master Servicer’s receipt of the related Monthly Payment with respect to the Mortgage Loan.
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a
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commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, either (a) the applicable replacement has a special servicer ranking of at least “MOR CS3” by Morningstar (if ranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a special servicer on a deal or transaction-level basis for all or a significant portion of the related mortgage loans in other CMBS transactions rated by any of S&P, Moody’s, Morningstar, Fitch, DBRS or KBRA and the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies that Morningstar has not, with respect to any such other CMBS transaction, qualified, downgraded or withdrawn its rating or ratings on one or more classes of such CMBS transaction citing servicing concerns of the applicable replacement as the sole or material factor in such rating action, (v) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination, and (vi) in the case of DBRS, such special servicer is currently acting as special servicer for one or more loans included in a commercial mortgage loan securitization that is rated by DBRS, and DBRS has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors in interest.
“Scheduled Interest Payment” shall mean the scheduled payment of interest due on the Mortgage Loan on a Monthly Payment Date.
“Scheduled Principal Payment” shall mean the scheduled payment of principal due on the Mortgage Loan on a Monthly Payment Date.
“Securitization” shall mean the Note A-1 Securitization, the Note A-2 Securitization or the Note A-3 Securitization, as applicable.
“Securitization Date” shall mean the effective date on which the Securitization of the first Note or portion thereof is consummated.
“Securitization Servicing Agreement” shall mean the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement.
“Securitization Trust” shall mean a trust formed pursuant to a Securitization.
“Securitization Vehicle” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”
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“Serviced Whole Loan Custodial Account” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Advances” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.
“Servicing Fee” shall have the meaning given thereto in the Lead Securitization Servicing Agreement (or other analogous term under the Lead Securitization Servicing Agreement).
“Servicing Fee Rate” shall have the meaning given thereto in the Lead Securitization Servicing Agreement (or other analogous term under the Lead Securitization Servicing Agreement).
“Servicing Standard” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.
“Special Servicer” shall mean the special servicer appointed as provided in the Lead Securitization Servicing Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Transfer” shall have the meaning assigned to such term in Section 14.
“Trustee” shall mean the trustee appointed as provided in the Lead Securitization Servicing Agreement.
“UBSRES” shall have the meaning assigned to such term in the preamble to this Agreement.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a
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trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which is eligible to elect to be treated as a U.S. Person).
Section 2. Servicing of the Mortgage Loan.
(a) Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced as follows: (i) from and after the Securitization Date, but prior to the Note A-2 Securitization Date, by the Note A-3 Master Servicer and the Note A-3 Special Servicer pursuant to the terms of this Agreement and the Note A-3 PSA; and (ii) from and after the Note A-2 Securitization Date, by the Note A-2 Master Servicer and the Note A-2 Special Servicer pursuant to the terms of this Agreement and the Note A-2 PSA; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Lead Securitization Servicing Agreement, including any provisions governing the determination of non-recoverability. Each Note Holder acknowledges that any other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 26, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, Operating Advisor, Certificate Administrator and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the Special Servicer by the Controlling Note Holder and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). In no event shall the Lead Securitization Servicing Agreement require the Servicer to enforce the rights of any Note Holder or limit the Servicer in enforcing the rights of one Note Holder against any other Note Holder; however, this statement shall not be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, shall provide information to each Servicer under each Non-Lead Securitization Servicing Agreement to enable each such Servicer to perform its servicing duties under the applicable Non-Lead Securitization Servicing Agreement and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
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At any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each Rating Agency; provided, further, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement as if such agreement were still in full force and effect with respect to the Mortgage Loan by the Servicer in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a qualified servicer meeting the requirements of the Lead Securitization Servicing Agreement.
(b) The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) shall make the following advances subject to the terms of the Lead Securitization Servicing Agreement and this Agreement: (i) Property Advances on the Mortgage Loan and (ii) P&I Advances on the Lead Securitization Note. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Property Advance, first from funds on deposit in the Collection Account (or equivalent account) and/or the related Serviced Whole Loan Custodial Account (or equivalent account) for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Property Advances, if such funds on deposit in the Serviced Whole Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to reimbursement for advance interest on a Property Advance or a Nonrecoverable Property Advance, in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Nonrecoverable Property Advance or any advance interest on a Property Advance or a Nonrecoverable Property Advance, each Non-Lead Securitization Note Holder (including any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Property Advance or advance interest.
In addition, each Non-Lead Securitization Note Holder (including, but not limited to, any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Depositor, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement and any costs, fees and expenses related to obtaining
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any Rating Agency Confirmation, to the extent amounts on deposit in the Serviced Whole Loan Custodial Account are insufficient for reimbursement of such amounts and to the extent that funds from general collections in the Lead Securitization are applied towards the Lead Securitization Note Holder’s pro rata share of the insufficiency. Each Non-Lead Securitization Note Holder shall indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Depositor under the Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property (or, with respect to the Operating Advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Serviced Whole Loan Custodial Account are insufficient for reimbursement of such amounts, each Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency, provided that such Non-Lead Securitization Noteholder’s duty to pay Indemnified Items to the Operating Advisor shall be subject to any limitations and conditions (including limitations and conditions with respect to the timing of such payments and the sources of funds for such payments) as may be set forth from time to time in such Non-Lead Securitization Servicing Agreement.
Any Non-Lead Master Servicer may be required to make P&I Advances on the respective Non-Lead Securitization Note, from time to time, subject to the terms of the related Non-Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. Any Non-Lead Master Servicer, any Non-Lead Special Servicer and any Non-Lead Trustee under any Non-Lead Securitization Servicing Agreement, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the related Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and any Non-Lead Master Servicer or Non-Lead Trustee, as applicable, shall be required to notify the other of the amount of its P&I Advance within two business days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to any Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Property Advance would be non-recoverable or an outstanding Property Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead
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Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or such Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by a Non-Lead Master Servicer, a Non-Lead Special Servicer or a Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the related Non-Lead Master Servicer and the related Non-Lead Trustee, as the case may be, of such other Securitization within two business days of making such determination. Each of the Master Servicer, the Trustee, any Non-Lead Master Servicer and any Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance that becomes non-recoverable first from the Serviced Whole Loan Custodial Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of any Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement.
(c) The Initial Note A-3 Holder shall cause the Note A-3 Pooling and Servicing Agreement to contain provisions to the effect that when the Note A-3 Pooling and Servicing Agreement becomes a Non-Lead Securitization Servicing Agreement, and the Initial Note A-1 Holder shall cause the Note A-1 Pooling and Servicing Agreement to contain provisions to the effect that:
(i) each Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Nonrecoverable Property Advances (and advance interest thereon) and any additional trust fund expenses, but only to the extent that they relate to servicing and administration of the Notes, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Property Advances or additional trust fund expenses, (i) the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Lead Securitization Trust, as applicable, out of general funds in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Property Advances (together with advance interest thereon) and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property) and (ii) if the Lead Securitization Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general collections, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so, and the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization Trust out of general funds in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Property Advances (together with advance interest thereon)
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and/or additional trust fund expenses (including compensation due to the Master Servicer and the Special Servicer to the extent related to the servicing and administration of the Mortgage Loan and the Mortgaged Property);
(ii) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) by the Securitization Trust holding such Non-Lead Securitization Note, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Serviced Whole Loan Custodial Account are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general funds in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement; provided that any Non-Lead Securitization Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Operating Advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);
(iii) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor notice of any subsequent change in the identity of any Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Securitization Note under this Agreement (together with the relevant contact information); and
(iv) Any matter affecting the servicing and administration of the Mortgage Loan that requires delivery of a Rating Agency Confirmation pursuant to the Lead Securitization Servicing Agreement shall also require delivery of a Rating Agency Confirmation under each Non-Lead Securitization Servicing Agreement; and
(v) the Master Servicer, the Special Servicer, the Trustee and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(d) Following the Securitization of one Note but prior to the Securitization of the other Note (including any New Note), all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special
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Servicer acting on its behalf) shall be delivered to the master servicer and the special servicer with respect to such Securitization (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement or with respect to a Note that has not been securitized, the related Note Holder) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.
(e) In addition to the foregoing, the Note A-2 PSA shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of the Note A-3 Trust Fund, (ii) required by law or changes in any law, rule or regulation or (iii) requested by the Rating Agencies rating the Note A-2 Securitization. In addition, the Note A-2 PSA shall have such additional provisions as are set forth in Schedule I hereto. The Note A-2 Holder shall have the right to designate the Note A-2 Master Servicer and Note A-2 Special Servicer as long as each such party satisfies the conditions for such Servicer set forth in the Note A-3 PSA. Prior to the Note A-2 Securitization Date, the Note A-2 Holder shall also have the right to designate the Note A-3 Special Servicer for the Mortgage Loan. Without limiting the generality of any provision set forth above, for purposes of the Mortgage Loan, the Note A-2 PSA shall contain (a) provisions requiring the Note A-2 Master Servicer and the Note A-2 Special Servicer to maintain, or subjecting them to possible termination for not maintaining, compliance with customary servicer rating criteria (but the rating agencies need not be the same) and (b) provisions similar, in all material respects, to those set forth in Note A-3 PSA with respect to (i) periodic reporting and periodic delivery of service provider compliance documents under Regulation AB (and, in any event, the Note A-2 PSA shall require such reporting and delivery so long as the Note A-1 Securitization and Note A-3 Securitization are required to file periodic reports under the Securities Exchange Act of 1934, as amended), (ii) servicing transfer events that would result in the transfer of the Mortgage Loan to special servicing status, (iii) the authority of the servicers in the Note A-3 Securitization to grant or agree or consent to material modifications, waivers and amendments to the Mortgage Loan, or to approve material assignments and assumptions or material additional indebtedness in connection with the Mortgage Loan, (iv) the potential termination of the master servicer and special servicer following a Servicer Termination Event, (v) requirements to obtain an appraisal or appraisal update following a transfer of the Mortgage Loan to special servicing status and periodic updates thereof, (vi) duties of the special servicer in respect of foreclosure and the management of REO property, (vii) subject to various adjustments and caps provided in the Note A-2 PSA (which shall be similar in all material respects to those set forth in the Note A-3 PSA), special servicing, workout and liquidation fees (and, in any event, the fees at which such compensation accrue or are determined shall not exceed 0.25%, 1.00% and 1.00%, respectively), (viii) control, consultation and other rights of the directing certificateholder and operating advisor and any other material servicing and administrative provisions and (ix) indemnification of the Depositor under the Note A-3 PSA, the Note A-3 Master Servicer, the Note A-3 Special Servicer, the certificate administrator under the Note A-3 PSA, the Note A-3 Trustee and the operating advisor under the Note A-3 PSA (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Note A-3 PSA in respect of other mortgage loans) against any claims, losses, penalties, fines, forfeitures, legal fees
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and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the operating advisor under the Note A-3 PSA, incurred in connection with the provision of services for the Mortgage Loan) to the same extent that the Note A-3 PSA indemnifies the Indemnified Parties against the Indemnified Items; provided that (A) this statement shall not be construed to prohibit differences in timing, control or consultation triggers or threshholds, terminology, allocation of ministerial duties between multiple servicers or other servicer providers or certificateholder or investor voting or consent threshholds, or to prohibit or restrict additional approval, consent, consultation, notice or rating agency confirmation requirements; and (B) if there is any conflict between this sentence and any other provision of this Agreement, such other provision of this Agreement shall control.
(f) The Lead Securitization Servicing Agreement shall provide that compensating interest payments as defined therein with respect to Note A-1, Note A-2 and Note A-3 will be allocated by the Master Servicer between Note A-1, Note A-2 and Note A-3, pro rata, in accordance with their respective principal amounts. The Master Servicer shall remit any compensating interest payment in respect of each Non-Lead Securitization Note to each such Non-Lead Securitization Note Holder.
Section 3. Priority of Payments. Each Note shall be of equal priority, and no portion of any Note shall have priority or preference over any portion of any other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent, in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Property Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement and (y) all amounts that are then due, payable or reimbursable except for (i) any reimbursements of P&I Advances (and interest thereon) made with respect to Note A-1, Note A-2 or Note A-3 which may only be reimbursed out of payments and collections allocable to Note A-1, Note A-2 or Note A-3, as applicable and (ii) any Servicing Fees due to the Master Servicer in excess of each Non-Lead Securitization Note’s pro rata share of that portion of such Servicing Fees calculated at the Servicing Fee Rate applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement) to any Servicer, with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement (including without limitation, any additional trust fund expenses relating to the Mortgage Loan (but subject to second paragraph of Section 5(d) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Workout Fees, Default Interest (to the extent provided in the immediately following paragraph) and any other additional compensation payable pursuant to the Lead Securitization Servicing Agreement), shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis.
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For clarification purposes, Default Interest (as defined in the Lead Securitization Servicing Agreement) paid shall be allocated to the Notes on a Pro Rata and Pari Passu Basis and applied first, to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Property Advances and reimbursement of any Property Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, any Non-Lead Master Servicer or any Non-Lead Trustee for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement, as applicable), third, to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay additional trust fund expenses (other than Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, (i) in the case of the remaining amount of Default Interest allocable to the Lead Securitization Note, be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement and (ii) in the case of the remaining amount of Default Interest allocable to any Non-Lead Securitization Note, be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement.
Section 4. Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement, and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including but not limited to Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and each Non-Lead Securitization Note Holder shall have no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, the Non-
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Lead Securitization Note Holders shall have no right to, and the Note A-1 Holder and the Note A-2 Holder hereby presently and irrevocably assign and convey to the Note A-3 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that each such Note Holder has prior to the Note A-2 Securitization Date to, and the Note A-1 Holder and the Note A-3 Holder hereby presently and irrevocably assign and convey to the Note A-2 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder from and after the Note A-2 Securitization Date) the rights, if any, that each such Note Holder has from and after the Note A-2 Securitization Date to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to the Non-Lead Securitization Note Holders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).
Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to sell the Notes together as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell the Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted
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to sell the Mortgage Loan without the written consent of the Non-Lead Securitization Note Holders (unless, with respect to each Non-Lead Securitization Noteholder, 50% or more of the related Note (or the class of securities issued in the applicable Non-Lead Securitization designated as the “controlling class” or such other class(es)) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” is held by the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to such Non-Lead Securitization Note Holder: (a) at least 15 Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least 10 days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the related Controlling Class Representative (or other similar term)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that the majority holder of each Non-Lead Securitization Note or the Controlling Class Representative may waive any of the delivery or timing requirements set forth in this sentence. Subject to the foregoing, each of the Controlling Note Holder, the Controlling Note Holder Representative, each Non-Controlling Note Holder and each Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower.
Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of its Note. Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) further agrees that, upon the request of the Lead Securitization Note Holder, such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver its original Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.
The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of any other Note Holder to execute and deliver instruments or deliver the related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit
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of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization.
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein.
(c) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Controlling Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or Special Servicer acting on its behalf) of
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written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Controlling Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with the Non-Controlling Note Holders (or their Non-Controlling Note Holder Representatives), whether or not the Non-Controlling Note Holders (or their Non-Controlling Note Holder Representatives) have responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).
In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to attend annual meetings (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.
(d) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan.
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Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, in the event that one of the Notes is included in a REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holder be reduced to offset or make-up any such payment or deficit.
Section 6. Rights of the Controlling Note Holder.
(a) The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative in accordance with the terms of the Lead Securitization Servicing Agreement. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. Any Servicer acting on behalf of the Lead Securitization Note Holder shall not be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified the Servicer or Trustee of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides any Servicer or Trustee with written confirmation of its acceptance of such appointment, an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and facsimile numbers). The Controlling Note Holder shall promptly deliver such information to any Servicer. None of the Servicers, Operating Advisor and Trustee shall be required to recognize any person as a Controlling Note Holder Representative until they receive such information from the Controlling Note Holder. The Controlling Note Holder agrees to inform each such Servicer or Trustee of the then-current Controlling Note Holder Representative.
Neither the Controlling Note Holder Representative nor the Controlling Note Holder will have any liability to any other Note Holder or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful
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misconduct, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over the other Note Holder, and that the Controlling Note Holder Representative may have special relationships and interests that conflict with the interests of a Note Holder and, absent willful misconduct, bad faith or gross negligence on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
Each Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to Controlling Note Holder and the Controlling Note Holder Representative set forth in the first paragraph of this Section 6(a) (except those contained in the last sentence thereof) and the second paragraph of this Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.
(b) The Controlling Note Holder shall be entitled to exercise the rights and powers granted to the Controlling Note hereunder and the rights and powers granted to the “Controlling Class Representative” or similar party under, and as defined in, the Lead Securitization Servicing Agreement with respect to the Mortgage Loan. In addition, the Controlling Note Holder shall be entitled to advise (1) the Special Servicer with respect to all matters related to a Specially Serviced Loan and (2) the Special Servicer with respect to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and, except as set forth below (i) the Master Servicer shall not be permitted to implement any Major Decision unless it has obtained the prior written consent of the Special Servicer and (ii) the Special Servicer shall not be permitted to consent to the Master Servicer’s implementing any Major Decision nor will the Special Servicer itself be permitted to implement any Major Decision as to which the Controlling Note Holder has objected in writing within ten (10) Business Days (or 30 days with respect to an Acceptable Insurance Default) after receipt of the written recommendation and analysis and such additional information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment with respect to such Major Decision. The Controlling Note Holder may also direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Note Holder may deem advisable.
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If the Controlling Note Holder fails to notify the Special Servicer of its approval or disapproval of any proposed Major Decision within ten (10) Business Days (or 30 days with respect to an Acceptable Insurance Default) after delivery to the Controlling Note Holder by the applicable Servicer of written notice of a proposed Major Decision (which notice shall contain a legend, in conspicuous boldface type, substantially similar to the following: “THIS IS A REQUEST FOR ACTION APPROVAL. IF THE CONTROLLING NOTE HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED ACTION WITHIN TEN (10) BUSINESS DAYS (OR IN CONNECTION WITH AN ACCEPTABLE INSURANCE DEFAULT TWENTY (20) DAYS), SUCH ACTION MAY BE DEEMED APPROVED”) together with any information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment, then upon the expiration of such ten (10) Business Day (or 30 days with respect to an Acceptable Insurance Default) period, such Major Decision shall be deemed to have been approved by the Controlling Note Holder.
In the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by the Lead Securitization Servicing Agreement to take such action), as applicable, determines that immediate action, with respect to the foregoing matters, or any other matter requiring consent of the Controlling Note Holder is necessary to protect the interests of the Note Holders (as a collective whole) and the Special Servicer has made a reasonable effort to contact the Controlling Note Holder, the Master Servicer or the Special Servicer, as the case may be, may take any such action without waiting for the Controlling Note Holder’s response.
No objection contemplated by the preceding paragraphs may require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of the Mortgage Loan Documents, applicable law, the Lead Securitization Servicing Agreement, this Agreement, the REMIC provisions of the Code or the Master Servicer or Special Servicer’s obligation to act in accordance with the Servicing Standard or materially expand the scope of responsibilities of any of the Master Servicer or Special Servicer, as applicable.
The Controlling Note Holder shall have no liability to the other Note Holders or any other party for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over the other Note Holder, and that the Controlling Note Holder may have special relationships and interests that conflict with the interests of another Note Holder and, absent willful misconduct, bad faith or gross negligence on the part of the Controlling Note Holder agree to take no action against the Controlling Note Holder or any of its officers, directors, employees, principals or agents as a result of such special relationships or interests, and that the Controlling Note Holder shall not be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
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Section 7. Appointment of Special Servicer. The Controlling Note Holder (or its Controlling Note Holder Representative) shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to each other Note Holder, the Master Servicer, the then existing Special Servicer and other parties to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Confirmation, if required by the terms of the Lead Securitization Servicing Agreement), if any. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects any Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges and agrees that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at any Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Such Non-Controlling Note Holder shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Lead Securitization’s Collection Account.
Section 8. Payment Procedure.
(a) The Lead Securitization Note Holder, in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, will deposit or cause to be deposited all payments allocable to the Notes to the Collection Account and/or related Serviced Whole Loan Custodial Account pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer acting on its behalf) shall deposit such amounts to the applicable account within two (2) Business Days after receipt of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower. The Lead Securitization Servicing Agreement shall provide that all amounts on deposit in the Serviced Whole Loan Custodial Account on a Remittance Date
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allocable under this Agreement to a Non-Lead Securitization Note Holder shall be deposited or credited on the Business Day preceding the Remittance Date for such Non-Lead Securitization by wire transfer of immediately available funds to an account specified by such Non-Lead Securitization Note Holder.
(b) If the Lead Securitization Note Holder determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to any Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Note Holder shall not be required to distribute any portion thereof to the Non-Lead Securitization Note Holders and each Non-Lead Securitization Note Holder will promptly on demand by the Lead Securitization Note Holder repay to the Lead Securitization Note Holder any portion thereof that the Lead Securitization Note Holder shall have theretofore distributed to such Non-Lead Securitization Note Holder, together with interest thereon at such rate, if any, as the Lead Securitization Note Holder shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Lead Securitization Note Holder makes any payment to any Non-Lead Securitization Note Holder before the Lead Securitization Note Holder has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s request, promptly return that payment to the Lead Securitization Note Holder.
(d) Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from any Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. Such Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Note Holders. Each Note Holder shall have no liability to the other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder.
The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a
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manner that may be adverse to the interests of the Non-Lead Securitization Note Holders and that the Lead Securitization Note Holder (including any Servicer and the Trustee) shall have no liability whatsoever to the Non-Lead Securitization Note Holders in connection with the Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided that the Servicer must act in accordance with the Servicing Standard.
Section 10. Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not any Non-Lead Securitization Note Holder, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Non-Lead Securitization Note Holders in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note Holders hereby agree that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.
Section 11. Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and
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authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
Section 12. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. The Lead Securitization Note Holder shall have no obligation whatsoever to offer to the Non-Lead Securitization Note Holders the opportunity to purchase a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates and if the Lead Securitization Note Holder chooses to offer to any Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by the Lead Securitization Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as such Lead Securitization Note Holder chooses, in its sole and absolute discretion. The Non-Lead Securitization Note Holders shall have no obligation whatsoever to purchase from the Lead Securitization Note Holder a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates.
Section 13. Other Business Activities of the Note Holders. Each Note Holder acknowledges that the other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 14. Sale of the Notes.
(a) Each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, participate, hypothecate, contribute, encumber or otherwise dispose (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 14(d)) of a Note (a “Transfer”) except to a Qualified Institutional Lender. Promptly after the Transfer, the non-transferring Note Holder shall be provided with (x) a representation from a transferee or the applicable Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer to a Securitization (and the related pooling and servicing or similar agreement requires the parties thereto to comply with this Agreement) or in accordance with the immediately following sentence) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first obtain (x) prior to a
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Securitization, the consent of the non-transferring Note Holder or (2) after a Securitization of such non-transferring Note Holder’s Note, Rating Agency Confirmation. Notwithstanding the foregoing, without the non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if such non-transferring Note Holder’s Note is held in a Securitization Trust, without Rating Agency Confirmation, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Note Holder agrees that it will pay the expenses of the non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer and the Trustee) and all expenses relating to the confirmation from the Rating Agencies in connection with any such Transfer. Notwithstanding the foregoing, each Note Holder shall have the right, without the need to obtain the consent of the other Note Holder, the Rating Agencies or any other Person, to Transfer 49% or less (in the aggregate) of its Note or any beneficial interest in its Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of Note A-1 together with Note A-2 and Note A-3, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.
For the purposes of this Agreement, if any Rating Agency shall, in writing, waive, decline or refuse to review or otherwise engage any request for a confirmation hereunder from such Rating Agency that a proposed action will not result in a qualification, downgrade or withdrawal of its then current rating of the securities issued pursuant to the related Securitization, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that such confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for such confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for such Rating Agency confirmation hereunder and the condition for such Rating Agency confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
(b) In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.
(c) Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate
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thereof) which has extended a credit facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to the other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), the other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to the other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Note Holder and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases the other Note Holder and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any
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Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(d) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Note Holder then such Note Holder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) The loan (the “Conduit Inventory Loan”) made by the Conduit to such Note Holder to finance the acquisition and holding of its Note requires a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) The Conduit Credit Enhancer is a Qualified Institutional Lender;
(iii) Such Note Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) The Conduit Credit Enhancer and the Conduit agree that, if such Note Holder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Note Holder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Note Holder’s Note to the Conduit Credit Enhancer; and
(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
Section 15. Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes are as set forth on Exhibit B and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note Holder is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of the other Note Holder as set forth in the Note Register. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.
In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing
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agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and the other Note Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.
Section 16. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 17. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
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(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 18. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first receiving a Rating Agency Confirmation; provided that no such confirmation from the Rating Agencies shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement or, (ii) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement or (iii) if and to the extent that it would be deemed given or not required pursuant to the definition of Rating Agency Confirmation in the Lead Securitization Servicing Agreement and/or the applicable Non-Lead Securitization Servicing Agreement, as applicable.
Section 19. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, any Non-Lead Master Servicer, any Non-Lead Special Servicer, or any Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder.
Section 20. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 21. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 22. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this
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Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 24. Withholding Taxes. (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to any Non-Lead Securitization Note Holder with respect to the Mortgage Loan as a result of such Non-Lead Securitization Note Holder constituting a Non-Exempt Person, the Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to such Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish the applicable Non-Lead Securitization Note Holder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.
(b) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made to such Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.
(c) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) represents (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Note Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to
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the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if a Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN or W-8BEN-E, as applicable, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any payment hereunder with respect to any Non-Lead Securitization Note or otherwise until the holder of such Note shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.
Section 25. Custody of Mortgage Loan Documents. Prior to the Note A-3 Securitization Date, the originals of all of the Mortgage Loan Documents will be held by the Initial Agent on behalf of the registered holders of the Notes. On and after the Note A-3 Securitization Date but prior to the Note A-2 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-1 and Note A-2 and their respective allonges) shall be held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-3 PSA, on behalf of the registered holders of the Notes. On and after the Note A-2 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-1 and Note A-3) will be transferred to and held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-2 PSA, on behalf of the registered holders of the Notes.
Section 26. Cooperation in Securitization.
(a) Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization of the Lead Securitization Note and subject to the terms of the preceding sentence, at the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall use reasonable efforts, at Lead Securitization Note Holder’s expense, to satisfy, and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which the Lead Securitization Note Holder customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect the Securitization of the Lead Securitization Note; provided, however, that either in connection with the Lead Securitization or otherwise at any time prior to the Lead Securitization, no Non-Lead Securitization Note Holder shall be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Lead Securitization Note Holder or (ii) materially increase such Non-Lead Securitization
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Note Holder’s obligations or materially decrease such Non-Lead Securitization Note Holder’s rights, remedies or protections. In connection with the Lead Securitization, each Non-Lead Securitization Note Holder agrees to provide for inclusion in any disclosure document relating to the Lead Securitization such information concerning such Non-Lead Securitization Note Holder and such Non-Lead Securitization Note as the Lead Securitization Note Holder reasonably determines to be necessary or appropriate, and each Non-Lead Securitization Note Holder covenants and agrees that it shall, at the Lead Securitization Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and Lead Securitization Note Holder in connection with the Lead Securitization (including, without limitation, reasonably cooperating with the Lead Securitization Noteholder (without any obligation to make additional representations and warranties) to enable the Lead Securitization Noteholder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and the Lead Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Non-Lead Securitization Note Holder and such Non-Lead Securitization Note in any Securitization document. Each Note Holder acknowledges that the information provided by it to the Lead Securitization Note Holder may be incorporated into the offering documents for the Lead Securitization. The Lead Securitization Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, any Note Holder. The Lead Securitization Note Holder will reasonably cooperate with each Non-Lead Securitization Note Holder, at such Non-Lead Securitization Note Holder’s expense, by providing all information reasonably requested that is in the Lead Securitization Note Holder’s possession in connection with such Non-Lead Securitization Note Holder’s preparation of disclosure materials in connection with a Securitization.
Upon request, the Lead Securitization Note Holder shall deliver to the Non-Lead Securitization Note Holders drafts of the preliminary and final Lead Securitization offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the Lead Securitization Servicing Agreement and provide reasonable opportunity to review and comment on such documents.
Section 27. Notices.
(a) All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
(b) The Note A-2 Holder shall give each of the parties to each other Securitization (that will not also be a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by e-mail) not less than five (5) Business Days’ prior to
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the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA.
Section 28. Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.
Section 29. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Note Holder pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 15;
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder; and
(g) The Agent represents and warrants that it is a Qualified Institutional Lender.
Section 30. Resignation of Agent.
(a) The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. UBSRES, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of the Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of UBSRES
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without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.
Section 31. Resizing. Notwithstanding any other provision of this Agreement, for so long as UBSRES or an affiliate thereof (a “UBS Entity”) is the owner of any Non-Lead Securitization Note (the “Owned Note”), such UBS Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of the Owned Note to such New Notes; or severing the Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of the Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of the Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, (iv) the UBS Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes does not violate the Servicing Standard. To the extent that the Owned Note is Note A-2, the UBS Entity shall be entitled to designate one of the New Notes to be treated as Note A-2 for purposes of the determining the Controlling Note Holder, Lead Securitization, Lead Securitization Note, Note A-2 PSA, Note A-2 Securitization and Note A-2 Securitization Date hereunder. If the Lead Securitization Note Holder so requests, the UBS Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of the other Note. In connection with the foregoing (provided the conditions set forth in (i) through (v) above are satisfied, with respect to (i) through (iv), as certified by the UBS Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal. If more than one New Note is created hereunder, for purposes of exercising the rights of the Non-Controlling Note Holder hereunder, the “Non-Controlling Note Holder” of such New Notes shall be as provided in the definition of such term in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Initial Note Holders have caused this Agreement to be duly executed as of the day and year first above written.
UBS REAL ESTATE SECURITIES INC., a | ||
Delaware corporation, as Initial Note A-1 Holder | ||
By: | /s/ David Schell | |
Name: David Schell | ||
Title: Executive Director | ||
By: | /s/ Siho Ham | |
Name: Siho Ham | ||
Title: Director | ||
UBS REAL ESTATE SECURITIES INC., a | ||
Delaware corporation, as Initial Note A-2 Holder | ||
By: | /s/ David Schell | |
Name: | ||
Title: | ||
By: | /s/ Siho Ham | |
Name: Siho Ham | ||
Title: Director |
(Co-Lender Agreement – WPC Department Store Portfolio)
UBS REAL ESTATE SECURITIES INC., a | ||
Delaware corporation, as Initial Note A-3 Holder | ||
By: | /s/ Siho Ham | |
Name: Siho Ham | ||
Title: Director | ||
By: | /s/ David Schell | |
Name: David Schell | ||
Title: Executive Director |
(Co-Lender Agreement – WPC Department Store Portfolio)
EXHIBIT
A
MORTGAGE LOAN SCHEDULE
Description of Mortgage Loan
Mortgage Loan Borrower: | BT (MULTI) LLC |
Date of Mortgage Loan: | June 26, 2015 |
Date of Notes: | June 26, 2015 |
Original Principal Amount of Mortgage Loan: | $57,170,000 |
Principal Amount of Mortgage Loan as of the date hereof: | $57,170,000 |
Initial Note A-1 Principal Balance: | $15,000,000 |
Initial Note A-2 Principal Balance: | $25,000,000 |
Initial Note A-3 Principal Balance: | $17,170,000 |
Location of Mortgaged Property: | Various |
Initial Maturity Date: | July 6, 2025 |
A-1 |
EXHIBIT B
1. Initial Note A-1 Holder:
UBS Real
Estate Securities Inc.
Notice Address:
UBS Real Estate Securities Inc.
1285 Avenue of the Americas, 8th Floor
New York, New York 10119
Attention: Transaction Management – Henry Chung
Telecopy number: (212) 821-2943
E-mail: henry.chung@ubs.com
with copies to:
UBS Securities
LLC
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
E-mail: chad.eisenberger@ubs.com, and
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, New York 10281
Attention:
Frank Polverino
Telecopy number: (212) 504-6666
E-mail:
frank.polverino@cwt.com
B-1 |
2. Initial Note A-2 Holder:
UBS Real
Estate Securities Inc.
Notice Address:
UBS Real Estate Securities Inc.
1285 Avenue of the Americas, 8th Floor
New York, New York 10119
Attention: Transaction Management – Henry Chung
Telecopy number: (212) 821-2943
E-mail: henry.chung@ubs.com
with copies to:
UBS Securities
LLC
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
E-mail: chad.eisenberger@ubs.com, and
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, New York 10281
Attention:
Frank Polverino
Telecopy number: (212) 504-6666
E-mail:
frank.polverino@cwt.com
B-2 |
3. Initial Note A-3 Holder:
(Prior to Securitization of Note A-3):
UBS Real
Estate Securities Inc.
Notice Address:
UBS Real Estate Securities Inc.
1285 Avenue of the Americas, 8th Floor
New York, New York 10119
Attention: Transaction Management – Henry Chung
Telecopy number: (212) 821-2943
E-mail: henry.chung@ubs.com
with copies to:
UBS Securities
LLC
153 West 51st Street
New York, New York 10019
Attention: Chad Eisenberger, Executive Director & Counsel
E-mail: chad.eisenberger@ubs.com, and
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, New York 10281
Attention:
Frank Polverino
Telecopy number: (212) 504-6666
E-mail: frank.polverino@cwt.com
(Following Securitization of Note A-3):
(i) | Depositor: |
Credit
Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue
New York, New York 10010
Attention: Chuck Lee
B-3 |
Telecopy
number: (212) 322-0965
E-mail: chuck.lee@credit-suisse.com
with
a copy to:
Credit Suisse, Commercial Real Estate & CMBS
One Madison Ave, 9th Floor
New York, New York 10010
Attention: Sarah Nelson
Telecopy number: (212) 743-2826
E-mail: sarah.nelson@credit-suisse.com
(ii) | Master Servicer: |
Midland
Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Building 82, Suite 300
Overland Park, Kansas 66210
Attention: Executive Vice President—Division Head
Telecopy number: (913) 253-9001
with a copy to:
Stinson Leonard Street LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
Attention: Kenda K. Tomes
Telecopy number: (816) 412-9338
(iii) | Special Servicer: |
Rialto
Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Liat Heller
Telecopy number: (305) 229-6425
E-mail: liat.heller@rialtocapital.com
with copies to:
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention:
Jeff Krasnoff
Telecopy Number: (305) 229-6425
E-mail: jeff.krasnoff@rialtocapital.com,
B-4 |
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Niral Shah
Telecopy Number: (305) 229-6425
E-mail: niral.shah@rialtocapital.com, and
Rialto Capital Advisors, LLC
790 NW 107th Avenue, 4th Floor
Miami, Florida 33172
Attention: Adam Singer
Telecopy Number: (305) 229-6425
E-mail: adam.singer@rialtocapital.com
(iv) | Trustee and Certificate Administrator: |
Wells
Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CSAIL 2015-C3
Telecopy Number: (410) 715-2380
E-Mail: cts.cmbs.bond.admin@wellsfargo.com, and to trustadministrationgroup@wellsfargo.com,
except as otherwise set forth herein
(v) | Operating Advisor: |
Pentalpha
Surveillance LLC
375 N. French Road, Suite 100
Amherst, New York 14228
Attention: Don Simon, Chief Operating Officer
With a copy sent via e-mail to: don.simon@pentalphasurveillance.com
and notices@pentalphasurveillance.com
with a copy
to: Bass Berry & Sims PLC 150 Third Avenue South |
Suite 2800 Nashville, Tennessee 37201 Attention: Jay Knight |
E-mail: jknight@bassberry.com
B-5 |
EXHIBIT
C
PERMITTED FUND MANAGERS
1. | DLJ Real Estate Capital Partners |
2. | iStar Financial Inc. |
3. | Capital Trust |
4. | Lend-Lease Real Estate Investments |
5. | Archon Capital, L.P. |
6. | Whitehall Street Real Estate Fund, L.P. |
7. | The Blackstone Group International Ltd. |
8. | Apollo Real Estate Advisors |
9. | Colony Capital, Inc. |
10. | Praedium Group |
11. | J.E. Robert Companies |
12. | Fortress Investment Group LLC |
13. | Lonestar Opportunity Fund |
14. | Clarion Partners |
15. | Walton Street Capital, LLC |
16. | Starwood Financial Trust |
17. | BlackRock, Inc. |
18. | Raith Capital Partners, LLC |
19. | Rialto Capital Management, LLC |
C-1 |
SCHEDULE I
The Note A-2 PSA shall provide that:
(i) the applicable Master Servicer or Trustee for the Note A-2 Securitization shall be required to provide written notice to each of the Note A-1 Master Servicer, the Note A-3 Master Servicer, the Note A-1 Trustee and the Note A-3 Trustee of any P&I Advance it has made with respect to Note A-2 within two (2) Business Days of making such advance;
(ii) if the Master Servicer determines that a proposed P&I Advance with respect to Note A-2 or Servicing Advance with respect to the Mortgage Loan, if made, or any outstanding P&I Advance or Servicing Advance previously made, would be, or is, as applicable, a nonrecoverable advance, the Master Servicer shall provide each of the Note A-1 Master Servicer and Note A-3 Master Servicer written notice of such determination promptly after such determination was made together with such reports that the Master Servicer delivered to the Special Servicer or the Trustee in connection with notification of its determination of nonrecoverability;
(iii) the Note A-2 Master Servicer shall remit all payments received with respect to the Note A-1 and Note A-3, net of the Servicing Fee payable with respect to each such Non-Lead Securitization Note, and any other applicable fees and reimbursements payable to the Note A-2 Master Servicer, the Note A-2 Special Servicer and the Note A-2 Trustee, to the other Holders on or prior to the Business Day immediately preceding the Remittance Date for the Note A-1 Securitization or the Note A-3 Securitization, as applicable;
(iv) with respect to each of Note A-1 and Note A-3 that is held by a Securitization, the Note A-2 Certificate Administrator agrees to make available to each of the Note A-1 Holder and the Note A-3 Holder or, if such Non-Controlling Note is securitized, to each of the Note A-1 Master Servicer and the Note A-3 Master Servicer (or, if so requested, the related certificate administrator) certain reports required to be delivered pursuant to the Note A-2 PSA (which shall include all loan-level reports constituting the CREFC Investor Reporting Package) to the extent related to the Mortgage Loan or the Non-Controlling Note, which reports, to the extent they relate to the funds remitted to each of the Note A-1 Holder or the Note A-3 Holder, shall be transmitted to each such holder no later than the time of remittance;
(v) the Note A-2 Master Servicer shall provide (in electronic media) to each Note A-1 Holder and the Note A-3 Holder (i) copies of operating statements and rent rolls; (ii) annual CREFC® NOI Adjustment Worksheets (with annual operating statements as exhibits); and (iii) annual CREFC® Operating Statement Analysis Reports, in each case prepared, received or obtained by it pursuant to the Note A-2 PSA with respect to the Mortgaged Propert(y)(ies) securing the Non-Controlling Notes;
(vi) the servicing duties of each of the Note A-2 Master Servicer and the Note A-2 Special Servicer under the Note A-2 PSA shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Note Holders (including the respective trustees and certificateholders) in accordance with (i) applicable laws, (ii) this
C-2 |
Agreement and the Note A-2 PSA and (iii) to the extent consistent with the foregoing, the Servicing Standard;
(vii) the Servicing Standard in the Note A-2 PSA shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder and act in the best interests and for the benefit of the Note Holders together with the certificateholders of the Note A-2 Securitization, as a collective whole as if such Note Holders and certificateholders constituted a single lender;
(viii) the Note A-1 and Note A-3 Holders shall be entitled to the same indemnity as the Note A-2 Holder under the Note A-2 PSA; each of the Note A-2 Master Servicer, the Note A-2 Special Servicer, the Note A-2 Trustee, the Note A-2 Certificate Administrator and the Note A-2 Senior Trust Advisor shall be required to indemnify each each of the Note A-1 Depositor, the Note A-3 Depositor, the Note A-1 Holder and the Note A-3 Holder and their respective employees, directors and officers for all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses, including any reasonable out-of-pocket legal or other expenses incurred in connection with investigating or defending any such action or claim, arising out of (i) the failure to deliver the items in clause (ix) below, (ii) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (iii) any failure by the Note A-2 Master Servicer or Note A-2 Special Servicer to identify a Servicing Function Participant under the Note A-2 PSA retained by it by the time required after giving effect to any applicable grace period and cure period and/or (iv) delivery of any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;
(ix) with respect to either the Note A-1 Securitization or the Note A-3 Securitization that is subject to following reporting requirements under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, (a) the Note A-2 Master Servicer, any primary servicer, the Note A-2 Special Servicer, the Note A-2 Trustee and the certificate administrator or other party acting as custodian for the Note A-2 Securitization shall be required to deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause an Initial Sub-Servicer to deliver), in a timely manner (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form ABS-15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in each of the Note A-1 PSA and the Note A-3 PSA, in the case of clauses (i) and (ii), as the Note A-1 Depositor or the Note A-3 Depositor, as applicable, or the Note A-1 Trustee or the Note A-3 Trustee, as applicable, to the applicable Securitization reasonably believes, in good faith, are required in order for the Note A-1 Depositor or the Note A-3 Depositor, as applicable, or the Note A-1 Trustee or the Note A-3 Trustee, as applicable, to comply with their obligations under the Securities Act of 1933, the Securities Exchange Act of 1934 (including Rule 15Ga-1, as amended) and Regulation AB, and (b) without limiting the generality of the foregoing, (x) the Note A-2 Trustee or the Note A-2 Certificate Administrator, as applicable, shall, upon request, provide or cause to be provided with notice in a timely manner to each of the Note A-1
C-3 |
Trustee and the Note A-3 Trustee for such Securitization a copy of the Note A-2 PSA and (y) the Note A-2 Master Servicer and Note A-2 Special Servicer shall, upon reasonable prior written request, and subject to the right of the Note A-2 Master Servicer or the Note A-2 Special Servicer, as the case may be, to review and approve such disclosure materials, permit the Note A-1 Holder and the Note A-3 Holder to use such party’s description contained in the Note A-2 prospectus (updated as appropriate by the Note A-2 Master Servicer or Note A-2 Special Servicer, as applicable, at the cost of the Note A-1 Depositor or the Note A-3 Depositor, as applicable) for inclusion in the disclosure materials relating to any securitization of Note A-1 or Note A-3 and (z) the Note A-2 Master Servicer and Note A-2 Special Servicer, shall provide indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case, at the cost of the Note A-1 or Note A-3 Depositor, as applicable). The Note A-2 Master Servicer and the Note A-2 Special Servicer shall each be required to provide certification and indemnification to any certifying person with respect to the Note A-1 Securitization and the Note A-3 Securitization with respect to any applicable Sarbanes-Oxley Certification (or analogous terms);
(x) the Note A-1 Depositor and the Note A-3 Depositor shall be entitled to indemnification from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses, including any reasonable out-of-pocket legal or other expenses incurred in connection with investigating or defending any such action or claim, arising out of (i) an actual breach by the Note A-2 Master Servicer, the Note A-2 Special Servicer, the Note A-2 Certificate Administrator or the Note A-2 Trustee, as the case may be, of its obligations under Article X of the Note A-2 PSA (or such other provision of the Note A-2 PSA relating to compliance with the reporting requirements of the Securities Exchange Act of 1934 (including Rule 15Ga-1)), (ii) negligence, bad faith or willful misconduct on the part of the Note A-2 Master Servicer, the Note A-2 Special Servicer, the Note A-2 Certificate Administrator or the Note A-2 Trustee, as applicable, in the performance of such obligations under the Note A-2 PSA, or (iii) delivery of any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, the Note A-1 Depositor and the Note A-3 Depositor;
(xi) the Note A-1 Holder and the Note A-3 Holder are intended third-party beneficiaries in respect of the rights afforded them under the Note A-2 PSA and the Note A-1 Master Servicer and Note A-3 Master Servicer will be entitled to enforce the rights of the Note A-1 Holder or the Note A-3 Holder, as applicable, under this Agreement and the Note A-2 PSA;
(xii) each of the Note A-1 Master Servicer, the Note A-3 Master Servicer, the Note A-1 Special Servicer and the Note A-3 Special Servicer shall be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of Advances;
(xiii) if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Note A-2 Special Servicer determines to sell the Note A-2 in accordance with the Note A-2 PSA, it shall have the right and the obligation to sell all of the Notes as notes evidencing one
C-4 |
whole loan in accordance with the terms of the Note A-2 PSA. In connection with any such sale, the Special Servicer shall provide notice to each Non-Controlling Note Holder of the planned sale and of such Non-Controlling Note Holder’s opportunity to bid on the Mortgage Loan;
(xiv) if any action relating to the servicing and administration of the Mortgage Loan requires delivery of a Rating Agency Confirmation as a condition precedent to such action, then, except as set forth in the Note A-1 PSA, such action shall also require delivery of a Rating Agency Confirmation from any Rating Agency that was engaged by a participant in the applicable Non-Lead Securitization to assign a rating to the related commercial mortgage pass-through certificates issued in connection with such Non-Lead Securitization;
(xv) Servicer Termination Events (or analogous events) with respect to the Master Servicer and the Special Servicer shall include (i) the failure to timely remit payments to the Non-Lead Securitization Note Holders, which failure continues unremedied for one business day following the date on which such payment was to be made; and (ii) the failure to provide to the Non-Lead Securitization Note Holders (if and to the extent required under the applicable Non-Lead Securitization) reports required under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, in a timely fashion. Upon the occurrence of such a Servicer Termination Event affecting a Non-Lead Securitization Note Holder, the Trustee shall, upon the direction of the related Non-Lead Securitization Note Holder, require the appointment of a subservicer with respect to the related Non-Lead Securitization Note;
(xvi) compensating interest payments as defined therein with respect to each Note will be allocated by the Note A-2 Master Servicer between each Note, pro rata, in accordance with their respective principal amounts. The Note A-2 Master Servicer shall remit any compensating interest payment in respect of each of Note A-1 and Note A-3 related to the related Note Holder; and
(xvii) any conflict between the Note A-2 PSA and this Agreement shall be resolved in favor of this Agreement.
C-5 |
Exhibit 4.9
EXECUTION VERSION
AGREEMENT BETWEEN NOTE HOLDERS
Dated as of June 4, 2015
by and between
BANK OF AMERICA, N.A.
(Initial Note A-1 Holder)
and
BANK OF AMERICA, N.A.
(Initial Note A-2 Holder)
Aviare Place Apartments Loan
TABLE OF CONTENTS
Page | |||
Section 1. | Definitions | 2 | |
Section 2. | Servicing of the Mortgage Loan | 14 | |
Section 3. | Priority of Payments | 21 | |
Section 4. | Workout | 22 | |
Section 5. | Administration of the Mortgage Loan | 22 | |
Section 6. | Rights of the Controlling Note Holder | 26 | |
Section 7. | Appointment of Special Servicer | 28 | |
Section 8. | Payment Procedure | 29 | |
Section 9. | Limitation on Liability of the Note Holders | 30 | |
Section 10. | Bankruptcy | 30 | |
Section 11. | Representations of the Note Holders | 31 | |
Section 12. | No Creation of a Partnership or Exclusive Purchase Right | 32 | |
Section 13. | Other Business Activities of the Note Holders | 32 | |
Section 14. | Sale of the Notes | 32 | |
Section 15. | Registration of the Notes and Each Note Holder | 35 | |
Section 16. | Governing Law; Waiver of Jury Trial | 36 | |
Section 17. | Submission To Jurisdiction; Waivers | 36 | |
Section 18. | Modifications | 37 | |
Section 19. | Statement of Intent | 37 | |
Section 20. | Successors and Assigns; Third Party Beneficiaries | 37 | |
Section 21. | Counterparts | 37 | |
Section 22. | Captions | 37 | |
Section 23. | Severability | 37 | |
Section 24. | Entire Agreement | 38 | |
Section 25. | Withholding Taxes | 38 | |
Section 26. | Custody of Mortgage Loan Documents | 39 | |
Section 27. | Cooperation in Securitization | 39 | |
Section 28. | Notices | 40 | |
Section 29. | Broker | 40 | |
Section 30. | Certain Matters Affecting the Agent | 41 | |
Section 31. | Reserved | 41 | |
Section 32. | Resignation or Termination of Agent | 41 | |
Section 33. | Resizing | 42 |
-i- |
This AGREEMENT BETWEEN NOTE HOLDERS (this “Agreement”), dated as of June 4, 2015 by and between BANK OF AMERICA, N.A. (“BANA” and together with its successors and assigns in interest, in its capacity as initial owner of Note A-1 described below, the “Initial Note A-1 Holder” and in its capacity as the initial agent, the “Initial Agent”) and BANA (together with its successors and assigns in interest, in its capacity as initial owner of Note A-2 described below, the “Initial Note A-2 Holder”; the Initial Note A-1 Holder and the Initial Note A-2 Holder are referred to collectively herein as the “Initial Note Holders”).
W I T N E S S E T H:
WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), BANA originated a certain loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which was evidenced, inter alia, by one original promissory note, dated as of October 31, 2014 in the original principal amount of $26,322,000 and made by the Mortgage Loan Borrower in favor of BANA, as lender, (i) a replacement, amended and restated promissory note designated Promissory Note A-1 in the original principal amount of $20,850,000 and (ii) a replacement, amended and restated promissory note designated Promissory Note A-2 in the original principal amount of $5,472,000. The note referenced in clause (i) of the preceding sentence, as amended, modified or supplemented, is referred to herein as “Note A-1”; the note referenced in clause (ii) of the preceding sentence, as amended, modified or supplemented, is referred to herein as “Note A-2”. Note A-1 and Note A-2 are collectively referred to herein as the “Notes”. The Notes are secured by the same first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real properties located as described on the Mortgage Loan Schedule (the “Mortgaged Property”);
WHEREAS, the Initial Note A-1 Holder intends to sell, transfer and assign its right, title and interest in and to Note A-1 to Morgan Stanley Capital I Inc. (“MSCII”) pursuant to a Mortgage Loan Purchase Agreement expected to be dated as of June 5, 2015, between MSCII, as purchaser, and the Initial Note A-1 Holder, as seller, and MSCII intends to transfer its right, title and interest in and to Note A-1 to Wilmington Trust, National Association, as trustee for Morgan Stanley Bank of America Merrill Lynch Trust 2015-C23 under a pooling and servicing agreement, expected to be dated as of June 1, 2015 (the “Note A-1 PSA”), between MSCII, as depositor, Wells Fargo Bank, National Association, as master servicer, LNR Partners, LLC, as general special servicer, Wells Fargo Bank, National Association, as excluded mortgage loan special servicer, Pentalpha Surveillance LLC, as trust advisor, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian;
WHEREAS, the Initial Note A-1 Holder and the Initial Note A-2 Holder desire to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold Note A-1 and Note A-2, respectively;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
-1- |
Section 1. Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Lead Securitization Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.
“Acceptable Insurance Default” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Advances” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Affiliate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.
“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and from and after the Securitization Date shall mean the Master Servicer.
“Agent Office” shall mean the designated office of the Agent, which office, as of the date of this Agreement, is the office of the Initial Note A-1 Holder listed on Exhibit B hereto, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Note Holders.
“Agreement” shall mean this Agreement between Note Holders, any exhibits and schedules hereto and all amendments hereof and thereof and supplements hereto and thereto.
“Applicable Interest Rate” shall mean have the meaning assigned to such term or analogous term in the Mortgage Loan Agreement.
“Approved Servicer” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“BANA” shall have the meaning assigned to such term in the preamble to this Agreement.
“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.
“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“CDO Asset Manager” with respect to any Securitization Vehicle that is a CDO, shall mean the entity that is responsible for managing or administering a Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of such Note).
-2- |
“Certificate Administrator” shall mean the certificate administrator appointed as provided in the Lead Securitization Servicing Agreement.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Conduit” shall have the meaning assigned to such term in Section 14(d).
“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).
“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).
“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.
“Controlling Note” shall mean the Note A-1.
“Controlling Note Holder” shall mean the holder of the Controlling Note; provided that at any time Note A-1 is included in a Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement; provided that for so long as 50% or more of the Controlling Note is held by (or the party assigned the rights to exercise the rights of the “Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, the Controlling Note (and such party assigned the rights to exercise the rights of the “Controlling Note Holder” as described above) shall not be entitled to exercise any rights of the Controlling Note Holder, and there shall be deemed to be no Controlling Note Holder hereunder.
“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
“DBRS” shall mean DBRS, Inc., and its successors-in-interest.
“Depositor” shall mean (i) with respect to the Note A-1 Securitization, MSCII and (ii) with respect to the Note A-2 Securitization, the depositor under the Note A-2 PSA.
“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.
“Fitch” shall mean Fitch Ratings, Inc., and its successors-in-interest.
-3- |
“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note A-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.
“Initial Note Holders” shall have the meaning assigned to such term in the preamble to this Agreement.
“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity or entities.
“Interested Person” shall mean the Depositor, any Non-Lead Depositor, the Master Servicer, any Non-Lead Master Servicer, the Special Servicer, any Non-Lead Special Servicer, the Trustee, any Non-Lead Trustee, any Mortgage Loan Borrower, any manager of any Mortgaged Property, any independent contractor engaged by any of the foregoing parties, the Controlling Note Holder, the Controlling Note Holder Representative, any Non-Controlling Note Holder, any Non-Controlling Note Holder Representative, any holder of a related mezzanine loan, or any known Affiliate of any such party described above.
“Intervening Trust Vehicle” with respect to any Securitization Vehicle that is a CDO, shall mean a trust vehicle or entity that holds any Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CDO.
“KBRA” shall mean Kroll Bond Rating Agency, Inc. and its successors-in-interest.
“Lead Securitization” shall mean the Note A-1 Securitization.
“Lead Securitization Controlling Class Representative” shall mean the “Controlling Class Representative” as defined in the Lead Securitization Servicing Agreement.
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“Lead Securitization Note” shall mean Note A-1.
“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note.
“Lead Securitization Servicing Agreement” shall mean the Note A-1 PSA; provided that on and after the date on which the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the “Lead Securitization Servicing Agreement” shall be determined in accordance with the second paragraph of Section 2(a).
“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.
“Major Decisions” shall mean each “Major Decision” as defined in the Lead Securitization Servicing Agreement.
“Master Servicer” shall mean the master servicer appointed as provided in the Lead Securitization Servicing Agreement.
“Monthly Payment Date” shall mean have the meaning assigned to such term or analogous term in the Mortgage Loan Agreement.
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors-in-interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and any of its successors-in-interest, assigns, or changed entity name or designation resulting from any acquisition by Morningstar, Inc. or other similar entity of Morningstar Credit Ratings, LLC.
“Mortgage” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of October 31, 2014, between BANA, as lender, and the Mortgage Loan Borrower, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.
“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.
“Mortgage Loan Borrower Related Party” shall have the meaning assigned to such term in Section 13.
“Mortgage Loan Documents” shall mean, with respect to the Mortgage Loan, the Mortgage Loan Agreement, the Mortgage, the Notes and all other documents now or hereafter evidencing and securing the Mortgage Loan.
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“Mortgage Loan Schedule” shall have the meaning assigned to such term in the recitals.
“Mortgaged Property” shall have the meaning assigned to such term in the recitals.
“MSCII” shall mean Morgan Stanley Capital I Inc.
“New Notes” shall have the meaning assigned to such term in Section 33.
“Non-Controlling Note” means Note A-2, and any New Note designated as a “Non-Controlling Note” hereunder pursuant to Section 33.
“Non-Controlling Note Holder” means any holder of a Non-Controlling Note; provided that at any time such holder’s respective Note is included in a Securitization, references to such “Non-Controlling Note Holder” herein shall mean the “Controlling Class Representative” or any other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” hereunder, as and to the extent provided in the related Securitization Servicing Agreement and as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided that for so long as 50% or more of any Non-Controlling Note is held by (or the majority “controlling class” holder or other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or an Affiliate of the Mortgage Loan Borrower, such Non-Controlling Note (and the majority “controlling class” holder or other party assigned the rights to exercise the rights of such “Non-Controlling Note Holder” as described above) shall not be entitled to exercise any rights of such Non-Controlling Note Holder, and there shall be deemed to be no Non-Controlling Note Holder hereunder with respect to such Non-Controlling Note. The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party in respect of any Note that is exercising the rights of a “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement and (x) to the extent that the related Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent any Note is split into two or more New Notes pursuant to Section 33, for purposes of this Agreement, the applicable Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as a Non-Controlling Note Holder, as a Non-Controlling Note Holder under this Agreement.
“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).
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“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit the Servicer on behalf of the Note Holders to make such payments free of any obligation or liability for withholding.
“Non-Lead Depositor” shall mean the “depositor” under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Master Servicer” shall mean the “master servicer” under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Securitization Note” shall mean Note A-2.
“Non-Lead Securitization Note Holder” shall mean any holder of a Non-Lead Securitization Note.
“Non-Lead Securitization Servicing Agreement” shall mean the Note A-2 PSA.
“Non-Lead Special Servicer” shall mean the “special servicer” under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Trust Advisor” shall mean the “trust advisor”, “operating advisor” or other analogous term under any Non-Lead Securitization Servicing Agreement.
“Non-Lead Trustee” shall mean the “trustee” under any Non-Lead Securitization Servicing Agreement.
“Note A-1” shall have the meaning assigned to such term in the recitals.
“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.
“Note A-1 Master Servicer” shall mean the master servicer under the Note A-1 PSA.
“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the “Promissory Note A-1 Principal Balance” set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-1 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-1 PSA” shall have the meaning assigned to such term in the recitals.
“Note A-1 Securitization” shall mean the first sale by the Note A-1 Holder of all or a portion of Note A-1 to a depositor who will in turn include such portion of Note A-1 as part of the securitization of one or more mortgage loans.
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“Note A-1 Securitization Date” shall mean the closing date of the Note A-1 Securitization.
“Note A-1 Special Servicer” shall mean the special servicer under the Note A-1 PSA.
“Note A-1 Trustee” shall mean the trustee under the Note A-1 PSA.
“Note A-1 Trust Fund” shall mean the trust formed pursuant to the Note A-1 PSA.
“Note A-2” shall have the meaning assigned to such term in the recitals.
“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.
“Note A-2 Master Servicer” shall mean the master servicer under the Note A-2 PSA.
“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the “Promissory Note A-2 Principal Balance” set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A-2 Holder or reductions in such amount pursuant to Section 3 or 4, as applicable.
“Note A-2 PSA” shall mean the “pooling and servicing agreement” entered into in connection with the Note A-2 Securitization.
“Note A-2 Securitization” shall mean the first sale by the Note A-2 Holder of all or a portion of Note A-2 to a depositor who will in turn include such portion of Note A-2 as part of the securitization of one or more mortgage loans.
“Note A-2 Securitization Date” shall mean the closing date of the Note A-2 Securitization.
“Note A-2 Special Servicer” shall mean the special servicer under the Note A-2 PSA.
“Note A-2 Trustee” shall mean the trustee under the Note A-2 PSA.
“Note A-2 Trust Fund” shall mean the trust formed pursuant to the Note A-2 PSA.
“Note Holder Representative” shall mean a Controlling Note Holder Representative or a Non-Controlling Note Holder Representative, as applicable.
“Note Holders” shall mean collectively, the Note A-1 Holder and the Note A-2 Holder.
“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).
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“Note Register” shall have the meaning assigned to such term in Section 15.
“Notes” shall have the meaning assigned to such term in the recitals.
“P&I Advance” shall mean an advance made by a party to any Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Note securitized pursuant to such Securitization Servicing Agreement.
“Percentage Interest” shall mean, (a) with respect to the Note A-1 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-1 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance, and (b) with respect to the Note A-2 Holder, a fraction, expressed as a percentage, the numerator of which is the Note A-2 Principal Balance and the denominator of which is the sum of the Note A-1 Principal Balance and the Note A-2 Principal Balance.
“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.
“Pledge” shall have the meaning assigned to such term in Section 14(c).
“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.
“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other U.S. Person that is:
(a) an entity Controlled by, under common Control with or that Controls any of the Initial Note Holders, or
(b) the trustee on behalf of the trust certificates issued pursuant to a master trust agreement involving a CDO comprised of, or other securitization vehicle involving, assets deposited or transferred by a Note Holder and/or one or more Affiliates (whether with assets from others or not), provided that the securities issued in connection with such CDO or other securitization vehicle are rated by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with the Lead Securitization, or
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(c) one or more of the following:
(i) an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or
(ii) an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended, or
(iii) a Qualified Trustee in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise subject to Rating Agency Confirmations from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iv) or (v) of this definition, or
(iv) an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Initial Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or
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more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), or
(v) an institution substantially similar to any of the foregoing, and
in the case of any entity referred to in clause (c)(i), (ii), (iii), (iv)(B) or (v) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or
(d) any entity Controlled by any of the entities described in clause (b) above or that is the subject of a Rating Agency Confirmation as a Qualified Institutional Lender for purposes of this Agreement from each of the Rating Agencies engaged by the Depositor for the Lead Securitization Trust to rate the securities issued by the related Securitization Trust.
“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated either of the then in effect top two rating categories of each of the applicable Rating Agencies (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P).
“Rating Agencies” shall mean DBRS, Fitch, KBRA, Moody’s, Morningstar and S&P and their respective successors-in-interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably engaged by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, however, that, at any time during which one or more of the Notes is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the related depositor (or its Affiliate) from time to time to rate the securities issued in connection with the Securitizations of the Notes.
“Rating Agency Communication” shall mean, with respect to any action and any Securitization, any written communication intended for a Rating Agency, which shall be delivered at least ten (10) Business Days prior to completing such action, in electronic document format suitable for website posting to the 17g-5 information provider under the applicable Securitization Servicing Agreement.
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“Rating Agency Confirmation” shall mean, with respect to any Securitization, a confirmation in writing by each of the applicable Rating Agencies for such Securitization that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the securities issued pursuant to such Securitization that are then outstanding. If no such securities are outstanding with respect to any Securitization, any action that would otherwise require a Rating Agency Confirmation shall instead require the consent of the Lead Securitization Note Holder, which consent shall not be unreasonably withheld or delayed. For the purposes of this Agreement, if any Rating Agency shall waive, decline or refuse to review or otherwise engage any request for Rating Agency Confirmation hereunder, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that a Rating Agency Confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for a Rating Agency Confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for a Rating Agency Confirmation hereunder and the condition for Rating Agency Confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).
“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.
“REMIC” shall mean a real estate mortgage investment conduit within the meaning 860D(a) of the Code.
“REMIC Provisions” shall mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“REO Property” shall have the meaning assigned to the term “REO Property” or such other analogous term used in the Lead Securitization Servicing Agreement.
“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12)
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month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of Morningstar, such special servicer has a ranking by Morningstar equal to or higher than “MOR CS3” as a special servicer, provided that if Morningstar has not issued a ranking with respect to such special servicer, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by a Rating Agency within the twelve (12) month period prior to the date of determination, and Morningstar has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, (v) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination and (vi) in the case of DBRS, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS within the twelve (12) month period prior to the date of determination and DBRS has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities as a material reason for such downgrade or withdrawal.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors-in-interest.
“Scheduled Interest Payment” shall mean the scheduled payment of interest due on the Mortgage Loan on a Monthly Payment Date.
“Scheduled Principal Payment” shall mean the scheduled payment of principal due on the Mortgage Loan on a Monthly Payment Date.
“Securitization” shall mean the Note A-1 Securitization or the Note A-2 Securitization, as applicable.
“Securitization Date” shall mean the effective date on which the Securitization of the first Note or portion thereof is consummated.
“Securitization Servicing Agreement” shall mean the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement, as applicable.
“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which one or more of the Notes are held.
“Securitization Vehicle” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender”.
“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.
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“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Advance” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.
“Servicing Standard” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.
“Special Servicer” shall mean the special servicer or excluded mortgage loan special servicer, as applicable, appointed as provided in the Lead Securitization Servicing Agreement.
“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.
“Transfer” shall have the meaning assigned to such term in Section 14.
“Trust Advisor” shall mean the “trust advisor”, “operating advisor” or other analogous term appointed as provided in the Lead Securitization Servicing Agreement.
“Trustee” shall mean the trustee appointed as provided in the Lead Securitization Servicing Agreement.
“U.S. Person” shall mean a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, or an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which is eligible to elect to be treated as a U.S. Person).
Section 2. Servicing of the Mortgage Loan.
(a) Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced from and after the Note A-1 Securitization Date by the Note A-1 Master Servicer and the Note A-1 Special Servicer pursuant to the terms of
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this Agreement and the Note A-1 PSA; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges that any other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 27, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the Special Servicer by the Controlling Note Holder and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). The Lead Securitization Servicing Agreement shall not limit the Servicer in enforcing the rights of one Note Holder against any other Note Holder as may be required in order to service the Mortgage Loan as contemplated by this Agreement and the Lead Securitization Servicing Agreement; provided, that it is also understood and agreed that nothing in this sentence shall be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement (i) to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, and shall(ii) to provide information to each servicer under each Non-Lead Securitization Servicing Agreement necessary to enable each such servicer to perform its servicing duties under such Non-Lead Securitization Servicing Agreement, and (iii) to not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.
At any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement, and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that if a Non-Lead Securitization Note is in a Non-Lead Securitization and the servicer(s) to be appointed under such replacement servicing agreement would not otherwise meet the conditions to be a servicer under such Non-Lead Lead Securitization Servicing Agreement that is being replaced, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to the securities issued in connection with such Non-Lead Securitization; provided, further, however, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full
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force and effect with respect to the Mortgage Loan, by the Servicer in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a qualified servicer meeting the requirements of the Lead Securitization Servicing Agreement.
(b) The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee, to the extent provided in the Lead Securitization Servicing Agreement) shall make the following advances, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement: (i) Servicing Advances on the Mortgage Loan and (ii) P&I Advances on the Lead Securitization Note. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first, from funds on deposit in the Collection Account (as defined in the Lead Securitization Servicing Agreement) and/or the related Serviced Companion Loan Custodial Account (as defined in the Lead Securitization Servicing Agreement) for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Servicing Advances that are Nonrecoverable Advances, if such funds on deposit in the Collection Account and the Serviced Companion Loan Custodial Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for Advance Interest on a Servicing Advance (including any Nonrecoverable Advance) in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement for a Servicing Advance that is a Nonrecoverable Advance or any Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), each Non-Lead Securitization Note Holder (including any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Advance or Advance Interest.
In addition, any Non-Lead Securitization Note Holder (including, but not limited to, any Securitization Trust into which such Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Trust Advisor, the Depositor or CREFC®, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts. Each Non-Lead Securitization Note Holder agrees to indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Depositor under the Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Trust Advisor (and any director, officer, member, manager, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in
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respect of other mortgage loans) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property (or, with respect to the Trust Advisor, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts, each Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency; provided, that a Non-Lead Securitization Note Holder’s duty to pay Indemnified Items to the Trust Advisor shall be subject to any limitations and conditions (including limitations and conditions with respect to the timing of such payments and the sources of funds for such payments) as may be set forth from time to time in the Non-Lead Securitization Servicing Agreement.
Any Non-Lead Master Servicer (or Non-Lead Trustee (if not made by such Non-Lead Master Servicer)) may be required to make P&I Advances on the respective Non-Lead Securitization Note, from time to time, subject to the terms of the related Non-Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. Any Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee under any Non-Lead Securitization Servicing Agreement, as applicable, shall each be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the related Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and any Non-Lead Master Servicer or Non-Lead Trustee, as applicable, shall each be required to notify the other of the amount of its P&I Advance within two (2) Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Servicing Advance would be non-recoverable or an outstanding Servicing Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or such Non-Lead Master Servicer or Non-Lead Trustee (as provided in the related Non-Lead Securitization Servicing Agreement, in the case of the a determination of non-recoverability by a Non-Lead Master Servicer, a Non-Lead Special Servicer or a Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the related Non-Lead Master Servicer and the related Non-Lead Trustee, as the case may be, of such other Securitization within one (1) Business Day of making such determination. Each of the Master Servicer and the Trustee, any Non-Lead Master Servicer and any Non-Lead Trustee, as applicable, shall only be
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entitled to reimbursement for a P&I Advance and Advance Interest thereon that becomes non-recoverable first, from the Serviced Companion Loan Custodial Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of each Non-Lead Securitization Note, from general collections of the related Securitization Trust, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement.
(c) Each Non-Lead Securitization Note Holder, if its Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:
(i) such Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Servicing Advances that are Nonrecoverable Advances (and Advance Interest thereon) and any Additional Trust Fund Expenses, but only to the extent that they relate to servicing and administration of the Notes and the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that the funds received with respect to each respective Note are insufficient to cover such Servicing Advances or Additional Trust Fund Expenses, (i) the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, pay or reimburse, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Servicing Advances that are Nonrecoverable Advances and/or Additional Trust Fund Expenses, and (ii) if the Lead Securitization Servicing Agreement permits the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee to reimburse itself from the Lead Securitization Trust’s general collections, then the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may do so and the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, pay or reimburse, reimburse the Lead Securitization Trust out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Servicing Advances that are Nonrecoverable Advances and/or Additional Trust Fund Expenses;
(ii) each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by the Securitization Trust holding such Non-Lead Securitization Note, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the related “Serviced Pari Passu Companion Loan Custodial Account” are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the
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insufficiency out of general collections in the collection account (or equivalent account) established under such Non-Lead Securitization Servicing Agreement; provided, however, that the Non-Lead Securitization Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Trust Advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements).
(iii) the related Non-Lead Master Servicer will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Trust Advisor (i) promptly following Securitization of such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the certificate administrator, the Non-Lead Master Servicer, the Non-Lead Special Servicer and the party designated to exercise the rights of the “Non-Controlling Note Holder” under this Agreement), accompanied by a certified copy of the related executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the Non-Lead Master Servicer or the party designated to exercise the rights of the “Non-Controlling Note Holder” with respect to such Non-Lead Securitization Note under this Agreement (together with the relevant contact information); and
(iv) the Master Servicer and the Special Servicer and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.
(d) Prior to the Securitization of any Note (including any New Note), all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the master servicer and the special servicer with respect to such Securitization (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.
(e) In addition to the foregoing, the Note A-2 PSA shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of the
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Note A-2 Trust Fund, (ii) required by law or changes in any law, rule or regulation or (iii) requested by the Rating Agencies rating the Note A-2 Securitization. The Note A-2 Holder shall have the right to designate the Note A-2 Master Servicer and Note A-2 Special Servicer as long as each such party satisfies the conditions for such Servicer set forth in the Note A-1 PSA. Without limiting the generality of any provision set forth above, for purposes of the Mortgage Loan, the Note A-2 PSA shall contain (a) provisions requiring the Note A-2 Master Servicer and the Note A-2 Special Servicer to maintain, or subjecting them to possible termination for not maintaining, compliance with customary servicer rating criteria (but the rating agencies need not be the same) and (b) provisions substantially similar in all material respects to or materially consistent with those set forth in Note A-1 PSA with respect to (i) periodic reporting and periodic delivery of service provider compliance documents under Regulation AB (and, in any event, the Note A-2 PSA shall require such reporting and delivery so long as the Note A-1 Securitization is required to file periodic reports under the Securities Exchange Act of 1934, as amended), (ii) servicing transfer events that would result in the transfer of the Mortgage Loan to special servicing status, (iii) the authority of the servicers in the Note A-2 Securitization to grant or agree or consent to material modifications, waivers and amendments to the Mortgage Loan, or to approve material assignments and assumptions or material additional indebtedness in connection with the Mortgage Loan, (iv) the potential termination of the master servicer and special servicer following a Servicer Termination Event, (v) requirements to obtain an appraisal or appraisal update following a transfer of the Mortgage Loan to special servicing status and periodic updates thereof, (vi) duties of the special servicer in respect of foreclosure and the management of REO property, (vii) special servicing, workout and liquidation fees (and, in any event, the fees at which such compensation accrue or are determined shall not exceed 0.25%, 1.00% and 1.00%, respectively) and (viii) indemnification of the Depositor under the Note A-1 PSA, the Note A-1 Master Servicer, the Note A-1 Special Servicer, the certificate administrator under the Note A-1 PSA, the Note A-1 Trustee and the trust advisor under the Note A-1 PSA (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Note A-1 PSA in respect of other mortgage loans) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the trust advisor under the Note A-1 PSA, incurred in connection with the provision of services for the Mortgage Loan) to the same extent that the Note A-1 PSA indemnifies the Indemnified Parties against the Indemnified Items; provided that (A) this statement shall not be construed to prohibit differences in timing, control or consultation triggers or threshholds, terminology, allocation of ministerial duties between multiple servicers or other service providers or certificateholder or investor voting or consent threshholds, or to prohibit or restrict additional approval, consent, consultation, notice or rating agency communication and confirmation requirements; and (B) if there is any conflict between this sentence and any other provision of this Agreement, such other provision of this Agreement shall control.
(f) The Note A-2 Holder shall give each of the parties to the Note A-1 PSA (that will not also be a party to the Note A-2 PSA) notice of the Note A-2 Securitization in writing (which may be by e-mail) prior to the Note A-2 Securitization Date. Such notice shall contain contact information for each of the parties to the Note A-2 PSA. In addition, after the Note A-2 Securitization Date, the Note A-2 Holder shall send a copy of the Note A-2 PSA to each of the parties to the Note A-1 PSA.
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Section 3. Priority of Payments. Each Note shall be of equal priority, and no portion of any Note shall have priority or preference over any portion of any other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Scheduled Interest Payments, Scheduled Principal Payments, any proceeds from the sale or distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds, or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent and in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Servicing Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement (it being understood that subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, the right to reimbursement of such Servicing Advances is senior to that of any Note Holder to receive payments on its Note) and (y) all amounts that are then due, payable or reimbursable (including, without limitation, (i) any reimbursement of P&I Advances (and interest thereon) on the Lead Securitization Note and (ii) any Master Servicing Fees due to the Master Servicer in excess of a Non-Lead Securitization Note’s pro rata share of that portion of such servicing fees calculated at the “primary servicing fee rate” applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement) to any Servicer, with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement (including without limitation, any Additional Trust Fund Expenses relating to the Mortgage Loan (but subject to the second paragraph of Section 5(d) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Workout Fees, Default Charges (to the extent provided in the immediately following paragraph) and any other additional compensation payable to the Master Servicer, the Special Servicer or any other party pursuant to the Lead Securitization Servicing Agreement), shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis.
For clarification purposes, “Default Charges” (or analogous term as defined in the Lead Securitization Servicing Agreement) paid on each Note shall, first, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Servicing Advances and reimbursement of any Servicing Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, be used to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, any Non-Lead Master Servicer or any Non-Lead Trustee, as applicable, for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or applicable Non-Lead Securitization Servicing Agreement, as applicable), third, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay Additional Trust Fund Expenses (other than Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, (i) in the case of the
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remaining amount of Default Charges allocable to the Lead Securitization Note, be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement and (ii) in the case of the remaining amount of Default Charges allocable to a Non-Lead Securitization Note, be paid, (x) prior to the securitization of such Note, to the related Note Holder and (y) following the securitization of such Note, to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement.
Section 4. Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement, and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Applicable Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.
Section 5. Administration of the Mortgage Loan.
(a) Subject to this Agreement (including, without limitation, Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder), shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or to consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and any Non-Lead Securitization Note Holder shall have no voting, consent or other rights whatsoever except as explicitly set forth herein or in the Lead Securitization Servicing Agreement with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, any Non-Lead Securitization Note Holder shall have no right (and the Note A-2 Holder hereby presently and irrevocably assigns and conveys to the Note A-1 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of
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funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).
Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Loan, to sell the Notes together as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell the Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder unless the Special Servicer has delivered to such Non-Lead Securitization Note Holder: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicer Mortgage File requested by such Non-Lead Securitization Note Holder and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the related “Controlling Class Representative” (or other similar term)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale. Subject to the foregoing, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holder and any Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan.
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Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of its Note. Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) further agrees that, upon the request of the Lead Securitization Note Holder, such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and each Note Holder agrees that it shall deliver its original Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.
The authority of the Lead Securitization Note Holder to sell any Non-Lead Securitization Note, and the obligations of any other Note Holder to execute and deliver instruments or deliver the related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization.
(b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization
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Note Holder (unless it is the same Person as, or is an Affiliate of, the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein
(c) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Lead Securitization Note Holder (or its related Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Controlling Class Representative under the Lead Securitization Servicing Agreement due to the expiration of the related “Subordinate Control Period” (as defined under the Note A-1 PSA) or the “Collective Consultation Period” (as defined under the Note A-1 PSA)) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Controlling Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).
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In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to annual meetings (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.
(d) If any Note is included as an asset of a REMIC within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC related provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. All costs and expenses of compliance with this Section 5(d), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by all of the Note Holders collectively, each contributing on a pro rata and pari passu basis according to the Percentage Interest represented by each Note.
Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to any other Note Holder be reduced to offset or make-up any such payment or deficit.
Section 6. Rights of the Controlling Note Holder.
(a) The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder
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shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. Any Servicer acting on behalf of the Lead Securitization Note Holder shall not be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified the Servicer or Trustee of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides any Servicer or Trustee with written confirmation of its acceptance of such appointment, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers). The Controlling Note Holder shall promptly deliver such information to any Servicer. None of the Servicers, Trust Advisor and Trustee shall be required to recognize any person as a Controlling Note Holder Representative until they receive such information from the Controlling Note Holder. The Controlling Note Holder agrees to inform each such Servicer or Trustee of the then-current Controlling Note Holder Representative.
Neither the Controlling Note Holder Representative nor the Controlling Note Holder will have any liability to any other Note Holder or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over any other Note Holder, and that the Controlling Note Holder Representative and the Controlling Note Holder may have special relationships and interests that conflict with the interests of another Note Holder and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or
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having given any consent or having failed to give any consent, solely in the interests of any Note Holder.
Each Non-Controlling Note Holder shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon.
Each Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in the first paragraph of this Section 6(a) (except those contained in the last sentence thereof) and the second paragraph of this Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.
For so long as Note A-1 is included in the Note A-1 Securitization, the “Controlling Class Representative” under the Note A-1 PSA shall be the Controlling Note Holder Representative.
(b) Reserved.
Section 7. Appointment of Special Servicer. The Controlling Note Holder (or its Controlling Note Holder Representative) shall have the right (subject to the terms, conditions and limitations in the Lead Securitization Servicing Agreement) at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to each other Note Holder, the Master Servicer, the then existing Special Servicer and other parties to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Communication or a Rating Agency Confirmation, but only if required by the terms of the Lead Securitization Servicing Agreement), if any. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the
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Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects any Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges and agrees that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Each Non-Controlling Note Holder shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Lead Securitization’s “collection account”.
Section 8. Payment Procedure.
(a) The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf), in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the “Collection Account” and/or “Serviced Pari Passu Companion Loan Custodial Account” (or the related analogous term and each as defined in the Lead Securitization Servicing Agreement) pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) shall deposit such amounts to the applicable account within one (1) Business Day after receipt of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower) provided, that to the extent that any payment is received after 2:00 p.m. (Eastern time) on any given Business Day, the Master Servicer is required to use commercially reasonable efforts to deposit such payment into the applicable account within one (1) Business Day of receipt of such payment, but, in any event , the Master Servicer is required to deposit such payments into the applicable account within two (2) Business Days of receipt of such payment).
(b) If the Lead Securitization Note Holder (or the Servicer acting on its behalf) determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Lead Securitization Note Holder, a Non-Lead Securitization Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall not be required to distribute any portion thereof to any Non-Lead Securitization Note Holder and each such Non-Lead Securitization Note Holder shall promptly on demand by the Lead Securitization Note Holder repay to the Lead Securitization Note Holder (or the Servicer acting on its behalf) any portion thereof that the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall have theretofore distributed to such Non-Lead Securitization Note Holder, together with
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interest thereon at such rate, if any, as the Lead Securitization Note Holder (or the Servicer acting on its behalf) shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.
(c) If, for any reason, the Lead Securitization Note Holder (or the Servicer acting on its behalf) makes any payment to any Non-Lead Securitization Note Holder before the Lead Securitization Note Holder (or the Servicer acting on its behalf) has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder (or the Servicer acting on its behalf) does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s (or the Servicer acting on its behalf) request, promptly return that payment to the Lead Securitization Note Holder (or the Servicer acting on its behalf).
(d) Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from any Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. Such Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.
Section 9. Limitation on Liability of the Note Holders. No Note Holder shall have any liability to any other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder; provided, that, notwithstanding any of the foregoing to the contrary, each Servicer will nevertheless be subject to the obligations and standards (including the Servicing Standard) set forth in the related Securitization Servicing Agreement.
The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of any Non-Lead Securitization Note Holders and that the Lead Securitization Note Holder (including any Servicer and the Trustee on its behalf) shall have no liability whatsoever to any Non-Lead Securitization Note Holders in connection with the Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard.
Section 10. Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder (or the Servicer on its behalf) has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause
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any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not the Non-Lead Securitization Note Holders, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Non-Lead Securitization Note Holders in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note Holders hereby agree that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard. and the terms of this Agreement.
Section 11. Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.
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Section 12. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. The Lead Securitization Note Holder shall have no obligation whatsoever to offer to any Non-Lead Securitization Note Holders the opportunity to purchase a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates and if the Lead Securitization Note Holder chooses to offer to any Non-Lead Securitization Note Holders the opportunity to purchase a participation interest in any future mortgage loans originated by the Lead Securitization Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as the Lead Securitization Note Holder chooses, in its sole and absolute discretion. No Non-Lead Securitization Note Holders shall have any obligation whatsoever to purchase from the Lead Securitization Note Holder a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates.
Section 13. Other Business Activities of the Note Holders. Each Note Holder acknowledges that each other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or Affiliate thereof or any entity any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower Affiliate thereof or any entity (each, a “Mortgage Loan Borrower Related Party”), and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.
Section 14. Sale of the Notes.
(a) Each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its respective Note (or a participation interest in such Note) (a “Transfer”) except to a Qualified Institutional Lender in accordance with the terms of this Agreement. Promptly after any such Transfer, any non-transferring Note Holders shall be provided with (x) a representation from each transferee or the transferring Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer in accordance with the immediately following sentence or a Transfer by a Note Holder to an entity that constitutes a Qualified Institutional Lender pursuant to clause (c)(iii) of the definition thereof) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first obtain the consent of each non-transferring Note Holder and, if any such non-transferring Note Holder’s Note is held in a Securitization Trust, obtain a Rating Agency Confirmation from each of the applicable engaged Rating Agencies for such Securitization Trust. Notwithstanding the foregoing, without each non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if any such non-transferring Note Holder’s Note is held in a Securitization Trust, without a Rating Agency from each of the applicable engaged Rating Agencies for such Securitization, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be
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absolutely null and void and shall vest no rights in the purported transferee. The transferring Note Holder agrees that it shall pay the expenses of any non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer, the Trustee and any Controlling Note Holder or Controlling Note Holder Representative) and all expenses relating to the confirmation from the Rating Agencies in connection with any such Transfer. Notwithstanding the foregoing, unless the related Note is included in a Securitization, each Note Holder shall have the right, without the need to obtain the consent of any other Note Holder, the Rating Agencies or any other Person, to Transfer 49% or less (in the aggregate) of its beneficial interest in a Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of Note A-1 together with Note A-2, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.
For the purposes of this Agreement, if any Rating Agency shall, in writing, waive, decline or refuse to review or otherwise engage any request for a Rating Agency Confirmation, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that such confirmation by such Rating Agency (only) be obtained for purposes of this Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for such confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for such Rating Agency Confirmation hereunder and the condition for such Rating Agency Confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.
(b) In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.
(c) Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) which has extended a credit or repurchase facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each applicable Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified
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Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to each other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to each other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder and accept any cure thereof by such Note Pledgee which such pledging Note Holder has the right (but not the obligation) to effect hereunder, as if such cure were made by such pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to each other Note Holder and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases each other Note Holder and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.
(d) Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Institutional Lender provides financing to a Note Holder
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then such Note Holder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Institutional Lender, if the following conditions are satisfied:
(i) the loan (the “Conduit Inventory Loan”) made by the Conduit to such Note Holder to finance the acquisition and holding of its Note requires a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;
(ii) the Conduit Credit Enhancer is a Qualified Institutional Lender;
(iii) such Note Holder pledges (or sells, transfers or assigns as part of a repurchase facility) its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;
(iv) the Conduit Credit Enhancer and the Conduit agree that, if such Note Holder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Note Holder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Note Holder’s Note to the Conduit Credit Enhancer; and
(v) unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.
Section 15. Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of each other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.
In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such
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assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and each other Note Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.
Section 16. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 17. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
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Section 18. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first receiving a written confirmation from each Rating Agency that such amendment or modification will not result in a qualification, withdrawal or downgrade of its then-current ratings of the securities issued in connection with a Securitization; provided that no such confirmation from the Rating Agencies shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement, or (ii) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement.
Section 19. Statement of Intent. The Agent and each Noteholder intend that the Notes be classified and maintained as a grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code that is a fixed investment trust within the meaning of Treasury Regulation §301.7701-4(c), and the parties will not take any action inconsistent with such classification. It is neither the purpose nor the intent of this Agreement to create a partnership, joint venture, “taxable mortgage pool” or association taxable as a corporation among the parties.
Section 20. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer and Special Servicer and any Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder. For the avoidance of doubt, the representations in Section 11 shall not be binding upon any Securitization Trust.
Section 21. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 22. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 23. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
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Section 24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.
Section 25. Withholding Taxes. (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to any Non-Lead Securitization Note Holders with respect to the Mortgage Loan as a result of such Non-Lead Securitization Note Holder constituting a Non-Exempt Person, such Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to such Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish such Non-Lead Securitization Note Holder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.
(b) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made to such Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.
(c) Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) represents (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Note
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Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if a Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments), Form W-8BEN or Form W-8BEN-E, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any payment hereunder with respect to the Non-Lead Securitization Note or otherwise until the holder of such Note shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.
Section 26. Custody of Mortgage Loan Documents. Prior to the Note A-1 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-2) will be held by the Initial Agent on behalf of the registered holders of the Notes. On and after the Note A-1 Securitization Date but prior to the Note A-2 Securitization Date, the originals of all of the Mortgage Loan Documents (other than Note A-2) shall be held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-1 PSA, on behalf of the registered holders of the Notes. On and after the Note A-2 Securitization Date, Note A-2 shall be held in the name of the trustee (and held by a duly appointed custodian therefor) under the Note A-2 PSA, on behalf of the Note A-2 Holder.
Section 27. Cooperation in Securitization.
(a) Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, at the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall use reasonable efforts, at the Lead Securitization Note Holder’s expense, to satisfy, and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which the Lead Securitization Note Holder customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with the Lead Securitization Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect the Securitization; provided, however, that either in connection with the Lead Securitization or otherwise at any time prior to the Lead Securitization, no Non-Lead Securitization Note Holder agrees to be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Lead Securitization Note Holder or (ii) materially increase such Non-Lead Securitization Note Holders’ obligations
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or materially decrease such Non-Lead Securitization Note Holders’ rights, remedies or protections. In connection with the Lead Securitization, each Non-Lead Securitization Note Holder shall provide for inclusion in any disclosure document relating to the Lead Securitization such information concerning such Non-Lead Securitization Note Holder and its Non-Lead Securitization Note as the Lead Securitization Note Holder reasonably determines to be necessary or appropriate, and such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and Lead Securitization Note Holder in connection with the Lead Securitization (including, without limitation, reasonably cooperating with the Lead Securitization Noteholder (without any obligation to make additional representations and warranties) to enable the Lead Securitization Noteholder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and the Lead Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Non-Lead Securitization Note Holder and its Non-Lead Securitization Note in any Securitization document. Each Note Holder acknowledges that the information provided by it to the Lead Securitization Note Holder may be incorporated into the offering documents for the Lead Securitization. The Lead Securitization Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, any Note Holder. The Lead Securitization Note Holder shall reasonably cooperate with the Non-Lead Securitization Note Holders by providing all information reasonably requested that is in the Lead Securitization Note Holder’s possession in connection with such Non-Lead Securitization Note Holders’ preparation of disclosure materials in connection with a Securitization.
Upon request, the Lead Securitization Note Holder shall deliver to the Non-Lead Securitization Note Holders drafts of the preliminary and final Lead Securitization offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the Lead Securitization Servicing Agreement and provide reasonable opportunity to review and comment on such documents.
Section 28. Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.
Section 29. Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.
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Section 30. Certain Matters Affecting the Agent.
(a) The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;
(b) The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;
(c) The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Note Holder pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;
(d) The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 15;
(f) The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder; and
(g) The Agent represents and warrants that it is a Qualified Institutional Lender.
Section 31. Reserved.
Section 32. Resignation or Termination of Agent. The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. BANA, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of the Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of BANA without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement, and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.
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Section 33. Resizing. Notwithstanding any other provision of this Agreement, for so long as BANA or an affiliate thereof (a “Original Entity”) is the owner of each Non-Lead Securitization Note (each an “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of an Owned Note to such New Notes; or severing an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of an Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, (iv) the Original Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes does not violate the Servicing Standard. If the Lead Securitization Note Holder so requests, the Original Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of each other Note. In connection with the foregoing (provided the conditions set forth in clauses (i) through (v) above are satisfied, with respect to clauses (i) through (iv), as certified by the Original Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal. If more than one New Note is created hereunder, for purposes of exercising the rights of a Controlling Note Holder or Non-Controlling Note Holder hereunder, the “Controlling Note Holder” or “Non-Controlling Note Holder”, as applicable, shall be as provided in the definitions of such terms in this Agreement; provided that the Controlling Note Holder shall be entitled to designate any New Note created from the existing Controlling Note to be a Non-Controlling Note hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Initial Note Holders have caused this Agreement to be duly executed as of the day and year first above written.
BANK OF AMERICA, N.A., as Initial Note A-1 Holder | |||
By: | /s/ Steven Wasser | ||
Name: | Steven Wasser | ||
Title: | Managing Director |
BANK OF AMERICA, N.A., as Initial Note A-2 Holder | |||
By: | /s/ Steven Wasser | ||
Name: | Steven Wasser | ||
Title: | Managing Director |
Aviare Place Apartments Agreement Between Note Holders
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Description of Mortgage Loan
Mortgage Loan Borrower(s): |
Midland Aviare Place, L.P. |
Date of Mortgage Loan: |
October 31, 2014 |
Date of Original Note: |
October 31, 2014 |
Date of the Notes: |
June 4, 2015 |
Original Principal Amount of Mortgage Loan: |
$26,322,000 |
Replacement, Amended and Restated Promissory Note A-1 Principal Balance: |
$20,850,000 |
Replacement, Amended and Restated Promissory Note A-2 Principal Balance: |
$5,472,000 |
Location of Mortgaged Property: |
Midland, Texas |
Initial Maturity Date: |
November 1, 2024 |
A-1 |
EXHIBIT B
1. Initial Note A-1 Holder:
(Prior to Securitization of Note A-1):
Bank of America, N.A.
NC1-027-15-01
214 North Tryon Street
Charlotte, North Carolina 28255
Attention: Steven L. Wasser
Email: steve.l.wasser@baml.com
with a copy to:
W. Todd Stillerman, Esq.
Bank of America Corporation
NC1-027-20-05
214 North Tryon Street, 20th Floor
Charlotte, North Carolina 28255
Email: william.stillerman@bankofamerica.com
Following Securitization of Note A-1 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
2. Initial Note A-2 Holder:
Bank of America, N.A.
NC1-027-15-01
214 North Tryon Street
Charlotte, North Carolina 28255
Attention: Steven L. Wasser
Email: steve.l.wasser@baml.com
with a copy to:
Bank of America, N.A.
214 North Tryon Street, 20th Floor
NC1-027-20-05
Charlotte, North Carolina 28255
Attention: W. Todd Stillerman, Esq.
Email: william.stillerman@bankofamerica.com
Following Securitization of Note A-2 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
B-1 |
EXHIBIT C
PERMITTED FUND MANAGERS
1. | Alliance Bernstein |
2. | Annaly Capital Management |
3. | Apollo Real Estate Advisors |
4. | Archon Capital, L.P. |
5. | AREA Property Partners |
6. | Artemis Real Estate Partners |
7. | BlackRock, Inc. |
8. | Capital Trust, Inc. |
9. | Clarion Partners |
10. | Colony Capital, LLC / Colony Financial, Inc. |
11. | CreXus Investment Corporation/Annaly Capital Management |
12. | DLJ Real Estate Capital Partners |
13. | Dune Real Estate Partners |
14. | Eightfold Real Estate Capital, L.P. |
15. | Five Mile Capital Partners |
16. | Fortress Investment Group, LLC |
17. | Garrison Investment Group |
18. | Goldman, Sachs & Co. |
19. | H/2 Capital Partners LLC |
20. | Hudson Advisors |
21. | Investcorp International |
22. | iStar Financial Inc. |
23. | J.P. Morgan Investment Management Inc. |
24. | JER Partners |
25. | Lend-Lease Real Estate Investments |
26. | Libermax Capital LLC |
27. | LoanCore Capital |
28. | Lone Star Funds |
29. | Lowe Enterprises |
30. | Normandy Real Estate Partners |
31. | One William Street Capital Management, L.P. |
32. | Och-Ziff Capital Management Group/ OZ Management, L.P./ OZ Management II., L.P. |
33. | Praedium Group |
34. | Raith Capital Partners, LLC |
35. | Rialto Capital Management, LLC |
36. | Rialto Capital Partners LLC |
37. | Rimrock Capital Management LLC |
38. | Rockpoint Group |
39. | Rockwood |
40. | RREEF Funds |
41. | Square Mile Capital Management |
42. | Starwood Capital Group/Starwood Financial Trust |
43. | The Blackstone Group |
44. | The Carlyle Group |
45. | Torchlight Investors |
46. | Walton Street Capital, L.L.C. |
47. | Westbrook Partners |
48. | WestRiver Capital |
49. | Wheelock Street Capital |
50. | Whitehall Street Real Estate Fund, L.P. |
C-1 |
Exhibit 99.1
Execution Version
MORTGAGE LOAN PURCHASE AGREEMENT
between
BANK
OF AMERICA, NATIONAL ASSOCIATION
as Seller
and
BANC
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
as Purchaser
Dated September 14, 2015
TABLE OF CONTENTS
Page | ||
1. | AGREEMENT TO PURCHASE | 2 |
2. | CONVEYANCE OF MORTGAGE LOANS | 2 |
3. | EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW | 11 |
4. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER | 12 |
5. | REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER | 17 |
6. | CLOSING | 23 |
7. | CLOSING DOCUMENTS | 24 |
8. | COSTS | 28 |
9. | NOTICES | 28 |
10. | SEVERABILITY OF PROVISIONS | 28 |
11. | FURTHER ASSURANCES | 28 |
12. | SURVIVAL | 29 |
13. | GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION | 29 |
14. | BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT | 30 |
15. | MISCELLANEOUS | 30 |
16. | ENTIRE AGREEMENT | 30 |
Exhibit 1 | Mortgage Loan Schedule |
Exhibit 2 | Mortgage Loan Representations and Warranties |
Schedule 2-A Exceptions to Representations and Warranties Regarding Individual Mortgage Loans | |
Schedule 2-B | List of Cross-Collateralized or Cross-Defaulted Mortgage Loans |
Exhibit 3 | Form of Bill of Sale |
Exhibit 4 | Form of Limited Power of Attorney |
Schedule A | List of Mortgagors that are Third Party Beneficiaries |
-i- |
Index of Defined Terms
15Ga-1 Notice | 21 | Mortgage Loan Schedule | 2 | |
Accountant’s Due Diligence Report | 15 | Mortgage Loans | 1 | |
Affected Loan(s) | 19 | Mortgage Note | 1 | |
Agreement | 1 | Mortgagor | 1 | |
Bank of America Lender Successor Borrower Right | 23 | MOU | 28 | |
Bill of Sale | 2 | Officer’s Certificate | 7 | |
Certificate Administrator | 1 | Other Mortgage Loans | 1 | |
Certificate Purchase Agreement | 1 | Pooling and Servicing Agreement | 1 | |
Certificates | 1 | Preliminary PPM | 1 | |
Closing Date | 2 | Private Certificates | 1 | |
Collateral Information | 11 | Prospectus Supplement | 1 | |
Crossed Mortgage Loans | 19 | Public Certificates | 1 | |
Cure Request | 18 | Purchaser | 1 | |
Custodian | 1 | Repurchase Request | 21 | |
Defective Mortgage Loan | 19 | Seller | 1 | |
Dispute | 21 | Seller Reporting Information | 14 | |
Final Judicial Determination | 22 | Seller’s Information | 14 | |
Final PPM | 1 | Special Servicer | 1 | |
Indemnification Agreement | 14 | Trust | 1 | |
Initial Purchasers | 1 | Trust Advisor | 1 | |
Master Servicer | 1 | Trustee | 1 | |
Material Breach | 18 | UCC | 5 | |
Material Document Defect | 18 | Underwriters | 1 | |
Mortgage File | 3 | Underwriting Agreement | 1 |
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Mortgage Loan Purchase Agreement (this “Agreement”), dated September 14, 2015, between Bank of America, National Association (“Seller”) and Banc of America Merrill Lynch Commercial Mortgage Inc. (“Purchaser”).
Seller agrees to sell, and Purchaser agrees to purchase, certain mortgage loans listed on Exhibit 1 hereto (the “Mortgage Loans”), each of which is evidenced by one or more related notes or other evidence of indebtedness (each a “Mortgage Note”) evidencing the indebtedness of the related obligor under the related Mortgage Loan (each a “Mortgagor”). Purchaser will convey the Mortgage Loans to a trust (the “Trust”) created pursuant to a Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), to be dated as of September 1, 2015, between Purchaser, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the “Master Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, LNR Partners, LLC, as special servicer (the “Special Servicer”), and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”). In exchange for the Mortgage Loans and certain other mortgage loans to be purchased by Purchaser (collectively the “Other Mortgage Loans”), the Trust will issue to the Depositor pass-through certificates to be known as Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”). The Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D Certificates (the “Public Certificates”) will be sold by Purchaser to Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, as underwriters (in such capacities, the “Underwriters”), pursuant to an Underwriting Agreement, between Purchaser, Bank of America, National Association and the Underwriters, dated as of the date hereof (the “Underwriting Agreement”), and the Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G, Class H, Class V and Class R Certificates (the “Private Certificates”) will be sold by Purchaser to Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC, as initial purchasers (in such capacities, the “Initial Purchasers”), pursuant to a Certificate Purchase Agreement, between Purchaser, Bank of America, National Association and the Initial Purchasers, dated as of the date hereof (the “Certificate Purchase Agreement”). The Underwriters will offer the Public Certificates for sale publicly pursuant to a Prospectus dated September 14, 2015, as supplemented by a Prospectus Supplement dated the date hereof (together, the “Prospectus Supplement”), and the Initial Purchasers will offer the Private Certificates for sale in transactions exempt from the registration requirements of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated the date hereof (the “Final PPM”) and a preliminary version thereof dated September 8, 2015 (as supplemented by the preliminary private placement memorandum supplement, dated September 11, 2015, collectively, the “Preliminary PPM”).
In consideration of the mutual agreements contained herein, Seller and Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans identified on the schedule (the “Mortgage Loan Schedule”) annexed hereto as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms hereof. The Cut-off Date with respect to the Mortgage Loans is September 1, 2015; provided, that for purposes of determining amounts allocable to the related Seller, with respect to any Mortgage Loans not having due dates on the first day of each month, the scheduled payments of principal and/or interest due thereon during September 2015 are deemed to have been due and received on September 1, 2015 rather than the actual date of receipt. The Mortgage Loans will have an aggregate principal balance as of the close of business on the Cut-off Date, after giving effect to any payments during or prior to September 2015, whether or not received, of $123,157,000. The sale of the Mortgage Loans shall take place on September 24, 2015 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). The purchase price to be paid by Purchaser for the Mortgage Loans shall equal the amount to be set forth as such purchase price in the Bill of Sale (substantially in the form of Exhibit 3 hereto), to be entered into between the parties to this Agreement in connection with this Agreement and the issuance of the Certificates (the “Bill of Sale”). The purchase price shall be paid to Seller by wire transfer in immediately available funds on the Closing Date.
1.2 On the Closing Date, Purchaser will assign to the Trustee pursuant to the Pooling and Servicing Agreement all of its right, title and interest in and to the Mortgage Loans and its rights under this Agreement (to the extent set forth in Section 14 hereof), and the Trustee shall succeed to such right, title and interest in and to the Mortgage Loans and Purchaser’s rights under this Agreement (to the extent set forth in Section 14 hereof).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the consideration referred to in Section 1 hereof and the satisfaction of the conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set over and otherwise convey to Purchaser, without recourse, except as specifically provided herein all the right, title and interest of Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Closing Date, shall conform to the requirements of this Agreement and the Pooling and Servicing Agreement. In connection with such transfer and assignment, Seller shall deliver to the Trustee (or the Custodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as Exhibit 4 in favor of the Custodian (on behalf of the Trustee) and the Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of
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the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one-hundred eighty (180) days following the delivery of notice of such absence to Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date are to be held by the Trustee (or the Custodian on its behalf) in escrow on behalf of Seller at all times prior to the Closing Date. The Mortgage Files shall be released from escrow upon closing of the sale of the Mortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the
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Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan));
2.2.5 Originals of all intervening assignments of Mortgage, if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment
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of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, constituting additional security for the repayment of such Mortgage Loan;
2.2.8 The original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy or, if such Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one-hundred eighty (180) days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one-hundred eighty (180) days of the Closing Date;
2.2.9 (A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement
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or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. In addition, a copy of any ground lease, space lease or air rights lease shall be delivered to the Master Servicer within thirty (30) days of the Closing Date.
“Officer’s Certificate” shall mean a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, any Senior Vice President, any Vice President, any Assistant Vice President, any Treasurer or any Assistant Treasurer.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, (A) the preceding document delivery requirements shall be met by the delivery by the Depositor of copies of the documents specified above (other than the Mortgage Notes (and all intervening endorsements) respectively evidencing such Non-Serviced Mortgage Loan with respect to which the originals shall be required), including a copy of the Non-Serviced Mortgage Loan Mortgage, and (B) the requirement to deliver any of the preceding documents in the name of the Trustee shall be met by the delivery of such documents in the name of the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred to in Sections 2.2.4 and 2.2.6(ii) hereof may be in the form of a single instrument assigning the Mortgage and the Assignment of Leases to the extent permitted by applicable law. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording or filing of multiple assignments of mortgages, assignments of leases (to the extent separate from the mortgages) and assignments of UCC financing statements, Seller shall execute, in accordance with Section 2.6 hereof, the assignments of mortgages, the assignments of leases (to the extent separate from the mortgages) and the assignments of UCC financing statements relating to the Mortgage Loans naming the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the fact that such assignments of mortgages, assignments of leases (to the extent separate from the assignments of mortgages) and assignments of UCC financing statements shall name the Trustee on behalf of the Certificateholders as the assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall for all purposes be deemed to have been transferred from Seller to Purchaser and from Purchaser to the Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3, 2.2.5 or 2.2.6 hereof (exclusive of Section 2.2.6(ii) hereof), with evidence of recording thereon, solely because of a delay caused by the public recording office where such document or instrument has been delivered for recordation within the forty-five (45) day period following the Closing Date, but Seller delivers a photocopy thereof (certified by the appropriate county recorder’s office to be a true and complete copy of the original thereof submitted for recording), to the Trustee within such forty-five (45) day period, Seller shall then deliver within ninety (90) days after the Closing Date the recorded document (or within such longer period after the Closing Date as the Trustee may consent to, which consent shall not be unreasonably withheld so long as Seller is, as certified in writing to the Trustee no less often than monthly, in good faith attempting to obtain from the appropriate county recorder’s office such original or photocopy).
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2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled to all scheduled payments of principal due on the Mortgage Loans after the Cut-off Date, all other payments of principal collected after the Cut-off Date (other than scheduled payments of principal due on or before the Cut-off Date), and all payments of interest on the Mortgage Loans allocable to the period commencing on the Cut-off Date. All scheduled payments of principal and interest due on or before the Cut-off Date and collected after the Cut-off Date shall belong to, and shall promptly be remitted to, Seller.
2.6 Within forty-five (45) days following the Closing Date, other than with respect to any Non-Serviced Mortgage Loan, Seller shall deliver and Purchaser, the Custodian (on behalf of the Trustee) or the agents of either may submit or cause to be submitted for recordation at the expense of Seller, in the appropriate public office for real property records, each assignment referred to in clauses 2.2.4 and 2.2.6(ii) above. Within ninety (90) days following the Closing Date, other than with respect to any Non-Serviced Mortgage Loan, Seller shall deliver and Purchaser, the Custodian (on behalf of the Trustee) or the agents of either may submit or cause to be submitted for filing, at the expense of Seller, in the appropriate public office for UCC financing statements, the assignment referred to in clause 2.2.9(B). Each such assignment shall reflect that it should be returned by the public recording office to the Custodian (on behalf of the Trustee) following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the Seller shall obtain therefrom a certified copy of the recorded original and forward such copy to the Custodian (on behalf of the Trustee) and the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, Seller shall prepare a substitute therefor or cure such defect, and Seller shall, at its own expense (except in the case of a document or instrument that is lost by the Custodian), record or file, as the case may be, and deliver such document or instrument in accordance with this Section 2.
2.7 Documents that are in the possession of Seller, its agents or its subcontractors that relate to the Mortgage Loans and that are not required to be delivered to the Trustee (or the Custodian on its behalf) shall be shipped by Seller to or at the direction of the Master Servicer, on behalf of Purchaser, on or prior to the 45th day after the Closing Date, in accordance with Section 2.1(d) of the Pooling and Servicing Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer shall include copies of the mortgage documents listed in the definition of “Mortgage File” relating to the applicable Mortgage Loan and shall also include, to the extent required to be (and actually) delivered to Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: any guaranty/indemnity agreement, any insurance policies or certificates, as applicable, any property inspection reports, any financial statements on the property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary and financial information on the Borrower/sponsor and any guarantors. Notwithstanding the foregoing, Seller shall not be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if any such items are received, they shall be
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returned and any copies thereof destroyed). Delivery of any of the foregoing documents to any sub-servicer shall be deemed a delivery to the Master Servicer and satisfy Seller’s obligations under this subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and the other contents of the related Mortgage File shall be vested in Purchaser and its assigns, and the ownership of all records and documents with respect to the related Mortgage Loan prepared by or that come into the possession of Seller shall immediately vest in Purchaser and its assigns, and shall be delivered promptly by Seller to the Trustee (or the Custodian on its behalf) or the Master Servicer as set forth herein, subject to the requirements of the Pooling and Servicing Agreement. Seller’s and Purchaser’s records shall reflect the transfer of each Mortgage Loan from Seller to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the conveyance of the Mortgage Loans and related property to Purchaser by Seller as provided in this Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and related property. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans and related property by Seller to Purchaser to secure a debt or other obligation of Seller. However, if, notwithstanding the intent of the parties, the Mortgage Loans or any related property are held to be the property of Seller, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans or any related property, then:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be deemed to be a grant by Seller to Purchaser of, and Seller hereby grants to Purchaser, a security interest in all of Seller’s right, title, and interest, whether now owned or existing or hereafter acquired or arising, in, to and under:
A. All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the following property: the Mortgage Loans identified on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, all distributions with respect thereto payable after the Cut-off Date, all substitute or replacement Mortgage Loans and all distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (A) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
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C. All cash and non-cash proceeds of the collateral described in clauses (A) and (B) above.
2.11 The possession by Purchaser or its designee (including, with respect to any Non-Serviced Mortgage Loan, the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan) of the Mortgage Notes, the Mortgages, and such other goods, letters of credit, advices of credit, instruments, money, documents, chattel paper or certificated securities shall be deemed to be possession by the secured party or possession by a purchaser for purposes of perfecting the security interest pursuant to the UCC (including, without limitation, Section 9-313 thereof) as in force in the relevant jurisdiction. Notwithstanding the foregoing, Seller makes no representation or warranty as to the perfection of any such security interest.
2.12 Notifications to Persons holding such property, and acknowledgments, receipts, or confirmations from persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or Persons holding for, Purchaser or its designee, as applicable, for the purpose of perfecting such security interest under applicable law.
2.13 The Seller hereby agrees to provide the Purchaser with prompt notice of any information it receives which indicates that the transfer of each Mortgage Loan from the Seller to the Purchaser may not be treated as a sale. The Seller shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. In such case, the Seller hereby authorizes the Master Servicer, the Trustee and the Custodian to file all filings necessary to maintain the effectiveness of any original filings necessary under the UCC as in effect in any jurisdiction to perfect such security interest in such property. In connection herewith, the Purchaser shall have all of the rights and remedies of a secured party and creditor under the UCC as in force in the relevant jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject to Section 2.1 hereof, Purchaser shall not be required to purchase any Mortgage Loan as to which any Mortgage Note (endorsed as described in clause 2.2.1 hereof) required to be delivered to the Trustee (or the Custodian on its behalf) or the Master Servicer pursuant to this Section 2 on or before the Closing Date is not so delivered, or is not properly executed or is defective on its face, and Purchaser’s acceptance of the related Mortgage Loan on the Closing Date shall in no way constitute a waiver of such omission or defect or of Purchaser’s or its successors’ and assigns’ rights in respect thereof pursuant to Section 5 hereof.
2.15 The Seller shall not (i) re-acquire the Mortgage Loans or any portion thereof or interest therein (other than as required in order to comply with its obligations under this Agreement) or (ii) acquire any Certificates or interests therein in amounts that may cause the Seller to recognize the Mortgage Loans (or any portion thereof) as an asset of such Seller in its books and records. The Seller has internal accounting and finance controls in place to, in each case (a) monitor any such re-acquisition of the Mortgage Loans or acquisition of the Certificates
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and (b) prevent any such recognition of the Mortgage Loans (or any portion thereof) as an asset of the Seller. In the event the Seller is required to recognize the Mortgage Loans (or any portion thereof) as an asset of the Seller for tax and/or accounting purposes, the Seller shall take immediate corrective action, such that the Mortgage Loans shall not be treated as an asset of the Seller for tax or accounting purposes.
2.16 The Seller (solely in respect of the Franchise Mortgage Loans it is selling to the Depositor) or its designee shall, within thirty (30) days of the Closing Date (or any shorter period if required by the applicable comfort letter) and with a copy to the Master Servicer, notify the related franchisor in writing that such Franchise Mortgage Loan has been transferred to the Trust and request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter).
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a diskette acceptable to Purchaser that contains such information about the Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to Purchaser on or before the Closing Date investor files (collectively the “Collateral Information”) with respect to the assets proposed to be included in the Trust Fund and made available at Purchaser’s headquarters in New York, and (iii) otherwise cooperate fully with Purchaser in its examination of the credit files, underwriting documentation and Mortgage Files for the Mortgage Loans and its due diligence review of the Mortgage Loans. The fact that Purchaser has conducted or has failed to conduct any partial or complete examination of the credit files, underwriting documentation or Mortgage Files for the Mortgage Loans shall not affect the right of Purchaser or the Trust to cause Seller to cure any Material Document Defect or Material Breach (each as defined below), or to repurchase or replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of Purchaser and any designees thereof to examine and audit all books, records and files pertaining to the Mortgage Loans, Seller’s underwriting procedures and Seller’s ability to perform or observe all of the terms, covenants and conditions of this Agreement. Such examinations and audits shall take place upon reasonable prior advance notice at one or more offices of Seller during normal business hours and shall not be conducted in a manner that is disruptive to Seller’s normal business operations. In the course of such examinations and audits, Seller will make available to such representatives of Purchaser and any designees thereof reasonably adequate facilities, as well as the assistance of a sufficient number of knowledgeable and responsible individuals who are familiar with the Mortgage Loans and the terms of this Agreement, and Seller shall cooperate fully with any such examination and audit in all material respects. On or prior to the Closing Date, Seller shall provide Purchaser with all material information regarding Seller’s financial condition and access to knowledgeable financial or accounting officers for the purpose of answering questions with respect to Seller’s financial condition, financial statements as provided to Purchaser or other developments affecting Seller’s ability to consummate the transactions contemplated hereby or otherwise affecting Seller in any material respect. Within forty-five (45) days after the Closing Date, Seller shall provide the Master Servicer with any additional information identified by the Master Servicer as necessary to complete the CREFC® Property File, to the extent that such information is available to Seller.
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3.3 Purchaser may exercise any of its rights hereunder through one or more designees or agents, provided Purchaser has provided Seller with prior notice of the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and, to the extent required pursuant to the terms of the Pooling and Servicing Agreement, the Mortgage Loans that has been delivered into Purchaser’s possession and that is not otherwise publicly available; provided, that such information shall not be kept confidential (and the right to require confidentiality under any confidentiality agreement is hereby waived) to the extent Purchaser deems such information necessary and appropriate or required to be included in the Preliminary PPM, the Final PPM, the Prospectus Supplement, the Free Writing Prospectus (as defined in the Pooling and Servicing Agreement) or any other disclosure document relating to the Certificates or Purchaser is required by law or court order to disclose such information. If Purchaser is required or otherwise deems it necessary and appropriate to disclose in the Free Writing Prospectus, the Preliminary PPM, the Final PPM, the Prospectus Supplement or any other disclosure document relating to the Certificates confidential information regarding Seller as described in the preceding sentence, Purchaser shall provide to Seller a copy of the proposed form of such disclosure prior to making such disclosure and Seller shall promptly, and in any event within two (2) Business Days, notify Purchaser of any inaccuracies therein, in which case Purchaser shall modify such form in a manner that corrects such inaccuracies. If Purchaser is required by law or court order to disclose confidential information regarding Seller as described in the second preceding sentence, Purchaser shall notify Seller and cooperate in Seller’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded such information and, if in the absence of a protective order or such assurance, Purchaser is compelled as a matter of law to disclose such information, Purchaser shall, prior to making such disclosure, advise and consult with Seller and its counsel as to such disclosure and the nature and wording of such disclosure and Purchaser shall use reasonable efforts to obtain confidential treatment therefor. Notwithstanding the foregoing, if reasonably advised by counsel that Purchaser is required by a regulatory agency or court order to make such disclosure immediately, then Purchaser shall be permitted to make such disclosure without prior review by Seller and shall give Seller prompt notice of such disclosure.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for the benefit of Purchaser and its assigns with respect to each Mortgage Loan as of the date hereof (or as of such other date specifically set forth in the particular representation and warranty) each of the representations and warranties set forth on Exhibit 2 hereto (except as otherwise set forth on Schedule 2-A attached to such Exhibit 2) and hereby further represents, warrants and covenants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a national banking association in good standing under the laws of the United States. Seller has the requisite power and authority and legal right to own the Mortgage Loans and to transfer and convey the Mortgage Loans to Purchaser and has the requisite power and authority to execute and deliver,
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engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and delivered by Seller, and assuming the due authorization, execution and delivery hereof by Purchaser, this Agreement constitutes the valid, legal and binding agreement of Seller, enforceable in accordance with its terms, except as such enforcement may be limited by (A) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other laws relating to or affecting the rights of creditors generally, (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (D) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification from liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law, for the execution, delivery and performance of or compliance by Seller with this Agreement, or the consummation by Seller of any transaction contemplated hereby, other than (A) such qualifications as may be required under state securities or blue sky laws, (B) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with Seller’s sale of the Mortgage Loans to Purchaser, (C) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained and (D) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by Seller under this Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the execution, delivery or performance of this Agreement by Seller, conflicts or will conflict with, results or will result in a breach of, or constitutes or will constitute a default under (A) any term or provision of Seller’s articles of organization or by-laws, (B) any term or provision of any material agreement, contract, instrument or indenture to which Seller is a party or by which it or any of its assets is bound or results in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument, other than pursuant to this Agreement, or (C) after giving effect to the consents or taking of the actions contemplated in Section 4.1.3 hereof, any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over Seller or its assets, except where in any of the instances contemplated by clauses (B) or (C) above, any conflict, breach or default, or creation or imposition of any lien, charge or encumbrance, will not have a material adverse effect on the consummation of the transactions contemplated hereby by Seller or its ability to perform its obligations and duties hereunder or result in any material adverse change in the business, operations, financial condition, properties or assets of Seller, or in any material impairment of the right or ability of Seller to carry on its business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations of, Seller pending or, to Seller’s knowledge, threatened in writing against Seller before any court, administrative agency or other tribunal, the outcome of which could reasonably be expected to
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materially and adversely affect the transfer of the Mortgage Loans to Purchaser or the execution or delivery by, or enforceability against, Seller of this Agreement or have an effect on the financial condition of Seller that would materially and adversely affect the ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this Agreement will effect a transfer by Seller of all of its right, title and interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller’s knowledge, the information in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement as to which the Seller is providing indemnification pursuant to that certain indemnification agreement, dated the date hereof, between Seller, Purchaser, the Underwriters, and the Initial Purchasers (the “Indemnification Agreement”, and such information the “Seller’s Information”) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus Supplement) or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Seller has complied with the disclosure requirements of Regulation AB that arise from its role as “originator” and “sponsor” (or, if Seller was not the originator with respect to any Mortgage Loan, the role of the related originator as “originator”) in connection with the issuance of the Public Certificates. The review described under “Transaction Parties—The Sponsors, Mortgage Loan Sellers and Originators—Bank of America, National Association–Review of Bank of America Mortgage Loans” in the Prospectus Supplement was designed and effected to provide reasonable assurance that the disclosure regarding the Mortgage Loans in the Prospectus Supplement is accurate in all material respects. Notwithstanding anything contained herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no other party.
4.1.8 The Seller hereby agrees to deliver to the Purchaser (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor in such Other Securitization) and to the Certificate Administrator or the Trustee, as applicable, any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information set forth next to the Seller’s name on Schedule IX, Schedule X or Schedule XI of the Pooling and Servicing Agreement (in formatting reasonably appropriate for inclusion in such form) (collectively, “Seller Reporting Information”); provided, that the Seller Reporting Information shall not be exclusive of any additional disclosure items specifically related to the Seller or any related Mortgage Loan originator that may be added to Form 10-K, Form 10-D or Form 8-K subsequent to the date hereof that are required to be included in the Exchange Act reports related to the Trust if the Depositor or the Certificate Administrator provides the Seller with notice of such additional requirements. The Seller shall use its best efforts to deliver proposed disclosure language relating to any such event described under Items 1100(e), 1117, 1119 and/or 1124 of Regulation AB and Item 1.03 to Form 8-K to the Certificate Administrator or the Trustee, as applicable, and the Purchaser within one (1) Business Day and in any event no later than two (2) Business Days of the Seller becoming aware of such event and shall provide disclosure relating to any other Seller Reporting Information required to be disclosed by Seller pursuant to this Section 4.1.8 on Form 8-K, Form 10-D or Form 10-K within two (2) Business Days following the Purchaser’s request for such disclosure language. In
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connection with providing such disclosure language and Seller’s reporting obligations under Item 1119 of Regulation AB, upon reasonable request by Seller, Purchaser shall provide Seller with a list of all parties to the Pooling and Servicing Agreement and any Servicing Function Participant with respect to which it has received notice pursuant to the terms of the Pooling and Servicing Agreement. The obligation of the Seller to provide the above-referenced disclosure materials shall be suspended (for so long as neither the Trust nor, with respect to any Serviced Companion Loan related to a Serviced Pari Passu Mortgage Loan sold to the Trust by the Seller, the trust in the related Other Securitization, is subject to the reporting requirements of the Exchange Act), as to any fiscal year, upon the Certificate Administrator or the Trustee, as applicable, filing the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act as to that fiscal year in accordance with Section 13.8 of the Pooling and Servicing Agreement or the reporting requirements with respect to the Trust under the Exchange Act have otherwise been automatically suspended; provided, that for the avoidance of doubt, the suspension of such information reporting does not apply to Seller Reporting Information that is required to be provided for the fiscal year prior to suspension of the Trust’s reporting requirements under the Exchange Act (including Additional Form 10-K Disclosure required to be disclosed on the Form 10-K related to the fiscal year preceding the year in which the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act was filed). The Purchaser shall provide the Seller with notice (which notice may be sent via facsimile or by email) if the Certificate Administrator or the Trustee, as applicable, does file the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act pursuant to Section 13.8 of the Pooling and Servicing Agreement. The Seller hereby acknowledges that the information to be provided by it pursuant to this Section will be used in the preparation of reports meeting the reporting requirements of the Trust under Section 13(a) and/or Section 15(d) of the Exchange Act.
The Seller hereby further agrees that with respect to any Serviced Companion Loan that is deposited into an Other Securitization, it shall, to the extent required under Section 13.2(c) of the Pooling and Servicing Agreement, (i) pay or cause to be paid the out-of-pocket cost (including any reasonable attorney fees) of providing the information, opinion(s) of counsel, certifications and indemnification agreement(s) to the related Other Depositor by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to Section 13.2(c) of the Pooling and Servicing Agreement and (ii) take all actions reasonably requested of it by the related Other Depositor to enable such Other Securitization to comply with Regulation AB.
4.1.9 Except for the agreed-upon procedures report obtained from the accounting firm engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountant’s Due Diligence Report”), the Seller has not obtained (and, through and including the Closing Date, will not obtain) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Exchange Act (“Rule 15Ga-2”)) in connection with the transactions contemplated herein and in the Prospectus Supplement and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Seller has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act
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in connection with the transactions contemplated herein and in the Prospectus Supplement. The Underwriters and Initial Purchasers are intended third-party beneficiaries of the provisions set forth in this Section 4.1.9.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that the foregoing representations and warranties and those set forth on Exhibit 2 hereto, subject to the exceptions set forth in Schedule 2-A to Exhibit 2, will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue in full force and effect notwithstanding any restrictive or qualified endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware with full power and authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans, to execute and deliver this Agreement and to enter into and consummate all transactions contemplated by this Agreement. Purchaser has duly and validly authorized the execution, delivery and performance of this Agreement and has duly and validly executed and delivered this Agreement. This Agreement, assuming due authorization, execution and delivery by Seller, constitutes the valid, legal and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law, for the execution, delivery and performance of or compliance by Purchaser with this Agreement, or the consummation by Purchaser of any transaction contemplated hereby that has not been obtained or made by Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution, delivery and performance of this Agreement by Purchaser will violate Purchaser’s certificate of incorporation or by-laws or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in a breach of, any material agreement, contract, instrument or indenture to which Purchaser is a party or that may be applicable to Purchaser or its assets.
4.2.5 Purchaser’s execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of any law, rule, writ, injunction, order or decree of any court, or order or regulation of any federal, state or municipal government agency having jurisdiction over Purchaser or its assets, which violation
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could materially and adversely affect the condition (financial or otherwise) or the operation of Purchaser or its assets or could materially and adversely affect its ability to perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of, Purchaser pending or, to Purchaser’s knowledge, threatened against Purchaser before any court, administrative agency or other tribunal, the outcome of which could reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates, the execution, delivery or enforceability of this Agreement or have an effect on the financial condition of Purchaser that would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or other person, other than Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.
4.2.8 Purchaser (A) prepared one or more reports on Form ABS-15G containing the findings and conclusions of the Accountant’s Due Diligence Report and meeting the requirements of Form ABS-15G and Rule 15Ga-2; (B) provided a copy of the final draft of each Form ABS-15G to the Underwriters and the Initial Purchasers at least six (6) Business Days before the pricing date; and (C) furnished each Form ABS-15G to the Commission on EDGAR at least five (5) Business Days before the date hereof as required by Rule 15Ga-2.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that the foregoing representations and warranties will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the Trustee on behalf of the holders of the Certificates, whether directly or by way of Purchaser’s assignment of its rights hereunder to the Trustee, the representations and warranties set forth on Exhibit 2 hereto (each as of the date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be delivered to the Trustee (or the Custodian on its behalf) pursuant to Section 2 hereof is not delivered as and when required, not properly executed or is defective on its face, or if there is a breach of any of the representations and warranties required to be made by Seller regarding the characteristics of the Mortgage Loans and/or the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case (i) the defect or breach materially and adversely affects the interests of the holders of the Certificates in the related Mortgage Loan or (ii) both (A) the defect or breach materially and adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan (any such defect described in the
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preceding clause (i) or (ii), a “Material Document Defect” and any such breach described in the preceding clause (i) or (ii), a “Material Breach”), the Pooling and Servicing Agreement requires any party thereunder that determines such Material Document Defect or Material Breach exists, to promptly so notify Seller, among others, in writing. Seller may or, following receipt of a request to cure the related Material Document Defect or Material Breach as provided under the Pooling and Servicing Agreement by a party thereto (a “Cure Request”), Seller shall, not later than ninety (90) days from Seller’s receipt of the notice of, and a Cure Request with respect to, such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or cured in all material respects within such ninety (90) day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but Seller is diligently attempting to effect such correction or cure, as certified by Seller in an Officer’s Certificate delivered to the Trustee and the Custodian, then the cure period will be extended for an additional ninety (90) days unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as described in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” in the Pooling and Servicing Agreement and (y) the Material Document Defect was identified in a certification delivered to Seller by the Custodian (on behalf of the Trustee) pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than ninety (90) days prior to the Seller’s receipt of the notice of such Material Document Defect. The parties acknowledge that neither delivery of a certification or schedule of exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor possession of such certification or schedule by Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by Seller, the Master Servicer or the Special Servicer of any Material Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document Defect or Material Breach that exists cannot be corrected or cured in all material respects or Seller otherwise fails to correct or cure within the above cure periods, Seller shall, on or before the termination of such cure periods, either (i) repurchase the affected Mortgage Loan or REO Mortgage Loan or interest in the foregoing from Purchaser or its assignee at the Purchase Price as defined in the Pooling and Servicing Agreement, or (ii) if within the three-month period commencing on the Closing Date (or prior to the second anniversary of the Closing Date if the affected Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), at its option replace, without recourse (other than the representations and warranties made with respect thereto), any Mortgage Loan or successor REO Mortgage Loan to which such defect or breach relates with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or Material Breach would cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code), then notwithstanding the previous sentence or the previous paragraph, the cure, repurchase or substitution must occur within eighty-five (85) days from the date Seller was notified of the defect or breach; provided, that in any event, any such cure, repurchase or substitution must occur no later than eighty-five (85) days from the date of determination of the existence of a Material Document Defect or Material Breach as determined in Section 5.2 hereof. Seller agrees that any substitution shall be completed in accordance with the terms, conditions
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and requirements of the Pooling and Servicing Agreement, including the payment of a substitution shortfall amount equal to the excess, if any, of the applicable Purchase Price for the Mortgage Loan or REO Mortgage Loan to be replaced, over the Stated Principal Balance of the applicable Qualifying Substitute Mortgage Loan (together with any additional amounts specified in the Pooling and Servicing Agreement).
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated above (a “Defective Mortgage Loan”), (y) such Defective Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (such Defective Mortgage Loan and such other Mortgage Loans, collectively, “Crossed Mortgage Loans”) and (z) the applicable document defect or breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to such other Crossed Mortgage Loans (without regard to this paragraph), then the applicable document defect or breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach, as the case may be, as to each such other Crossed Mortgage Loan for purposes of the above provisions, and Seller shall be obligated to repurchase or replace each such other Crossed Mortgage Loan in accordance with the provisions above, unless, in the case of such breach or document defect, (A) Seller provides a Nondisqualification Opinion to the Trustee at the expense of Seller and (B) both of the following conditions would be satisfied if Seller were to repurchase or replace only those Mortgage Loans as to which a Material Breach or Material Document Defect had occurred without regard to this paragraph (the “Affected Loan(s)”): (i) the Debt Service Coverage Ratio for all those Crossed Mortgage Loans (excluding the Affected Loan(s)) for the four (4) calendar quarters immediately preceding the repurchase or replacement is not less than the lesser of (A) 0.10x below the debt service coverage ratio for all such Crossed Mortgage Loans (including the Affected Loans(s)) set forth in Appendix I to the Prospectus Supplement and (B) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater of (A) the loan-to-value ratio, expressed as a whole number (taken to one decimal place), for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement plus 10% and (B) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (including the Affected Loans(s)), at the time of repurchase or replacement. The determination of the Master Servicer as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error. The Master Servicer will be entitled to cause to be delivered, or direct Seller to (in which case Seller shall) cause to be delivered to the Master Servicer, an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (ii) above has been satisfied, in each case at the expense of Seller if the scope and cost of the Appraisal is approved by Seller (such approval not to be unreasonably withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is required to repurchase or substitute for such Defective Mortgage Loan in the manner set forth in Section 5.4 while the Custodian (on behalf of the Trustee, as assignee of Purchaser) continues to hold any related Crossed Mortgage Loan, Seller and Purchaser hereby agree to forebear from enforcing any remedies against the other’s Primary Collateral but may exercise remedies against the Primary Collateral securing their respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as
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such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such party, then both parties shall forbear from exercising such remedies until the loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the Pooling and Servicing Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Mortgage Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding principal balances. All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof. The Mortgagors set forth on Schedule A hereto are intended third-party beneficiaries of the provisions set forth in Section 5.4 and this Section 5.5. The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.
5.6 Any of the following document defects shall be conclusively presumed to materially and adversely affect the interests of Certificateholders in a Mortgage Loan and be a Material Document Defect: (a) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity that appears to be regular on its face (if such absence results from Seller’s failure to deliver such item); (b) the absence from the Mortgage File of the original signed Mortgage (or, with respect to any Non-Serviced Mortgage Loan, a copy thereof) that appears to be regular on its face, unless there is included in the Mortgage File a certified copy of the Mortgage by the local authority with which the Mortgage was recorded (if such absence results from Seller’s failure to deliver such item); (c) the absence from the Mortgage File of the item specified in paragraph 2.2.8 (if such absence results from Seller’s failure to deliver such item); (d) the absence from the Mortgage File of the original or a copy of any letter of credit in effect as of the Closing Date (if such absence results from Seller’s failure to deliver such item); or (e) the absence from the Mortgage File of a copy of the item specified in paragraph 2.2.10 (if such absence results from Seller’s failure to deliver such item) if the related Mortgage Loan is secured only by the related ground lease, space lease or air rights lease.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or cure of such Material Document Defect or Material Breach, (ii) to repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance with this Agreement, then provided that (x) the period of time provided for Seller to correct, repurchase or cure has expired and (y) the Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to the Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate (or permit the liquidation of) the Mortgage Loan pursuant to the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller acknowledges and agrees that any modification of the Mortgage Loan pursuant to a workout shall not constitute a defense to any repurchase claim nor shall such modification and workout change the Purchase Price due from Seller for any repurchase claim. In the event of any such modification and workout, Seller shall be obligated to repurchase the Mortgage Loan as modified and the Purchase Price shall include any Workout
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Fee paid to the Special Servicer up to the date of repurchase plus the present value (calculated at the applicable Calculation Rate) of the Workout Fee that would have been payable to the Special Servicer in respect of such Mortgage Loan if the Mortgage Loan had performed in accordance with its terms to its Maturity Date, provided that no amount shall be paid by Seller in respect of any Workout Fee if a Liquidation Fee already comprises a portion of the Purchase Price or if the related Mortgagor has already paid such fee. Seller is entitled to be notified promptly and in writing by the Special Servicer of any offer that it receives to purchase the applicable Mortgage Loan or related REO Property, each in connection with such liquidation. Any sale of the related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the related REO Property, to a Person other than Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against Seller and (ii) representation or warranty of any kind (either expressed or implied) by Seller to or for the benefit of such Person.
5.8 (a) If Seller (i) receives from any Person (other than the Depositor) any request or demand for repurchase or replacement of a Mortgage Loan because of a breach of a representation or warranty or a document defect (any such request or demand for repurchase or replacement, a “Repurchase Request”); (ii) rejects any Repurchase Request or is in dispute with the Person making any Repurchase Request as to the merits of such Repurchase Request (a “Dispute”); or (iii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request, then Seller shall deliver notice of such Repurchase Request, rejection, Dispute or withdrawal (each, a “15Ga-1 Notice”) to the Depositor within ten (10) Business Days of Seller’s receipt thereof (or in the case of a rejection or Dispute, the occurrence thereof).
(b) Seller shall provide to the Depositor relevant portions of any Form ABS-15G that Seller is required to file with the Commission (only to the extent that such portions relate to the Mortgage Loans) on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Commission. Promptly upon request, the Depositor shall provide or cause to be provided to Seller such information regarding the principal balances of the Mortgage Loans in order for Seller to prepare any such form ABS-15G.
(c) Seller agrees that a Repurchase Request Recipient (as defined in the Pooling and Servicing Agreement) will not, in connection with providing Seller with any 15Ga-1 Notice (as defined in the Pooling and Servicing Agreement), be required to provide any information protected by the attorney-client privilege or attorney work product doctrines. In addition, Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.3(e) of the Pooling and Servicing Agreement is so provided only to assist the Purchaser, Seller and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to Section 2.3(e) of the Pooling and Servicing Agreement by a Repurchase Request Recipient shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice (as defined in the Pooling and Servicing Agreement).
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(d) Seller represents and warrants that any information Seller provides to the Depositor pursuant to this Section 5.8 shall be true, complete and correct as of the date Seller provides such information to the Depositor.
5.9 The fact that a Material Document Defect or Material Breach is not discovered until after completion of foreclosure (but in all instances prior to the sale of the related REO Property) shall not prejudice any claim against Seller for repurchase of the REO Property (or the Trust’s interest therein). If the Master Servicer or Special Servicer, as applicable, notifies Seller of the discovery of the Material Document Defect or Material Breach then Seller shall have ninety (90) days to correct or cure such Material Document Defect or Material Breach or purchase the REO Property (or the Trust’s interest therein) at the Purchase Price. After a final liquidation of the Mortgage Loan or REO Property, if a court of competent jurisdiction issues a final order after the expiration of any applicable appeal period that Seller is or was obligated to repurchase the related Mortgage Loan or REO Property (or the Trust’s interest therein) (a “Final Judicial Determination”) or Seller otherwise accepts liability, then, but in no event later than the termination of the Trust pursuant to Section 11.1 of the Pooling and Servicing Agreement, Seller will be obligated to pay to the Trust the difference between any Liquidation Proceeds received upon such liquidation in accordance with the Pooling and Servicing Agreement (including those arising from any sale to Seller) and the Purchase Price.
5.10 Reserved.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material Document Defect or a Material Breach or repurchase or replace a defective Mortgage Loan constitute the sole remedies of Purchaser or its assignees with respect to a Material Document Defect or Material Breach in respect of an outstanding Mortgage Loan; provided, that this limitation shall not in any way limit Purchaser’s rights or remedies upon breach of any other representation or warranty or covenant by Seller set forth in this Agreement (other than those set forth in Exhibit 2).
5.12 Notwithstanding the foregoing, if there is a breach of the representations and warranties set forth in paragraph 30 or paragraph 32 in Exhibit 2 hereto, and as a result the payments, by a Mortgagor, of reasonable costs and expenses associated with securing the consent or approval of the holder of the Mortgage for a waiver of a “due-on-sale” or “due-on-encumbrance” clause or the defeasance of a Mortgage Loan are insufficient such that the Trust incurs an Additional Trust Expense in an amount equal to such reasonable costs and expenses not paid by such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within ninety (90) days of the receipt of notice of such breach in an amount sufficient to avoid such Additional Trust Expense. The parties hereto acknowledge that such reimbursement shall be the only obligation of Seller with respect to the breach discussed in the previous sentence.
5.13 Notwithstanding the foregoing, Purchaser and Seller hereby acknowledge and agree that Seller has retained the right of the lender under the Mortgage Loan documents with respect to the Mortgage Loans to receive a percentage of the economic benefit associated with the ownership of the successor borrower, and to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral, if there is a defeasance of such Mortgage Loan (“Bank of America Lender Successor
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Borrower Right”). Purchaser shall cause the Pooling and Servicing Agreement to provide that (i) if the Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan subject to defeasance, then the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to Seller or its assignee and (ii) until such time as Seller provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with Bank of America Lender Successor Borrower Right shall be delivered to Seller pursuant to the notice provisions of the Pooling and Servicing Agreement.
5.14 The Pooling and Servicing Agreement shall provide that (a) any party that is required to report the discovery of a Material Document Defect or Material Breach shall give written notice promptly to Seller of any such discovery and (b) the Master Servicer shall give prompt written notice to Seller if any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.15 If Seller repurchases any Mortgage Loan pursuant to this Section 5, Purchaser or its assignee, following receipt by the Trustee of the Purchase Price therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage Loan documents with respect to such Mortgage Loan, and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed and assigned to Seller in the same manner such that Seller shall be vested with legal and beneficial title to such Mortgage Loan, in each case without recourse, including any property acquired in respect of such Mortgage Loan or proceeds of any insurance policies with respect thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202 at 9:00 a.m., Charlotte, North Carolina time, on the Closing Date. The closing shall be subject to each of the following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser specified in Section 4 hereof (including, without limitation, the representations and warranties set forth on Exhibit 2 hereto) shall be true and correct as of the Closing Date (to the extent of the standard, if any, set forth in each representation and warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms as are agreed upon and reasonably acceptable to Seller or Purchaser, as applicable, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its designee all documents required to be delivered to Purchaser as of the Closing Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser and its affiliates in their sole determination and the parties shall have agreed to the form and contents of Seller’s Information to be disclosed in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement.
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6.1.5 All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with, and Seller and Purchaser shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to Purchaser pursuant to Section 8 hereof.
6.1.7 The Private Certificates shall have received the ratings indicated in the Final PPM, and the Public Certificates shall have received the ratings indicated in the Free Writing Prospectus.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and none of the Initial Purchasers shall have terminated the Certificate Purchase Agreement or suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans pursuant to Section 1 hereof.
6.1.10 Seller shall have timely complied with all requirements of Rule 15Ga-2 and Rule 17g-5 under the Exchange Act to the satisfaction of Purchaser.
6.2 Each party agrees to use its best efforts to perform its respective obligations hereunder in a manner that will enable Purchaser to purchase the Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and dated the Closing Date, and upon which the Purchaser, its successors and assigns, and the Underwriters and the Initial Purchasers may rely, to the effect that: (i) the representations and warranties of Seller in this Agreement are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date; and (ii) Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller’s articles of association and bylaws.
7.4 A certificate of good standing with respect to Seller from the Comptroller of the Currency of the United States dated not earlier than thirty (30) days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the Closing Date, and upon which Purchaser, its successors and assigns, the Underwriters and the Initial Purchasers may rely, to the effect that each individual who, as an officer or representative of Seller, signed this Agreement or any other document or certificate delivered on or before the
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Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in paragraph 7.6.4(C) (but only insofar as it relates to any law, rule or regulation of a federal or state governmental authority) and paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing Date, and addressed to Purchaser, the Underwriters and the Initial Purchasers, substantially to the effect of the following (with such changes and modifications as Purchaser may approve and subject to such counsel’s reasonable qualifications):
7.6.1 Seller is validly existing under the laws of the United States and has full corporate or organizational power and authority to enter into and perform its obligations under this Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by Seller.
7.6.3 No consent, approval, authorization or order of any federal court or governmental agency or body is required for the consummation by Seller of the transactions contemplated by the terms of this Agreement except any approvals as have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by Seller, nor the consummation by Seller of any of the transactions contemplated by the terms of this Agreement (A) conflicts with or results in a breach or violation of, or constitutes a default under, the organizational documents of Seller, (B) to the knowledge of such counsel, constitutes a default under any term or provision of any material agreement, contract, instrument or indenture, to which Seller is a party or by which it or any of its assets is bound or results in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument, other than pursuant to this Agreement, or (C) conflicts with or results in a breach or violation of any law, rule, regulation, order, judgment, writ, injunction or decree of any federal or State of New York court or governmental authority having jurisdiction over Seller or its assets, except where in any of the instances contemplated by clauses (B) or (C) above, any conflict, breach or default, or creation or imposition of any lien, charge or encumbrance, will not have a material adverse effect on the consummation of the transactions contemplated hereby by Seller or materially and adversely affect its ability to perform its obligations and duties hereunder or result in any material adverse change in the business, operations, financial condition, properties or assets of Seller, or in any material impairment of the right or ability of Seller to carry on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions, investigations or proceedings pending to which Seller is a party, or threatened against Seller, (a) asserting the invalidity of this Agreement or (b) which materially and adversely affect the performance by Seller of its obligations under, or the validity or enforceability of, this Agreement.
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7.6.6 This Agreement is a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by (1) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (2) other laws relating to or affecting the rights of creditors generally, (3) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (4) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other things specified in such opinion, the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions to matters governed by the federal laws of the United States and the corporate laws of the State of Delaware and the State of New York, as applicable.
7.7 Such other opinions of counsel as any Rating Agency may request in connection with the sale of the Mortgage Loans by Seller to Purchaser or Seller’s execution and delivery of, or performance under, this Agreement, in each case also addressed to the Purchaser, the Underwriters and the Initial Purchasers.
7.8 A negative assurance letter, dated the Closing Date and addressed to the Purchaser, the Underwriters, and the Initial Purchasers, in form reasonably acceptable to Purchaser, the Underwriters, and the Initial Purchasers, as to the disclosure provided by Seller to Purchaser with respect to itself and the Mortgage Loans for inclusion in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement.
7.9 An opinion of counsel, dated the Closing Date and addressed to Purchaser and the Underwriters, in form reasonably acceptable to Purchaser and the Underwriters, that such disclosure complies as to form with the applicable requirements of Regulation AB with respect to Seller’s role as “Sponsor” and as an “Originator” (or, if Seller was not the originator with respect to any Mortgage Loan, the role of the related originator as an “Originator”) (each as defined in Regulation AB) in connection with the Certificates.
7.10 A letter from a nationally recognized certified public accounting firm in form reasonably acceptable to Purchaser, the Underwriters and the Initial Purchasers, dated the date hereof, addressed to Purchaser, the Underwriters and the Initial Purchasers, to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Free Writing Prospectus, the Preliminary PPM, the Final PPM, and the Prospectus Supplement agrees with the records of Seller.
7.11 Such further certificates, opinions and documents as Purchaser may reasonably request.
7.12 An officer’s certificate of Purchaser, dated the Closing Date, with the resolutions of Purchaser authorizing the transactions described herein attached thereto, together with
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certified copies of the charter, by-laws and certificate of good standing of Purchaser dated not earlier than thirty (30) days prior to the Closing Date.
7.13 Such other certificates of Purchaser’s officers or others and such other documents to evidence fulfillment of the conditions set forth in this Agreement as Seller or its counsel may reasonably request.
7.14 An executed Bill of Sale.
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8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by Seller and Purchaser in a separate Memorandum of Understanding dated September 4, 2015 and entered into between Seller and UBS Real Estate Securities Inc. in connection with this Agreement and the issuance of the Certificates (the “MOU”).
9. NOTICES. All communications provided for or permitted hereunder shall be in writing and shall be deemed to have been duly given if (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid and received by the addressee, (c) sent by express courier delivery service and received by the addressee, or (d) transmitted by facsimile transmission (or any other type of electronic transmission agreed upon by the parties) and confirmed by a writing delivered by any of the means described in (a), (b) or (c), if (i) to Purchaser, addressed to Banc of America Merrill Lynch Commercial Mortgage Inc., One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, III (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, facsimile number: (404) 736-2127, and with a copy to: Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202, facsimile number: (704) 348-5200), or if (ii) to Seller, addressed to Bank of America, National Association, One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, III, facsimile number: (646) 855-5044 (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, facsimile number: (404) 736-2127, and with a copy to: Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202, facsimile number: (704) 348-5200) (or to such other address as may hereafter be furnished in writing by Purchaser or Seller, as applicable).
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or that is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law that prohibits or renders void or unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such instruments and take such actions as the other may, from time to time, reasonably request in order to effectuate the purpose and to carry out the terms of this Agreement and the Pooling and Servicing Agreement.
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12. SURVIVAL. Each party hereto agrees that the representations, warranties and agreements made by it herein and in any certificate or other instrument delivered pursuant hereto shall be deemed to be relied upon by the other party, notwithstanding any investigation heretofore or hereafter made by the other party or on its behalf, and that the representations, warranties and agreements made by such other party herein or in any such certificate or other instrument shall survive the delivery of and payment for the Mortgage Loans and shall continue in full force and effect, notwithstanding any restrictive or qualified endorsement on the Mortgage Notes and notwithstanding subsequent termination of this Agreement.
13. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the benefit of and shall be binding upon Seller, Purchaser and their respective successors, legal representatives, and permitted assigns, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (i) the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other than clause 4.1.7 and clause 4.1.9), 5, 9, 10, 11, 12, 13, 15 and 16 hereof may be assigned to the Trustee as may be required to effect the purposes of the Pooling and Servicing Agreement and, upon such assignment, the Trustee shall succeed to the rights and obligations hereunder of Purchaser and (ii) each Underwriter and each Initial Purchaser is a third-party beneficiary of Section 4.1.9. No owner of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be deemed a successor or permitted assign because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. The rights and obligations of Seller under this Agreement shall not be assigned by Seller without the prior written consent of Purchaser, except that any person into which Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which Seller is a party, or any person succeeding to the entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof (other than the MOU (solely with respect to those portions of this Agreement that are not assigned to the Trustee), Bill of Sale, the Indemnification Agreement and the Pooling and Servicing Agreement), and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
[Signature pages follow.]
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed by their respective duly authorized officers on the date first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION | |||
By: | /s/ Leland F. Bunch, III | ||
Name:
Leland F. Bunch, III Title: Managing Director |
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. | |||
By: | /s/ Leland F. Bunch, III | ||
Name:
Leland F. Bunch, III Title: Senior Vice President |
BACM 2015-UBS7 – BANA Mortgage Loan Purchase Agreement
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
· | Loan Number |
· | Mortgage Loan Seller |
· | Property Name |
· | Cut-off Date Balance |
· | Address |
· | City |
· | State |
· | Note Date |
· | Maturity/ARD Date |
· | Interest Rate |
· | Original Balloon Term |
· | Remaining Term to Maturity |
· | Original Amort. Term |
· | ARD (Yes/No) |
· | Primary Servicing Fee Rate |
· | Pari Passu Primary Servicing Fee Rate |
[See attached]
I-1 |
BACM 2015-UBS7 Mortgage Loan Schedule
BANA
Loan Number | Mortgage Loan Seller | Property Name | Cut-off Balance | Address | City | State | Note Date | Maturity/ARD Date | Interest Rate | Original
Balloon Term (Months) |
Remaining
Term to Maturity (Months) |
Original
Amort. Term (Months) |
ARD (Yes/No) | Primary Servicing Fee Rate | Pari Passu Primary Servicing Fee Rate | |||||||||||||||
2 | BANA | 261 Fifth Avenue | 70,000,000 | 261 Fifth Avenue | New York | NY | 8/6/2015 | 9/1/2025 | 4.4200% | 120 | 120 | 0 | No | 0.0000% | 0.0050% | |||||||||||||||
16 | BANA | Kensington Commons | 15,000,000 | 4142 Adams Avenue | San Diego | CA | 8/10/2015 | 9/1/2025 | 4.4700% | 120 | 120 | 360 | No | 0.0325% | 0.0000% | |||||||||||||||
20 | BANA | Rancho Carmel Plaza | 9,500,000 | 10155-10195 Rancho Carmel Drive | San Diego | CA | 8/6/2015 | 9/1/2025 | 4.6090% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
26 | BANA | Whittier Self Storage | 6,000,000 | 10230 Colima Road | Whittier | CA | 8/4/2015 | 9/1/2025 | 4.4400% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
27 | BANA | Waterchase Apartments | 5,900,000 | 15100 Golden Eagle | Humble | TX | 7/27/2015 | 8/1/2025 | 4.5410% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
28 | BANA | Aviare Place Apartments | 5,472,000 | 2600 West Loop 250 North | Midland | TX | 10/31/2014 | 11/1/2024 | 4.2600% | 120 | 110 | 360 | No | 0.0000% | 0.0050% | |||||||||||||||
29 | BANA | Somerset Meadows MHC | 4,950,000 | 5655 Blueridge Avenue | Kimball Township | MI | 5/29/2015 | 6/1/2025 | 4.3390% | 120 | 117 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
30 | BANA | Madrone Apartments | 4,550,000 | 15411-15499 Marty Drive | Glen Ellen | CA | 7/27/2015 | 8/1/2025 | 4.4530% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
42 | BANA | StorQuest - Loma Linda | 1,785,000 | 11105 Mountain View Avenue | Loma Linda | CA | 7/6/2015 | 8/1/2025 | 4.9000% | 120 | 119 | 360 | No | 0.0025% | 0.0000% |
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) | Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. At the time of the sale, transfer and assignment to Purchaser, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to Seller), participation or pledge, and Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement. Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Purchaser constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan. |
(2) | Mortgage Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (ii) that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”). |
Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.
(3) | Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the |
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practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications. |
(4) | Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan. |
(5) | Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases from Seller constitutes a legal, valid and binding assignment from Seller. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or with respect to those Mortgage Loans described in paragraph (34) hereof, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth in Schedule 2-A to this Exhibit 2 (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-off Date, to Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below). Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements is required in order to effect such perfection. |
(6) | Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary |
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title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; and (f) if the related Mortgage Loan constitutes a Crossed Mortgage Loan, the lien of the Mortgage for the related Crossed Mortgage Loan or Crossed Mortgage Loans; provided that none of such items (a) through (f), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid, no claims have been made by Seller thereunder and no claims have been paid thereunder. Neither Seller nor, to Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. |
(7) | Junior Liens. It being understood that B Notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Crossed Mortgage Loans, there are, as of origination, and to Seller’s knowledge, as of the Cut-off Date, no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics’ and materialmen’s liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth in Schedule 2-A to this Exhibit 2, Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor. |
(8) | Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of |
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Leases, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee. |
(9) | UCC Filings. If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents or any other personal property leases applicable to such personal property), to the extent perfection may be effected pursuant to applicable law by recording or filing, as the case may be. Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above. No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection. |
(10) | Condition of Property. Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six (6) months of origination of the Mortgage Loan and within twelve (12) months of the Cut-off Date. |
An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve (12) months prior to the Cut-off Date. To Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.
(11) | Taxes and Assessments. All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or installments thereof, which could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be |
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payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority. |
(12) | Condemnation. As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there is no proceeding pending, and, to Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property. |
(13) | Actions Concerning Mortgage Loan. As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f) the current principal use of the Mortgaged Property. |
(14) | Escrow Deposits. All escrow deposits and payments required to be escrowed with lender pursuant to each Mortgage Loan are in the possession, or under the control, of Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with lender under the related Mortgage Loan documents are being conveyed by Seller to Purchaser or its servicer. |
(15) | No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by Seller to merit such holdback). |
(16) | Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating of at least “A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from Moody’s or “A-” from S&P (collectively the “Insurance Rating Requirements”), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary, or containing such |
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endorsements as are necessary, to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property. |
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than twelve (12) months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, eighteen (18) months).
If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program.
If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms.
The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for loans originated for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.
An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of fifty (50) years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Moody’s or “A-” by S&P in an amount not less than 100% of the SEL.
The Mortgage Loan documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Mortgage Loan, the lender (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.
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All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least ten (10) days’ prior notice to the lender of termination or cancellation arising because of nonpayment of a premium and at least thirty (30) days prior notice to the lender of termination or cancellation (or such lesser period, not less than ten (10) days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.
(17) | Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created. |
(18) | No Encroachments. To Seller’s knowledge based solely on surveys obtained in connection with origination and the lender’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy. |
(19) | No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization |
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feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by Seller. |
(20) | REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in the U.S. Department of Treasury regulations (the “Treasury Regulations”) Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including buildings and structural components thereof, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Section 1.860G-2(a)(1)(ii) of the Treasury Regulations). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. Any prepayment premium and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Section 1.860G-1(b)(2) of the Treasury Regulations. All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations. |
(21) | Compliance with Certain Laws. The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury. |
(22) | Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust. |
(23) | Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable |
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law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee. |
(24) | Local Law Compliance. To Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan and as of the Cut-off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) are insured by the Title Policy or a law and ordinance insurance policy or (ii) would not have a material adverse effect on the Mortgage Loan. The terms of the Mortgage Loan documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws. |
(25) | Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to Seller’s knowledge based upon a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect. The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located. |
(26) | Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events: (i) if any voluntary petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagor’s (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan; (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B) security deposits or, alternatively, the failure of any security deposits to be delivered to lender upon foreclosure or action in lieu thereof (except to the |
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extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv) breaches of the environmental covenants in the Mortgage Loan documents; or (v) commission of intentional material physical waste at the Mortgaged Property. |
(27) | Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial Defeasance (as defined in paragraph (32) below), of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Mortgage Loan, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (as defined in paragraph (32) below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Section 1.860G-2(b)(2) of the Treasury Regulations and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property after the release is not equal to at least 80% of the principal balance of the Mortgage Loan outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. |
In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan in an amount not less than the amount required by the loan-to-value ratio and other requirements of the REMIC Provisions and, to such extent, condemnation awards may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan.
No Mortgage Loan that is secured by more than one Mortgaged Property or that is a Crossed Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other
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than in compliance with loan-to-value ratio and other requirements of the REMIC Provisions.
(28) | Financial Reporting and Rent Rolls. Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis. |
(29) | Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 and the Terrorism Risk Insurance Program Reauthorization Act of 2015 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Seller’s knowledge, do not, as of the Cut-off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms; provided, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount. |
(30) | Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due on sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage |
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Loan documents (which provide for transfers without the consent of the lender which are customarily acceptable to Seller lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs (27) and (32) herein or the exceptions thereto set forth in Schedule 2-A to this Exhibit 2, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Serviced Companion Loan or Non-Serviced Companion Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests, (iii) any Crossed Mortgage Loan, as set forth on Appendix I to the Prospectus Supplement or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance. |
(31) | Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Both the Mortgage Loan documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Principal Balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date Principal Balance equal to $5 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan |
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documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Crossed Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity. |
(32) | Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for Defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two (2) years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Section 1.860G-2(a)(8)(ii) of the Treasury Regulations, the revenues from which will, in the case of a full Defeasance, be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date, and if the Mortgage Loan permits partial releases of real property in connection with partial Defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to the lesser of (a) 110% of the allocated loan amount for the real property to be released and (b) the outstanding principal balance of the Mortgage Loan; (iv) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (v) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by Defeasance collateral is required to be assumed (or the Mortgagee may require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor is required to provide an opinion of counsel that the Mortgagee has a perfected security interest in such collateral prior to any other claim or interest; and (vii) the Mortgagor is required to pay all rating agency fees associated with Defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with Defeasance, including, but not limited to, accountant’s fees and opinions of counsel. |
(33) | Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD loans and situations where default interest is imposed. |
(34) | Ground Leases. For purposes of the Mortgage Loan Purchase Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land (or, with respect to air rights leases, the air) and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency or similar leases for purposes of conferring a tax abatement or other benefit. |
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With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that:
(a) | The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; |
(b) | The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the lender, and no such consent has been granted by the Seller since the origination of the Mortgage Loan except as reflected in any written instruments which are included in the related Mortgage File; |
(c) | The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes); |
(d) | The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Mortgaged Property is subject; |
(e) | The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable (including pursuant to foreclosure) to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor; |
(f) | Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such |
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Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; |
(g) | The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender; |
(h) | A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease; |
(i) | The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by Seller in connection with loans originated for securitization; |
(j) | Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; |
(k) | In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and |
(l) | Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. |
(35) | Servicing. The servicing and collection practices used by Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs. |
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(36) | Origination and Underwriting. The origination practices of Seller (or the related originator if Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided, that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit 2. |
(37) | No Material Default; Payment Record. No Mortgage Loan has been more than thirty (30) days delinquent, without giving effect to any grace or cure period, in making required payments since origination, and as of the date hereof, no Mortgage Loan is more than thirty (30) days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date. To Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by Seller in this Exhibit 2. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents. |
(38) | Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding. |
(39) | Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Crossed Mortgage Loan, no Mortgage Loan has a Mortgagor that is an Affiliate of another Mortgagor. An “Affiliate” for purposes of this paragraph (39) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor. |
(40) | Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within twelve (12) months prior to its origination date (or an update of a |
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previous ESA was prepared), and such ESA (i) did not identify the existence of Recognized Environmental Conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related lender; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated, abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent, was obtained from the applicable governmental regulatory authority (or the Environmental Condition affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action or investigation is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the Environmental Condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for the Environmental Condition and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To Seller’s knowledge, except as set forth in the ESA, the Mortgage File or the Prospectus Supplement, there is no Environmental Condition at the related Mortgaged Property. |
(41) | Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within six (6) months of the Mortgage Loan origination date, and within twelve (12) months of the Closing Date. The appraisal is signed by an appraiser who is a Member of the Appraisal Institute (“MAI”) and that (i) was engaged directly by the originator of the Mortgage Loan or Seller, or a correspondent or agent of the originator of the Mortgage Loan or Seller, and (ii) to Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. |
(42) | Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to the Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-off Date and |
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contains all information required by the Pooling and Servicing Agreement to be contained therein. |
(43) | Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Trust, except as set forth on Schedule 2-B of this Exhibit 2. |
(44) | Advance of Funds by Seller. After origination, no advance of funds has been made by Seller to the related Mortgagor other than in accordance with the Mortgage Loan documents, and, to Seller’s knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Mortgage Loan documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a lender-controlled lockbox if required or contemplated under the related lease or Mortgage Loan documents). Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof. |
(45) | Compliance with Anti-Money Laundering Laws. Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan, the failure to comply with which would have a material adverse effect on the Mortgage Loan. |
For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein.
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Schedule 2-A
EXCEPTIONS
TO REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
BANK OF AMERICA, NATIONAL ASSOCIATION
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
2
|
261 Fifth Avenue
|
(1) Whole Loan; Ownership of Mortgage Loans
|
The related $180,000,000 loan to borrower is secured on a pari passu basis by two notes in the following original principal amounts (Note A-1 in amount of $110,000,000 and Note A-2 in amount of $70,000,000). Note A-2 secures the “261 Fifth Avenue Mortgage Loan”.
Note A-1 secures the “261 Fifth Avenue Pari Passu Companion Loan” and is expected to be contributed to a future securitization.
The related whole loan will be serviced pursuant to the pooling and servicing agreement for the BACM 2015-UBS7 commercial mortgage securitization until the 261 Fifth Avenue Pari Passu Companion Loan is securitized at which time the servicing of the related whole loan will shift to the related pooling and servicing agreement.
|
28
|
Aviare Place Apartments
|
(1) Whole Loan; Ownership of Mortgage Loans
|
The related $26,322,000 loan to borrower is secured on a pari passu basis by two notes in the following original principal amounts (Note A-1 in amount of $20,850,000 and Note A-2 in amount of $5,472,000). Note A-2 secures the “Aviare Place Apartments Mortgage Loan”.
Note A-1 secures the “Aviare Place Apartments Non-Serviced Companion Loan” and was contributed by Bank of America into the MSBAM 2015-C23 commercial mortgage securitization.
The related whole loan will be serviced pursuant to the pooling and servicing agreement for the MSBAM 2015-C23 commercial mortgage securitization.
|
2
|
261 Fifth Avenue
|
(6) Permitted Liens; Title Insurance
|
The related Mortgage secures the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Pari Passu Companion Loan on a pari passu basis.
|
28
|
Aviare Place Apartments
|
(6) Permitted Liens; Title Insurance
|
The related Mortgage secures the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Non-Serviced Companion Loan on a pari passu basis.
|
2
|
261 Fifth Avenue
|
(13) Actions Concerning Mortgage Loan
|
One of the two (2) non-recourse carveout guarantors (Jeffrey Feil) is named as defendant in a lawsuit initiated by various family members/ shareholders alleging mismanagement of certain family businesses and seeking dissolution and liquidation of the related business assets. Mr. Feil assumed control of the businesses following the death of his parents. Specifically, the plaintiffs’ claims include that Mr. Feil, using his voting control, engaged in a scheme to restrict cash distributions and coerce the family members to sell their interests in the family businesses to Mr. Feil on below-market terms. Additional claims include that Mr. Feil misappropriated insurance proceeds insurance proceeds following Hurricane Katrina. Certain information concerning the related proceedings is under seal because of existing confidentiality agreements. The loan documents include requirements for hard/ upfront cash management and environmental insurance, among other things.
|
Sch. 2-A-1 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
2
|
261 Fifth Avenue
|
(16) Insurance
|
The related Mortgage Loan documents provide that the required insurance policies may be provided by a syndicate of insurers through which (A) if four (4) or fewer insurance companies issue the insurance policies in the first layer of coverage, then at least 75% of the insured amount must be provided by insurance companies with a claims paying ability rating of “A” or better by S&P (and the equivalent ratings by Moody’s, Fitch and DBRS to the extent each such Rating Agency rates the insurance company and is rating the Certificates), with no carrier below “BBB” or (B) if five (5) or more insurance companies issue the insurance policies in the first layer of coverage, then at least 60% of the insured amount must be provided by insurance companies with a claims paying ability rating of “A” or better by S&P (and the equivalent ratings by Moody’s, Fitch and DBRS to the extent each such Rating Agency rates the insurance company and is rating the Certificates), with no carrier below “BBB”.
|
16
|
Kensington Commons
|
(16) Insurance
|
The related Mortgage Loan documents provide that the required insurance policies may be provided by a syndicate of insurers through which (i) not less than five (5) insurance companies, 60% of which insurance companies having a claims paying ability/financial strength rating of “A” (or its equivalent) or better by the Rating Agencies (with the first layers of the coverages required under the related Mortgage Loan agreement provided by such insurance companies) and the remaining 40% of such insurance companies having a claims paying ability/financial strength rating of “BBB” (or its equivalent) or better by the Rating Agencies.
|
26
30
42
|
Whittier Self Storage
Madrone Apartments
StorQuest - Loma Linda
|
(16) Insurance
|
If the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2007 or subsequent statute, extension, or reauthorization is not in effect, then the related borrower will not be required to spend on the premium for terrorism insurance coverage more than two (2) times the amount of the insurance premium for a separate “Special Form” or “All Risks” policy or equivalent policy insuring only the related Mortgaged Property on a stand-alone basis under the related Mortgage Loan agreement (provided that the related borrower will be obligated to purchase the maximum amount of terrorism coverage available with funds equal to such cap to the extent such coverage is available).
|
28
|
Aviare Place Apartments
|
(16) Insurance
|
The related Mortgage Loan documents provide that (A) if four or fewer insurance companies, at least 75% of the insurance coverage represented must be provided by insurance companies with a rating of “A” or better by S&P and the equivalent by any other Rating Agency that rates the securities and actually provides ratings for such insurance companies, with no carrier below “BBB” and the equivalent by any other Rating Agency that rates the securities and actually provides ratings for such insurance companies and (B) if five or more insurance companies, then at least 60% of the insurance coverage represented must be provided by insurance companies with a rating of “A” or better by S&P and the equivalent by any other Rating Agency that rates the securities and actually provides ratings for such insurance companies, with no carrier below “BBB” and the equivalent by any other Rating Agency that rates the securities and actually provides ratings for such insurance companies; provided, however, up to 10% of the insurance coverage (other than the primary layer of coverage) may be provided by insurance companies with a rating of “A-VIII” or better by AM Best. The related Mortgage Loan documents also provide that, FM Global is a permitted insurance carrier provided it maintains a rating of “Api” from S&P.
|
28 |
Aviare Place Apartments |
(16) Insurance |
The related Mortgage Loan agreement requires that the related |
Sch. 2-A-2 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
|
Borrower to maintain terrorism insurance only so long as such coverage is commercially available.
| ||
2, 16, 20, 26, 27, 28, 29, 30 and 42 |
All BANA Mortgage Loans
|
(26) Recourse Obligations
|
The related Mortgage Loan documents do not use the exact phrase “intentional material physical waste” and the recourse liability of the related guarantor with respect to waste is generally limited to when there is sufficient cash flow from the operation of the Mortgaged Property to avoid such waste from occurring.
|
28
|
Aviare Place Apartments
|
(26) Recourse Obligations
|
The related guarantor’s liability for the bankruptcy related recourse carveout is capped at 15% of the principal Mortgage Loan amount then outstanding at the time of the occurrence of the related recourse event (plus certain enforcement costs).
|
2
|
261 Fifth Avenue
|
(28) Financial Reporting and Rent Rolls |
The related Mortgage Loan documents do not require the related Borrowers to combine their balance sheets and/or statement of income for the Mortgaged Properties on a combined basis. |
26
30
42
|
Whittier Self Storage
Madrone Apartments
StorQuest - Loma Linda
|
(29) Acts of Terrorism Exclusion
|
If the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Reauthorization Act of 2007 or subsequent statute, extension, or reauthorization is not in effect, then the related borrower will not be required to spend on the premium for terrorism insurance coverage more than two (2) times the amount of the insurance premium for a separate “Special Form” or “All Risks” policy or equivalent policy insuring only the related Mortgaged Property on a stand-alone basis under the related Mortgage Loan agreement (provided that the related borrower will be obligated to purchase the maximum amount of terrorism coverage available with funds equal to such cap to the extent such coverage is available).
|
28
|
Aviare Place Apartments |
(29) Acts of Terrorism Exclusion |
The related Mortgage Loan agreement requires that the related Borrower to maintain terrorism insurance only so long as such coverage is commercially available. |
2
26
27 |
261 Fifth Avenue
Whittier Self Storage
Waterchase Apartments
|
(31) Single-Purpose Entity
|
Borrower is a recycled Single-Purpose Entity, however, the related Borrower made standard representations and warranties, including backwards representations and warranties where required to complete coverage, and the recourse carveout guaranty includes coverage with respect to violations of such Single-Purpose Entity representations and warranties.
|
26
|
Whittier Self Storage
|
(31) Single-Purpose Entity
|
The related borrower previously owned a small parcel of vacant land in Big Bear, California, which was conveyed to another entity at closing of the related Mortgage Loan, however, the related Borrower made standard representations and warranties, including backwards representations and warranties where required to complete coverage, and the recourse carveout guaranty includes coverage with respect to violations of such Single-Purpose Entity representations and warranties.
|
2 |
261 Fifth Avenue
|
(43) Cross-Collateralization
|
The related Mortgage secures the 261 Fifth Avenue Mortgage Loan and the 261 Fifth Avenue Pari Passu Companion Loan on a pari passu basis. |
28 |
Aviare Place Apartments |
(43) Cross-Collateralization
|
The related Mortgage secures the Aviare Place Apartments Mortgage Loan and the Aviare Place Apartments Non-Serviced Companion Loan on a pari passu basis. |
Sch. 2-A-3 |
Schedule 2-B
List of Cross-Collateralized or Cross-Defaulted Mortgage Loans
None.
Sch. 2-B-1 |
EXHIBIT 3
FORM OF BILL OF SALE
1. Parties. The parties to this Bill of Sale are the following:
Seller: Bank of America, National Association
Purchaser: Banc of America Merrill Lynch Commercial Mortgage Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without recourse, all right, title and interest, whether now owned or hereafter acquired, in and to the Mortgage Loans identified on Exhibit 1 (the “Mortgage Loan Schedule”) to the Mortgage Loan Purchase Agreement, dated September 14, 2015 (the “Mortgage Loan Purchase Agreement”), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the following property: the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, all distributions with respect thereto payable after the Cut-off Date, all substitute or replacement Mortgage Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property, and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (a) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in clauses (a) and (b) above.
3. Purchase Price. The par amount equal to $123,157,000 (plus accrued interest and subject to certain adjustments pursuant to that certain Memorandum of Understanding dated September 4, 2015 and entered into between Seller and UBS Real Estate Securities Inc.).
4. Definitions. Terms used but not defined herein shall have the meanings assigned to them in the Mortgage Loan Purchase Agreement.
3-1 |
IN WITNESS WHEREOF, each of the parties hereto has caused this Bill of Sale to be duly executed and delivered on the Closing Date (as defined in the Mortgage Loan Purchase Agreement).
SELLER: | ||
BANK OF AMERICA, NATIONAL ASSOCIATION | ||
By: | ||
Name: | ||
Title: | ||
PURCHASER: | ||
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. | ||
By: | ||
Name: | ||
Title: |
3-2 |
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
TO
U.S. BANK NATIONAL ASSOCIATION AND LNR PARTNERS, LLC WITH RESPECT
TO BANK OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-
UBS7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2015-
UBS7
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated September 14, 2015 (the “Mortgage Loan Purchase Agreement”), between Bank of America, National Association (“Seller”) and Banc of America Merrill Lynch Commercial Mortgage Inc. (“Depositor”), Seller is selling certain multifamily and commercial mortgage loans (the “Mortgage Loans”) to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), between the Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the “Master Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, LNR Partners, LLC, as special servicer (the “Special Servicer”), and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”), both the Trustee and the Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;
WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.1 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of
4-1 |
“Mortgage File” in, and in accordance with Section 1.1 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to file or record in the appropriate public filing or recording offices, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the Special Servicer only such powers, responsibilities and authority as are set forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
Seller does also hereby make, constitute and appoint the Special Servicer, acting solely in its capacity as Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to limit the grant to either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trust Fund and the Certificateholders, neither the Custodian nor the Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by either the Custodian or the Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.
Any act or thing lawfully done hereunder by either the Custodian (on behalf of the Trustee) or the Special Servicer shall be binding on Seller and Seller’s successors and assigns.
4-2 |
This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the Special Servicer, as applicable, until the earliest occurrence of any of the following events:
(1) | with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement; |
(2) | with respect to the Special Servicer, the termination of the Special Servicer and its replacement with a successor Special Servicer under the terms of the Pooling and Servicing Agreement; |
(3) | with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian; |
(4) | with respect to the Special Servicer, the appointment of a receiver or conservator with respect to the business of the Special Servicer, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Special Servicer; |
(5) | with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund; |
(6) | with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and |
(7) | with respect to the Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 9.30(b) of the Pooling and Servicing Agreement with respect to the Special Servicer. |
Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.
THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS
4-3 |
OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
[Signature on next page]
4-4 |
IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2015.
BANK OF AMERICA, NATIONAL ASSOCIATION | ||
By: | ||
Name: Title: |
4-5 |
ACKNOWLEDGEMENT
STATE OF NEW YORK | ) | |
) | ss.: | |
COUNTY OF NEW YORK | ) |
On this ____ day of _____________ 2015, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of Bank of America, National Association, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said ___________________ acknowledged said instrument to be the free act and deed of said corporation.
Name: | ||
Notary Public in and for said County and State |
My
Commission Expires:
4-6 |
Schedule A
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
None.
Sch. A-1 |
Exhibit 99.2
Execution Version
MORTGAGE LOAN PURCHASE AGREEMENT
between
UBS
REAL ESTATE SECURITIES INC.
as Seller
and
BANC
OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.
as Purchaser
Dated September 14, 2015
TABLE OF CONTENTS
Page | |
1. AGREEMENT TO PURCHASE | 2 |
2. CONVEYANCE OF MORTGAGE LOANS | 2 |
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW | 11 |
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER | 12 |
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER | 17 |
6. CLOSING | 23 |
7. CLOSING DOCUMENTS | 24 |
8. COSTS | 28 |
9. NOTICES | 28 |
10. SEVERABILITY OF PROVISIONS | 28 |
11. FURTHER ASSURANCES | 28 |
12. SURVIVAL | 29 |
13. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION | 29 |
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT | 30 |
15. MISCELLANEOUS | 30 |
16. ENTIRE AGREEMENT | 30 |
Exhibit 1 | Mortgage Loan Schedule |
Exhibit 2 | Mortgage Loan Representations and Warranties |
Schedule 2-A | Exceptions to Representations and Warranties Regarding Individual Mortgage Loans |
Schedule 2-B | List of Cross-Collateralized or Cross-Defaulted Mortgage Loans |
Exhibit 3 | Form of Bill of Sale |
Exhibit 4 | Form of Limited Power of Attorney |
Schedule A | List of Mortgagors that are Third Party Beneficiaries |
-i- |
Index of Defined Terms
15Ga-1 Notice | 21 | Mortgage Loan Schedule | 2 | |
Accountant’s Due Diligence Report | 15 | Mortgage Loans | 1 | |
Affected Loan(s) | 19 | Mortgage Note | 1 | |
Agreement | 1 | Mortgagor | 1 | |
Bank of America Lender Successor | MOU | 28 | ||
Borrower Right | 23 | Officer’s Certificate | 7 | |
Bill of Sale | 2 | Other Mortgage Loans | 1 | |
Certificate Administrator | 1 | Pooling and Servicing Agreement | 1 | |
Certificate Purchase Agreement | 1 | Preliminary PPM | 1 | |
Certificates | 1 | Private Certificates | 1 | |
Closing Date | 2 | Prospectus Supplement | 1 | |
Collateral Information | 11 | Public Certificates | 1 | |
Crossed Mortgage Loans | 19 | Purchaser | 1 | |
Cure Request | 18 | Repurchase Request | 21 | |
Custodian | 1 | Seller | 1 | |
Defective Mortgage Loan | 19 | Seller Reporting Information | 14 | |
Dispute | 21 | Seller’s Information | 14 | |
Final Judicial Determination | 22 | Special Servicer | 1 | |
Final PPM | 1 | Trust | 1 | |
Indemnification Agreement | 14 | Trust Advisor | 1 | |
Initial Purchasers | 1 | Trustee | 1 | |
Master Servicer | 1 | UCC | 5 | |
Material Breach | 18 | Underwriters | 1 | |
Material Document Defect | 17 | Underwriting Agreement | 1 | |
Mortgage File | 3 | |||
-ii- |
Mortgage Loan Purchase Agreement (this “Agreement”), dated September 14, 2015, between UBS Real Estate Securities Inc. (“Seller”) and Banc of America Merrill Lynch Commercial Mortgage Inc. (“Purchaser”).
Seller agrees to sell, and Purchaser agrees to purchase, certain mortgage loans listed on Exhibit 1 hereto (the “Mortgage Loans”), each of which is evidenced by one or more related notes or other evidence of indebtedness (each a “Mortgage Note”) evidencing the indebtedness of the related obligor under the related Mortgage Loan (each a “Mortgagor”). Purchaser will convey the Mortgage Loans to a trust (the “Trust”) created pursuant to a Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), to be dated as of September 1, 2015, between Purchaser, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the “Master Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, LNR Partners, LLC, as special servicer (the “Special Servicer”), and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”). In exchange for the Mortgage Loans and certain other mortgage loans to be purchased by Purchaser (collectively the “Other Mortgage Loans”), the Trust will issue to the Depositor pass-through certificates to be known as Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7 (the “Certificates”). The Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-SB, Class A-3, Class A-4, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D Certificates (the “Public Certificates”) will be sold by Purchaser to Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Drexel Hamilton, LLC, as underwriters (in such capacities, the “Underwriters”), pursuant to an Underwriting Agreement, between Purchaser, Bank of America, National Association and the Underwriters, dated as of the date hereof (the “Underwriting Agreement”), and the Class X-E, Class X-FG, Class X-NR, Class E, Class F, Class G, Class H, Class V and Class R Certificates (the “Private Certificates”) will be sold by Purchaser to Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC, as initial purchasers (in such capacities, the “Initial Purchasers”), pursuant to a Certificate Purchase Agreement, between Purchaser, Bank of America, National Association and the Initial Purchasers, dated as of the date hereof (the “Certificate Purchase Agreement”). The Underwriters will offer the Public Certificates for sale publicly pursuant to a Prospectus dated September 14, 2015, as supplemented by a Prospectus Supplement dated the date hereof (together, the “Prospectus Supplement”), and the Initial Purchasers will offer the Private Certificates for sale in transactions exempt from the registration requirements of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated the date hereof (the “Final PPM”) and a preliminary version thereof dated September 8, 2015 (as supplemented by the preliminary private placement memorandum supplement, dated September 11, 2015, collectively, the “Preliminary PPM”).
In consideration of the mutual agreements contained herein, Seller and Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans identified on the schedule (the “Mortgage Loan Schedule”) annexed hereto as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms hereof. The Cut-off Date with respect to the Mortgage Loans is September 1, 2015; provided, that for purposes of determining amounts allocable to the related Seller, with respect to any Mortgage Loans not having due dates on the first day of each month, the scheduled payments of principal and/or interest due thereon during September 2015 are deemed to have been due and received on September 1, 2015 rather than the actual date of receipt. The Mortgage Loans will have an aggregate principal balance as of the close of business on the Cut-off Date, after giving effect to any payments during or prior to September 2015, whether or not received, of $634,123,331. The sale of the Mortgage Loans shall take place on September 24, 2015 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). The purchase price to be paid by Purchaser for the Mortgage Loans shall equal the amount to be set forth as such purchase price in the Bill of Sale (substantially in the form of Exhibit 3 hereto), to be entered into between the parties to this Agreement in connection with this Agreement and the issuance of the Certificates (the “Bill of Sale”). The purchase price shall be paid to Seller by wire transfer in immediately available funds on the Closing Date.
1.2 On the Closing Date, Purchaser will assign to the Trustee pursuant to the Pooling and Servicing Agreement all of its right, title and interest in and to the Mortgage Loans and its rights under this Agreement (to the extent set forth in Section 14 hereof), and the Trustee shall succeed to such right, title and interest in and to the Mortgage Loans and Purchaser’s rights under this Agreement (to the extent set forth in Section 14 hereof).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the consideration referred to in Section 1 hereof and the satisfaction of the conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set over and otherwise convey to Purchaser, without recourse, except as specifically provided herein all the right, title and interest of Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by Seller and the Master Servicer. The Mortgage Loan Schedule, as it may be amended from time to time on or prior to the Closing Date, shall conform to the requirements of this Agreement and the Pooling and Servicing Agreement. In connection with such transfer and assignment, Seller shall deliver to the Trustee (or the Custodian on its behalf), on behalf of Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth Business Day after the Closing Date, five limited powers of attorney substantially in the form attached hereto as Exhibit 4 in favor of the Custodian (on behalf of the Trustee) and the Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of
-2- |
the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). Seller agrees to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one-hundred eighty (180) days following the delivery of notice of such absence to Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office. In addition, not later than the 30th day following the Closing Date, Seller shall deliver to the Trustee (or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to each Mortgage Loan (each, a “Mortgage File”). (Seller acknowledges that the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date are to be held by the Trustee (or the Custodian on its behalf) in escrow on behalf of Seller at all times prior to the Closing Date. The Mortgage Files shall be released from escrow upon closing of the sale of the Mortgage Loans and payments of the purchase price therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing, or accompanied by, all prior or intervening endorsements, endorsed either in blank or to the order of the Trustee in the following form: “Pay to the order of U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed), or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or prior to the 45th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost after recordation, Seller shall deliver or cause to be delivered to the Trustee (or the
-3- |
Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with evidence of recording thereon, or if any such original modification, consolidation or extension agreement has been delivered to the appropriate recording office for recordation and either has not yet been returned on or prior to the 45th day following the Closing Date with evidence of recordation thereon or has been lost after recordation, a true copy of such modification, consolidation or extension certified by Seller together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (ii) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for the Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan));
2.2.5 Originals of all intervening assignments of Mortgage, if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by Seller, or in the case of an original blanket intervening assignment of Mortgage retained by Seller, a copy thereof certified by Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or, if such Assignment
-4- |
of Leases has not been returned on or prior to the 45th day following the Closing Date from the applicable public recording office, a copy of such Assignment of Leases certified by Seller to be a true and complete copy of the original Assignment of Leases submitted for recording, together with (i) an original of each assignment of such Assignment of Leases with evidence of recording thereon and showing a complete recorded chain of assignment from the named assignee to the holder of record, and if any such assignment of such Assignment of Leases has not been returned from the applicable public recording office, a copy of such assignment certified by Seller to be a true and complete copy of the original assignment submitted for recording, and (ii) an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “U.S. Bank National Association, as Trustee for Bank of America Merrill Lynch Commercial Mortgage Trust 2015-UBS7, Commercial Mortgage Pass-Through Certificates, Series 2015-UBS7” (or, in the case of an A/B Whole Loan or Loan Pair, substantially similar language notating an assignment in favor of the Trustee (in such capacity and on behalf of the holders of any related Serviced B Note or Serviced Companion Loan)), which assignment may be effected in the related Assignment of Mortgage;
2.2.7 The original or a copy of each guaranty, if any, constituting additional security for the repayment of such Mortgage Loan;
2.2.8 The original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy or, if such Title Insurance Policy has not been issued, an original binder or actual title commitment or a copy (which may be electronic) thereof certified by the title company with the original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one-hundred eighty (180) days of the Closing Date or a preliminary title report binding on the title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within one-hundred eighty (180) days of the Closing Date;
2.2.9 (A) Uniform Commercial Code (“UCC”) financing statements (together with all assignments thereof) and (B) UCC-3 financing statements to the Trustee delivered in connection with the Mortgage Loan;
2.2.10 Copies of the related ground lease(s), space lease(s) or air rights lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under any such lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements, co-lender agreements and intercreditor agreements (including, without limitation, any Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement, and a copy (that is, not the original) of the mortgage note evidencing the related Serviced Companion Loan, Non-Serviced Companion Loan or B Note), if any, related to the Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned to the Trustee and delivered to the Custodian on behalf of the Trustee on behalf of the Trust with a copy to be held by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement
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or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit). In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer. The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if any, related to the Mortgage Loan;
2.2.14 Third-party management agreements, if any, with respect to any Mortgaged Property;
2.2.15 Copies of any Environmental Insurance Policy;
2.2.16 Copies of any affidavit and indemnification agreement;
2.2.17 If the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement provided to Seller in connection with the Seller’s origination or acquisition of the Mortgage Loan; (b) a copy of any related estoppel certificate or any comfort letter delivered by the franchisor for the benefit of the holder of the Mortgage Loan in connection with the Seller’s origination or acquisition of the Mortgage Loan; and (c) if the related Mortgage Loan is a Franchise Mortgage Loan, a copy of the notice (to the extent such a notice is required under the terms of the related franchise, management or similar agreement) to the related franchisor stating that the Franchise Mortgage Loan has been transferred to the Trust and requesting a replacement comfort letter in favor of the Trust (or any such new document or acknowledgement as may be contemplated under the existing comfort letter); and
2.2.18 With respect to any Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date. In addition, a copy of any ground lease, space lease or air rights lease shall be delivered to the Master Servicer within thirty (30) days of the Closing Date.
“Officer’s Certificate” shall mean a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, any Senior Vice President, any Vice President, any Assistant Vice President, any Treasurer or any Assistant Treasurer.
Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, (A) the preceding document delivery requirements shall be met by the delivery by the Depositor of copies of the documents specified above (other than the Mortgage Notes (and all intervening endorsements) respectively evidencing such Non-Serviced Mortgage Loan with respect to which the originals shall be required), including a copy of the Non-Serviced Mortgage Loan Mortgage, and (B) the requirement to deliver any of the preceding documents in the name of the Trustee shall be met by the delivery of such documents in the name of the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred to in Sections 2.2.4 and 2.2.6(ii) hereof may be in the form of a single instrument assigning the Mortgage and the Assignment of Leases to the extent permitted by applicable law. To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording or filing of multiple assignments of mortgages, assignments of leases (to the extent separate from the mortgages) and assignments of UCC financing statements, Seller shall execute, in accordance with Section 2.6 hereof, the assignments of mortgages, the assignments of leases (to the extent separate from the mortgages) and the assignments of UCC financing statements relating to the Mortgage Loans naming the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the fact that such assignments of mortgages, assignments of leases (to the extent separate from the assignments of mortgages) and assignments of UCC financing statements shall name the Trustee on behalf of the Certificateholders as the assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall for all purposes be deemed to have been transferred from Seller to Purchaser and from Purchaser to the Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3, 2.2.5 or 2.2.6 hereof (exclusive of Section 2.2.6(ii) hereof), with evidence of recording thereon, solely because of a delay caused by the public recording office where such document or instrument has been delivered for recordation within the forty-five (45) day period following the Closing Date, but Seller delivers a photocopy thereof (certified by the appropriate county recorder’s office to be a true and complete copy of the original thereof submitted for recording), to the Trustee within such forty-five (45) day period, Seller shall then deliver within ninety (90) days after the Closing Date the recorded document (or within such longer period after the Closing Date as the Trustee may consent to, which consent shall not be unreasonably withheld so long as Seller is, as certified in writing to the Trustee no less often than monthly, in good faith attempting to obtain from the appropriate county recorder’s office such original or photocopy).
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2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled to all scheduled payments of principal due on the Mortgage Loans after the Cut-off Date, all other payments of principal collected after the Cut-off Date (other than scheduled payments of principal due on or before the Cut-off Date), and all payments of interest on the Mortgage Loans allocable to the period commencing on the Cut-off Date. All scheduled payments of principal and interest due on or before the Cut-off Date and collected after the Cut-off Date shall belong to, and shall promptly be remitted to, Seller.
2.6 Within forty-five (45) days following the Closing Date, other than with respect to any Non-Serviced Mortgage Loan, Seller shall deliver and Purchaser, the Custodian (on behalf of the Trustee) or the agents of either may submit or cause to be submitted for recordation at the expense of Seller, in the appropriate public office for real property records, each assignment referred to in clauses 2.2.4 and 2.2.6(ii) above. Within ninety (90) days following the Closing Date, other than with respect to any Non-Serviced Mortgage Loan, Seller shall deliver and Purchaser, the Custodian (on behalf of the Trustee) or the agents of either may submit or cause to be submitted for filing, at the expense of Seller, in the appropriate public office for UCC financing statements, the assignment referred to in clause 2.2.9(B). Each such assignment shall reflect that it should be returned by the public recording office to the Custodian (on behalf of the Trustee) following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the Seller shall obtain therefrom a certified copy of the recorded original and forward such copy to the Custodian (on behalf of the Trustee) and the Special Servicer. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, Seller shall prepare a substitute therefor or cure such defect, and Seller shall, at its own expense (except in the case of a document or instrument that is lost by the Custodian), record or file, as the case may be, and deliver such document or instrument in accordance with this Section 2.
2.7 Documents that are in the possession of Seller, its agents or its subcontractors that relate to the Mortgage Loans and that are not required to be delivered to the Trustee (or the Custodian on its behalf) shall be shipped by Seller to or at the direction of the Master Servicer, on behalf of Purchaser, on or prior to the 45th day after the Closing Date, in accordance with Section 2.1(d) of the Pooling and Servicing Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer shall include copies of the mortgage documents listed in the definition of “Mortgage File” relating to the applicable Mortgage Loan and shall also include, to the extent required to be (and actually) delivered to Seller pursuant to the applicable Mortgage Loan documents, copies of the following items: any guaranty/indemnity agreement, any insurance policies or certificates, as applicable, any property inspection reports, any financial statements on the property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary and financial information on the Borrower/sponsor and any guarantors. Notwithstanding the foregoing, Seller shall not be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if any such items are received, they shall be
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returned and any copies thereof destroyed). Delivery of any of the foregoing documents to any sub-servicer shall be deemed a delivery to the Master Servicer and satisfy Seller’s obligations under this subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and the other contents of the related Mortgage File shall be vested in Purchaser and its assigns, and the ownership of all records and documents with respect to the related Mortgage Loan prepared by or that come into the possession of Seller shall immediately vest in Purchaser and its assigns, and shall be delivered promptly by Seller to the Trustee (or the Custodian on its behalf) or the Master Servicer as set forth herein, subject to the requirements of the Pooling and Servicing Agreement. Seller’s and Purchaser’s records shall reflect the transfer of each Mortgage Loan from Seller to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the conveyance of the Mortgage Loans and related property to Purchaser by Seller as provided in this Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and related property. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans and related property by Seller to Purchaser to secure a debt or other obligation of Seller. However, if, notwithstanding the intent of the parties, the Mortgage Loans or any related property are held to be the property of Seller, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans or any related property, then:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be deemed to be a grant by Seller to Purchaser of, and Seller hereby grants to Purchaser, a security interest in all of Seller’s right, title, and interest, whether now owned or existing or hereafter acquired or arising, in, to and under:
A. All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the following property: the Mortgage Loans identified on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, all distributions with respect thereto payable after the Cut-off Date, all substitute or replacement Mortgage Loans and all distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (A) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
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C. All cash and non-cash proceeds of the collateral described in clauses (A) and (B) above.
2.11 The possession by Purchaser or its designee (including, with respect to any Non-Serviced Mortgage Loan, the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan) of the Mortgage Notes, the Mortgages, and such other goods, letters of credit, advices of credit, instruments, money, documents, chattel paper or certificated securities shall be deemed to be possession by the secured party or possession by a purchaser for purposes of perfecting the security interest pursuant to the UCC (including, without limitation, Section 9-313 thereof) as in force in the relevant jurisdiction. Notwithstanding the foregoing, Seller makes no representation or warranty as to the perfection of any such security interest.
2.12 Notifications to Persons holding such property, and acknowledgments, receipts, or confirmations from persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or Persons holding for, Purchaser or its designee, as applicable, for the purpose of perfecting such security interest under applicable law.
2.13 The Seller hereby agrees to provide the Purchaser with prompt notice of any information it receives which indicates that the transfer of each Mortgage Loan from the Seller to the Purchaser may not be treated as a sale. The Seller shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement. In such case, the Seller hereby authorizes the Master Servicer, the Trustee and the Custodian to file all filings necessary to maintain the effectiveness of any original filings necessary under the UCC as in effect in any jurisdiction to perfect such security interest in such property. In connection herewith, the Purchaser shall have all of the rights and remedies of a secured party and creditor under the UCC as in force in the relevant jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject to Section 2.1 hereof, Purchaser shall not be required to purchase any Mortgage Loan as to which any Mortgage Note (endorsed as described in clause 2.2.1 hereof) required to be delivered to the Trustee (or the Custodian on its behalf) or the Master Servicer pursuant to this Section 2 on or before the Closing Date is not so delivered, or is not properly executed or is defective on its face, and Purchaser’s acceptance of the related Mortgage Loan on the Closing Date shall in no way constitute a waiver of such omission or defect or of Purchaser’s or its successors’ and assigns’ rights in respect thereof pursuant to Section 5 hereof.
2.15 The Seller shall not (i) re-acquire the Mortgage Loans or any portion thereof or interest therein (other than as required in order to comply with its obligations under this Agreement) or (ii) acquire any Certificates or interests therein in amounts that may cause the Seller to recognize the Mortgage Loans (or any portion thereof) as an asset of such Seller in its books and records. The Seller has internal accounting and finance controls in place to, in each case (a) monitor any such re-acquisition of the Mortgage Loans or acquisition of the Certificates
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and (b) prevent any such recognition of the Mortgage Loans (or any portion thereof) as an asset of the Seller. In the event the Seller is required to recognize the Mortgage Loans (or any portion thereof) as an asset of the Seller for tax and/or accounting purposes, the Seller shall take immediate corrective action, such that the Mortgage Loans shall not be treated as an asset of the Seller for tax or accounting purposes.
2.16 The Seller (solely in respect of the Franchise Mortgage Loans it is selling to the Depositor) or its designee shall, within thirty (30) days of the Closing Date (or any shorter period if required by the applicable comfort letter) and with a copy to the Master Servicer, notify the related franchisor in writing that such Franchise Mortgage Loan has been transferred to the Trust and request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter).
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a diskette acceptable to Purchaser that contains such information about the Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to Purchaser on or before the Closing Date investor files (collectively the “Collateral Information”) with respect to the assets proposed to be included in the Trust Fund and made available at Purchaser’s headquarters in New York, and (iii) otherwise cooperate fully with Purchaser in its examination of the credit files, underwriting documentation and Mortgage Files for the Mortgage Loans and its due diligence review of the Mortgage Loans. The fact that Purchaser has conducted or has failed to conduct any partial or complete examination of the credit files, underwriting documentation or Mortgage Files for the Mortgage Loans shall not affect the right of Purchaser or the Trust to cause Seller to cure any Material Document Defect or Material Breach (each as defined below), or to repurchase or replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of Purchaser and any designees thereof to examine and audit all books, records and files pertaining to the Mortgage Loans, Seller’s underwriting procedures and Seller’s ability to perform or observe all of the terms, covenants and conditions of this Agreement. Such examinations and audits shall take place upon reasonable prior advance notice at one or more offices of Seller during normal business hours and shall not be conducted in a manner that is disruptive to Seller’s normal business operations. In the course of such examinations and audits, Seller will make available to such representatives of Purchaser and any designees thereof reasonably adequate facilities, as well as the assistance of a sufficient number of knowledgeable and responsible individuals who are familiar with the Mortgage Loans and the terms of this Agreement, and Seller shall cooperate fully with any such examination and audit in all material respects. On or prior to the Closing Date, Seller shall provide Purchaser with all material information regarding Seller’s financial condition and access to knowledgeable financial or accounting officers for the purpose of answering questions with respect to Seller’s financial condition, financial statements as provided to Purchaser or other developments affecting Seller’s ability to consummate the transactions contemplated hereby or otherwise affecting Seller in any material respect. Within forty-five (45) days after the Closing Date, Seller shall provide the Master Servicer with any additional information identified by the Master Servicer as necessary to complete the CREFC® Property File, to the extent that such information is available to Seller.
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3.3 Purchaser may exercise any of its rights hereunder through one or more designees or agents, provided Purchaser has provided Seller with prior notice of the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and, to the extent required pursuant to the terms of the Pooling and Servicing Agreement, the Mortgage Loans that has been delivered into Purchaser’s possession and that is not otherwise publicly available; provided, that such information shall not be kept confidential (and the right to require confidentiality under any confidentiality agreement is hereby waived) to the extent Purchaser deems such information necessary and appropriate or required to be included in the Preliminary PPM, the Final PPM, the Prospectus Supplement, the Free Writing Prospectus (as defined in the Pooling and Servicing Agreement) or any other disclosure document relating to the Certificates or Purchaser is required by law or court order to disclose such information. If Purchaser is required or otherwise deems it necessary and appropriate to disclose in the Free Writing Prospectus, the Preliminary PPM, the Final PPM, the Prospectus Supplement or any other disclosure document relating to the Certificates confidential information regarding Seller as described in the preceding sentence, Purchaser shall provide to Seller a copy of the proposed form of such disclosure prior to making such disclosure and Seller shall promptly, and in any event within two (2) Business Days, notify Purchaser of any inaccuracies therein, in which case Purchaser shall modify such form in a manner that corrects such inaccuracies. If Purchaser is required by law or court order to disclose confidential information regarding Seller as described in the second preceding sentence, Purchaser shall notify Seller and cooperate in Seller’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded such information and, if in the absence of a protective order or such assurance, Purchaser is compelled as a matter of law to disclose such information, Purchaser shall, prior to making such disclosure, advise and consult with Seller and its counsel as to such disclosure and the nature and wording of such disclosure and Purchaser shall use reasonable efforts to obtain confidential treatment therefor. Notwithstanding the foregoing, if reasonably advised by counsel that Purchaser is required by a regulatory agency or court order to make such disclosure immediately, then Purchaser shall be permitted to make such disclosure without prior review by Seller and shall give Seller prompt notice of such disclosure.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for the benefit of Purchaser and its assigns with respect to each Mortgage Loan as of the date hereof (or as of such other date specifically set forth in the particular representation and warranty) each of the representations and warranties set forth on Exhibit 2 hereto (except as otherwise set forth on Schedule 2-A attached to such Exhibit 2) and hereby further represents, warrants and covenants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware. Seller has the requisite power and authority and legal right to own the Mortgage Loans and to transfer and convey the Mortgage Loans to Purchaser and has the requisite power and authority to execute and deliver, engage in the
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transactions contemplated by, and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and delivered by Seller, and assuming the due authorization, execution and delivery hereof by Purchaser, this Agreement constitutes the valid, legal and binding agreement of Seller, enforceable in accordance with its terms, except as such enforcement may be limited by (A) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other laws relating to or affecting the rights of creditors generally, (C) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (D) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification from liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law, for the execution, delivery and performance of or compliance by Seller with this Agreement, or the consummation by Seller of any transaction contemplated hereby, other than (A) such qualifications as may be required under state securities or blue sky laws, (B) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with Seller’s sale of the Mortgage Loans to Purchaser, (C) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained and (D) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by Seller under this Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the execution, delivery or performance of this Agreement by Seller, conflicts or will conflict with, results or will result in a breach of, or constitutes or will constitute a default under (A) any term or provision of Seller’s articles of organization or by-laws, (B) any term or provision of any material agreement, contract, instrument or indenture to which Seller is a party or by which it or any of its assets is bound or results in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument, other than pursuant to this Agreement, or (C) after giving effect to the consents or taking of the actions contemplated in Section 4.1.3 hereof, any law, rule, regulation, order, judgment, writ, injunction or decree of any court or governmental authority having jurisdiction over Seller or its assets, except where in any of the instances contemplated by clauses (B) or (C) above, any conflict, breach or default, or creation or imposition of any lien, charge or encumbrance, will not have a material adverse effect on the consummation of the transactions contemplated hereby by Seller or its ability to perform its obligations and duties hereunder or result in any material adverse change in the business, operations, financial condition, properties or assets of Seller, or in any material impairment of the right or ability of Seller to carry on its business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations of, Seller pending or, to Seller’s knowledge, threatened in writing against Seller before any court, administrative agency or other tribunal, the outcome of which could reasonably be expected to
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materially and adversely affect the transfer of the Mortgage Loans to Purchaser or the execution or delivery by, or enforceability against, Seller of this Agreement or have an effect on the financial condition of Seller that would materially and adversely affect the ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this Agreement will effect a transfer by Seller of all of its right, title and interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller’s knowledge, the information in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement as to which the Seller is providing indemnification pursuant to that certain indemnification agreement, dated the date hereof, between Seller, Purchaser, the Underwriters, and the Initial Purchasers (the “Indemnification Agreement”, and such information the “Seller’s Information”) does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus Supplement) or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Seller has complied with the disclosure requirements of Regulation AB that arise from its role as “originator” and “sponsor” (or, if Seller was not the originator with respect to any Mortgage Loan, the role of the related originator as “originator”) in connection with the issuance of the Public Certificates. The review described under “Transaction Parties—The Sponsors, Mortgage Loan Sellers and Originators—UBS Real Estate Securities Inc.—Review of the UBSRES Mortgage Loans” in the Prospectus Supplement was designed and effected to provide reasonable assurance that the disclosure regarding the Mortgage Loans in the Prospectus Supplement is accurate in all material respects. Notwithstanding anything contained herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no other party.
4.1.8 The Seller hereby agrees to deliver to the Purchaser (or with respect to any Serviced Companion Loan that is deposited into an Other Securitization, the depositor in such Other Securitization) and to the Certificate Administrator or the Trustee, as applicable, any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information set forth next to the Seller’s name on Schedule IX, Schedule X or Schedule XI of the Pooling and Servicing Agreement (in formatting reasonably appropriate for inclusion in such form) (collectively, “Seller Reporting Information”); provided, that the Seller Reporting Information shall not be exclusive of any additional disclosure items specifically related to the Seller or any related Mortgage Loan originator that may be added to Form 10-K, Form 10-D or Form 8-K subsequent to the date hereof that are required to be included in the Exchange Act reports related to the Trust if the Depositor or the Certificate Administrator provides the Seller with notice of such additional requirements. The Seller shall use its best efforts to deliver proposed disclosure language relating to any such event described under Items 1100(e), 1117, 1119 and/or 1124 of Regulation AB and Item 1.03 to Form 8-K to the Certificate Administrator or the Trustee, as applicable, and the Purchaser within one (1) Business Day and in any event no later than two (2) Business Days of the Seller becoming aware of such event and shall provide disclosure relating to any other Seller Reporting Information required to be disclosed by Seller pursuant to this Section 4.1.8 on Form 8-K, Form 10-D or Form 10-K within two (2) Business Days following the Purchaser’s request for such disclosure language. In connection with providing such disclosure language and Seller’s reporting obligations under
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Item 1119 of Regulation AB, upon reasonable request by Seller, Purchaser shall provide Seller with a list of all parties to the Pooling and Servicing Agreement and any Servicing Function Participant with respect to which it has received notice pursuant to the terms of the Pooling and Servicing Agreement. The obligation of the Seller to provide the above-referenced disclosure materials shall be suspended (for so long as neither the Trust nor, with respect to any Serviced Companion Loan related to a Serviced Pari Passu Mortgage Loan sold to the Trust by the Seller, the trust in the related Other Securitization, is subject to the reporting requirements of the Exchange Act), as to any fiscal year, upon the Certificate Administrator or the Trustee, as applicable, filing the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act as to that fiscal year in accordance with Section 13.8 of the Pooling and Servicing Agreement or the reporting requirements with respect to the Trust under the Exchange Act have otherwise been automatically suspended; provided, that for the avoidance of doubt, the suspension of such information reporting does not apply to Seller Reporting Information that is required to be provided for the fiscal year prior to suspension of the Trust’s reporting requirements under the Exchange Act (including Additional Form 10-K Disclosure required to be disclosed on the Form 10-K related to the fiscal year preceding the year in which the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act was filed). The Purchaser shall provide the Seller with notice (which notice may be sent via facsimile or by email) if the Certificate Administrator or the Trustee, as applicable, does file the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act pursuant to Section 13.8 of the Pooling and Servicing Agreement. The Seller hereby acknowledges that the information to be provided by it pursuant to this Section will be used in the preparation of reports meeting the reporting requirements of the Trust under Section 13(a) and/or Section 15(d) of the Exchange Act.
The Seller hereby further agrees that with respect to any Serviced Companion Loan that is deposited into an Other Securitization, it shall, to the extent required under Section 13.2(c) of the Pooling and Servicing Agreement, (i) pay or cause to be paid the out-of-pocket cost (including any reasonable attorney fees) of providing the information, opinion(s) of counsel, certifications and indemnification agreement(s) to the related Other Depositor by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to Section 13.2(c) of the Pooling and Servicing Agreement and (ii) take all actions reasonably requested of it by the related Other Depositor to enable such Other Securitization to comply with Regulation AB.
4.1.9 Except for the agreed-upon procedures report obtained from the accounting firm engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountant’s Due Diligence Report”), the Seller has not obtained (and, through and including the Closing Date, will not obtain) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Exchange Act (“Rule 15Ga-2”)) in connection with the transactions contemplated herein and in the Prospectus Supplement and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Seller has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus Supplement. The
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Underwriters and Initial Purchasers are intended third-party beneficiaries of the provisions set forth in this Section 4.1.9.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that the foregoing representations and warranties and those set forth on Exhibit 2 hereto, subject to the exceptions set forth in Schedule 2-A to Exhibit 2, will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue in full force and effect notwithstanding any restrictive or qualified endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware with full power and authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans, to execute and deliver this Agreement and to enter into and consummate all transactions contemplated by this Agreement. Purchaser has duly and validly authorized the execution, delivery and performance of this Agreement and has duly and validly executed and delivered this Agreement. This Agreement, assuming due authorization, execution and delivery by Seller, constitutes the valid, legal and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law, for the execution, delivery and performance of or compliance by Purchaser with this Agreement, or the consummation by Purchaser of any transaction contemplated hereby that has not been obtained or made by Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution, delivery and performance of this Agreement by Purchaser will violate Purchaser’s certificate of incorporation or by-laws or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in a breach of, any material agreement, contract, instrument or indenture to which Purchaser is a party or that may be applicable to Purchaser or its assets.
4.2.5 Purchaser’s execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of any law, rule, writ, injunction, order or decree of any court, or order or regulation of any federal, state or municipal government agency having jurisdiction over Purchaser or its assets, which violation could materially and adversely affect the condition (financial or otherwise) or the operation of
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Purchaser or its assets or could materially and adversely affect its ability to perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of, Purchaser pending or, to Purchaser’s knowledge, threatened against Purchaser before any court, administrative agency or other tribunal, the outcome of which could reasonably be expected to adversely affect the transfer of the Mortgage Loans, the issuance of the Certificates, the execution, delivery or enforceability of this Agreement or have an effect on the financial condition of Purchaser that would materially and adversely affect the ability of Purchaser to perform its obligations under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or other person, other than Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.
4.2.8 Purchaser (A) prepared one or more reports on Form ABS-15G containing the findings and conclusions of the Accountant’s Due Diligence Report and meeting the requirements of Form ABS-15G and Rule 15Ga-2; (B) provided a copy of the final draft of each Form ABS-15G to the Underwriters and the Initial Purchasers at least six (6) Business Days before the pricing date; and (C) furnished each Form ABS-15G to the Commission on EDGAR at least five (5) Business Days before the date hereof as required by Rule 15Ga-2.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that the foregoing representations and warranties will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the Trustee on behalf of the holders of the Certificates, whether directly or by way of Purchaser’s assignment of its rights hereunder to the Trustee, the representations and warranties set forth on Exhibit 2 hereto (each as of the date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be delivered to the Trustee (or the Custodian on its behalf) pursuant to Section 2 hereof is not delivered as and when required, not properly executed or is defective on its face, or if there is a breach of any of the representations and warranties required to be made by Seller regarding the characteristics of the Mortgage Loans and/or the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case (i) the defect or breach materially and adversely affects the interests of the holders of the Certificates in the related Mortgage Loan or (ii) both (A) the defect or breach materially and adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan (any such defect described in the preceding clause (i) or (ii), a “Material Document Defect” and any such breach described in the
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preceding clause (i) or (ii), a “Material Breach”), the Pooling and Servicing Agreement requires any party thereunder that determines such Material Document Defect or Material Breach exists, to promptly so notify Seller, among others, in writing. Seller may or, following receipt of a request to cure the related Material Document Defect or Material Breach as provided under the Pooling and Servicing Agreement by a party thereto (a “Cure Request”), Seller shall, not later than ninety (90) days from Seller’s receipt of the notice of, and a Cure Request with respect to, such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or cured in all material respects within such ninety (90) day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but Seller is diligently attempting to effect such correction or cure, as certified by Seller in an Officer’s Certificate delivered to the Trustee and the Custodian, then the cure period will be extended for an additional ninety (90) days unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as described in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” in the Pooling and Servicing Agreement and (y) the Material Document Defect was identified in a certification delivered to Seller by the Custodian (on behalf of the Trustee) pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than ninety (90) days prior to the Seller’s receipt of the notice of such Material Document Defect. The parties acknowledge that neither delivery of a certification or schedule of exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor possession of such certification or schedule by Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by Seller, the Master Servicer or the Special Servicer of any Material Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document Defect or Material Breach that exists cannot be corrected or cured in all material respects or Seller otherwise fails to correct or cure within the above cure periods, Seller shall, on or before the termination of such cure periods, either (i) repurchase the affected Mortgage Loan or REO Mortgage Loan or interest in the foregoing from Purchaser or its assignee at the Purchase Price as defined in the Pooling and Servicing Agreement, or (ii) if within the three-month period commencing on the Closing Date (or prior to the second anniversary of the Closing Date if the affected Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), at its option replace, without recourse (other than the representations and warranties made with respect thereto), any Mortgage Loan or successor REO Mortgage Loan to which such defect or breach relates with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or Material Breach would cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code), then notwithstanding the previous sentence or the previous paragraph, the cure, repurchase or substitution must occur within eighty-five (85) days from the date Seller was notified of the defect or breach; provided, that in any event, any such cure, repurchase or substitution must occur no later than eighty-five (85) days from the date of determination of the existence of a Material Document Defect or Material Breach as determined in Section 5.2 hereof. Seller agrees that any substitution shall be completed in accordance with the terms, conditions and requirements of the Pooling and Servicing Agreement, including the payment of a
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substitution shortfall amount equal to the excess, if any, of the applicable Purchase Price for the Mortgage Loan or REO Mortgage Loan to be replaced, over the Stated Principal Balance of the applicable Qualifying Substitute Mortgage Loan (together with any additional amounts specified in the Pooling and Servicing Agreement).
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated above (a “Defective Mortgage Loan”), (y) such Defective Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans (such Defective Mortgage Loan and such other Mortgage Loans, collectively, “Crossed Mortgage Loans”) and (z) the applicable document defect or breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to such other Crossed Mortgage Loans (without regard to this paragraph), then the applicable document defect or breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach, as the case may be, as to each such other Crossed Mortgage Loan for purposes of the above provisions, and Seller shall be obligated to repurchase or replace each such other Crossed Mortgage Loan in accordance with the provisions above, unless, in the case of such breach or document defect, (A) Seller provides a Nondisqualification Opinion to the Trustee at the expense of Seller and (B) both of the following conditions would be satisfied if Seller were to repurchase or replace only those Mortgage Loans as to which a Material Breach or Material Document Defect had occurred without regard to this paragraph (the “Affected Loan(s)”): (i) the Debt Service Coverage Ratio for all those Crossed Mortgage Loans (excluding the Affected Loan(s)) for the four (4) calendar quarters immediately preceding the repurchase or replacement is not less than the lesser of (A) 0.10x below the debt service coverage ratio for all such Crossed Mortgage Loans (including the Affected Loans(s)) set forth in Appendix I to the Prospectus Supplement and (B) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater of (A) the loan-to-value ratio, expressed as a whole number (taken to one decimal place), for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix I to the Prospectus Supplement plus 10% and (B) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (including the Affected Loans(s)), at the time of repurchase or replacement. The determination of the Master Servicer as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error. The Master Servicer will be entitled to cause to be delivered, or direct Seller to (in which case Seller shall) cause to be delivered to the Master Servicer, an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (ii) above has been satisfied, in each case at the expense of Seller if the scope and cost of the Appraisal is approved by Seller (such approval not to be unreasonably withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is required to repurchase or substitute for such Defective Mortgage Loan in the manner set forth in Section 5.4 while the Custodian (on behalf of the Trustee, as assignee of Purchaser) continues to hold any related Crossed Mortgage Loan, Seller and Purchaser hereby agree to forebear from enforcing any remedies against the other’s Primary Collateral but may exercise remedies against the Primary Collateral securing their respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as such exercise does not impair the ability of the other party to exercise its remedies against its
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Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such party, then both parties shall forbear from exercising such remedies until the loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the Pooling and Servicing Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or letters of credit securing the Crossed Mortgage Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding principal balances. All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof. The Mortgagors set forth on Schedule A hereto are intended third-party beneficiaries of the provisions set forth in Section 5.4 and this Section 5.5. The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.
5.6 Any of the following document defects shall be conclusively presumed to materially and adversely affect the interests of Certificateholders in a Mortgage Loan and be a Material Document Defect: (a) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity that appears to be regular on its face (if such absence results from Seller’s failure to deliver such item); (b) the absence from the Mortgage File of the original signed Mortgage (or, with respect to any Non-Serviced Mortgage Loan, a copy thereof) that appears to be regular on its face, unless there is included in the Mortgage File a certified copy of the Mortgage by the local authority with which the Mortgage was recorded (if such absence results from Seller’s failure to deliver such item); (c) the absence from the Mortgage File of the item specified in paragraph 2.2.8 (if such absence results from Seller’s failure to deliver such item); (d) the absence from the Mortgage File of the original or a copy of any letter of credit in effect as of the Closing Date (if such absence results from Seller’s failure to deliver such item); or (e) the absence from the Mortgage File of a copy of the item specified in paragraph 2.2.10 (if such absence results from Seller’s failure to deliver such item) if the related Mortgage Loan is secured only by the related ground lease, space lease or air rights lease.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or cure of such Material Document Defect or Material Breach, (ii) to repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance with this Agreement, then provided that (x) the period of time provided for Seller to correct, repurchase or cure has expired and (y) the Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to the Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate (or permit the liquidation of) the Mortgage Loan pursuant to the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller acknowledges and agrees that any modification of the Mortgage Loan pursuant to a workout shall not constitute a defense to any repurchase claim nor shall such modification and workout change the Purchase Price due from Seller for any repurchase claim. In the event of any such modification and workout, Seller shall be obligated to repurchase the Mortgage Loan as modified and the Purchase Price shall include any Workout Fee paid to the Special Servicer up to the date of repurchase plus the present value (calculated at
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the applicable Calculation Rate) of the Workout Fee that would have been payable to the Special Servicer in respect of such Mortgage Loan if the Mortgage Loan had performed in accordance with its terms to its Maturity Date, provided that no amount shall be paid by Seller in respect of any Workout Fee if a Liquidation Fee already comprises a portion of the Purchase Price or if the related Mortgagor has already paid such fee. Seller is entitled to be notified promptly and in writing by the Special Servicer of any offer that it receives to purchase the applicable Mortgage Loan or related REO Property, each in connection with such liquidation. Any sale of the related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the related REO Property, to a Person other than Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against Seller and (ii) representation or warranty of any kind (either expressed or implied) by Seller to or for the benefit of such Person.
5.8 (a) If Seller (i) receives from any Person (other than the Depositor) any request or demand for repurchase or replacement of a Mortgage Loan because of a breach of a representation or warranty or a document defect (any such request or demand for repurchase or replacement, a “Repurchase Request”); (ii) rejects any Repurchase Request or is in dispute with the Person making any Repurchase Request as to the merits of such Repurchase Request (a “Dispute”); or (iii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request, then Seller shall deliver notice of such Repurchase Request, rejection, Dispute or withdrawal (each, a “15Ga-1 Notice”) to the Depositor within ten (10) Business Days of Seller’s receipt thereof (or in the case of a rejection or Dispute, the occurrence thereof).
(b) Seller shall provide to the Depositor relevant portions of any Form ABS-15G that Seller is required to file with the Commission (only to the extent that such portions relate to the Mortgage Loans) on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Commission. Promptly upon request, the Depositor shall provide or cause to be provided to Seller such information regarding the principal balances of the Mortgage Loans in order for Seller to prepare any such form ABS-15G.
(c) Seller agrees that a Repurchase Request Recipient (as defined in the Pooling and Servicing Agreement) will not, in connection with providing Seller with any 15Ga-1 Notice (as defined in the Pooling and Servicing Agreement), be required to provide any information protected by the attorney-client privilege or attorney work product doctrines. In addition, Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.3(e) of the Pooling and Servicing Agreement is so provided only to assist the Purchaser, Seller and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to Section 2.3(e) of the Pooling and Servicing Agreement by a Repurchase Request Recipient shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice (as defined in the Pooling and Servicing Agreement).
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(d) Seller represents and warrants that any information Seller provides to the Depositor pursuant to this Section 5.8 shall be true, complete and correct as of the date Seller provides such information to the Depositor.
5.9 The fact that a Material Document Defect or Material Breach is not discovered until after completion of foreclosure (but in all instances prior to the sale of the related REO Property) shall not prejudice any claim against Seller for repurchase of the REO Property (or the Trust’s interest therein). If the Master Servicer or Special Servicer, as applicable, notifies Seller of the discovery of the Material Document Defect or Material Breach then Seller shall have ninety (90) days to correct or cure such Material Document Defect or Material Breach or purchase the REO Property (or the Trust’s interest therein) at the Purchase Price. After a final liquidation of the Mortgage Loan or REO Property, if a court of competent jurisdiction issues a final order after the expiration of any applicable appeal period that Seller is or was obligated to repurchase the related Mortgage Loan or REO Property (or the Trust’s interest therein) (a “Final Judicial Determination”) or Seller otherwise accepts liability, then, but in no event later than the termination of the Trust pursuant to Section 11.1 of the Pooling and Servicing Agreement, Seller will be obligated to pay to the Trust the difference between any Liquidation Proceeds received upon such liquidation in accordance with the Pooling and Servicing Agreement (including those arising from any sale to Seller) and the Purchase Price.
5.10 Reserved.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material Document Defect or a Material Breach or repurchase or replace a defective Mortgage Loan constitute the sole remedies of Purchaser or its assignees with respect to a Material Document Defect or Material Breach in respect of an outstanding Mortgage Loan; provided, that this limitation shall not in any way limit Purchaser’s rights or remedies upon breach of any other representation or warranty or covenant by Seller set forth in this Agreement (other than those set forth in Exhibit 2).
5.12 Notwithstanding the foregoing, if there is a breach of the representations and warranties set forth in paragraph 30 or paragraph 32 in Exhibit 2 hereto, and as a result the payments, by a Mortgagor, of reasonable costs and expenses associated with securing the consent or approval of the holder of the Mortgage for a waiver of a “due-on-sale” or “due-on-encumbrance” clause or the defeasance of a Mortgage Loan are insufficient such that the Trust incurs an Additional Trust Expense in an amount equal to such reasonable costs and expenses not paid by such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within ninety (90) days of the receipt of notice of such breach in an amount sufficient to avoid such Additional Trust Expense. The parties hereto acknowledge that such reimbursement shall be the only obligation of Seller with respect to the breach discussed in the previous sentence.
5.13 Notwithstanding the foregoing, Purchaser and Seller hereby acknowledge and agree that Seller has retained the right of the lender under the Mortgage Loan documents with respect to the Mortgage Loans to receive a percentage of the economic benefit associated with the ownership of the successor borrower, and to designate and establish the successor borrower and to purchase or cause the purchase on behalf of the related borrower of the related defeasance collateral, if there is a defeasance of such Mortgage Loan (“UBSRES Lender Successor
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Borrower Right”). Purchaser shall cause the Pooling and Servicing Agreement to provide that (i) if the Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan subject to defeasance, then the Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to Seller or its assignee and (ii) until such time as Seller provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with UBSRES Lender Successor Borrower Right shall be delivered to Seller pursuant to the notice provisions of the Pooling and Servicing Agreement.
5.14 The Pooling and Servicing Agreement shall provide that (a) any party that is required to report the discovery of a Material Document Defect or Material Breach shall give written notice promptly to Seller of any such discovery and (b) the Master Servicer shall give prompt written notice to Seller if any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.15 If Seller repurchases any Mortgage Loan pursuant to this Section 5, Purchaser or its assignee, following receipt by the Trustee of the Purchase Price therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage Loan documents with respect to such Mortgage Loan, and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed and assigned to Seller in the same manner such that Seller shall be vested with legal and beneficial title to such Mortgage Loan, in each case without recourse, including any property acquired in respect of such Mortgage Loan or proceeds of any insurance policies with respect thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices of Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202 at 9:00 a.m., Charlotte, North Carolina time, on the Closing Date. The closing shall be subject to each of the following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser specified in Section 4 hereof (including, without limitation, the representations and warranties set forth on Exhibit 2 hereto) shall be true and correct as of the Closing Date (to the extent of the standard, if any, set forth in each representation and warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms as are agreed upon and reasonably acceptable to Seller or Purchaser, as applicable, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its designee all documents required to be delivered to Purchaser as of the Closing Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser and its affiliates in their sole determination and the parties shall have agreed to the form and contents of Seller’s Information to be disclosed in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement.
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6.1.5 All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with, and Seller and Purchaser shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to Purchaser pursuant to Section 8 hereof.
6.1.7 The Private Certificates shall have received the ratings indicated in the Final PPM, and the Public Certificates shall have received the ratings indicated in the Free Writing Prospectus.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and none of the Initial Purchasers shall have terminated the Certificate Purchase Agreement or suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans pursuant to Section 1 hereof.
6.1.10 Seller shall have timely complied with all requirements of Rule 15Ga-2 and Rule 17g-5 under the Exchange Act to the satisfaction of Purchaser.
6.2 Each party agrees to use its best efforts to perform its respective obligations hereunder in a manner that will enable Purchaser to purchase the Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and dated the Closing Date, and upon which the Purchaser, its successors and assigns, and the Underwriters and the Initial Purchasers may rely, to the effect that: (i) the representations and warranties of Seller in this Agreement are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date; and (ii) Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller’s articles of association and bylaws.
7.4 A certificate of good standing with respect to Seller from the Comptroller of the Currency of the United States dated not earlier than thirty (30) days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the Closing Date, and upon which Purchaser, its successors and assigns, the Underwriters and the Initial Purchasers may rely, to the effect that each individual who, as an officer or representative of Seller, signed this Agreement or any other document or certificate delivered on or before the
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Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in paragraph 7.6.4(C) (but only insofar as it relates to any law, rule or regulation of a federal or state governmental authority) and paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing Date, and addressed to Purchaser, the Underwriters and the Initial Purchasers, substantially to the effect of the following (with such changes and modifications as Purchaser may approve and subject to such counsel’s reasonable qualifications):
7.6.1 Seller is validly existing under the laws of the United States and has full corporate or organizational power and authority to enter into and perform its obligations under this Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by Seller.
7.6.3 No consent, approval, authorization or order of any federal court or governmental agency or body is required for the consummation by Seller of the transactions contemplated by the terms of this Agreement except any approvals as have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by Seller, nor the consummation by Seller of any of the transactions contemplated by the terms of this Agreement (A) conflicts with or results in a breach or violation of, or constitutes a default under, the organizational documents of Seller, (B) to the knowledge of such counsel, constitutes a default under any term or provision of any material agreement, contract, instrument or indenture, to which Seller is a party or by which it or any of its assets is bound or results in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument, other than pursuant to this Agreement, or (C) conflicts with or results in a breach or violation of any law, rule, regulation, order, judgment, writ, injunction or decree of any federal or State of New York court or governmental authority having jurisdiction over Seller or its assets, except where in any of the instances contemplated by clauses (B) or (C) above, any conflict, breach or default, or creation or imposition of any lien, charge or encumbrance, will not have a material adverse effect on the consummation of the transactions contemplated hereby by Seller or materially and adversely affect its ability to perform its obligations and duties hereunder or result in any material adverse change in the business, operations, financial condition, properties or assets of Seller, or in any material impairment of the right or ability of Seller to carry on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions, investigations or proceedings pending to which Seller is a party, or threatened against Seller, (a) asserting the invalidity of this Agreement or (b) which materially and adversely affect the performance by Seller of its obligations under, or the validity or enforceability of, this Agreement.
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7.6.6 This Agreement is a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by (1) laws relating to bankruptcy, insolvency, reorganization, receivership or moratorium, (2) other laws relating to or affecting the rights of creditors generally, (3) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) or (4) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other things specified in such opinion, the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions to matters governed by the federal laws of the United States and the corporate laws of the State of Delaware and the State of New York, as applicable.
7.7 Such other opinions of counsel as any Rating Agency may request in connection with the sale of the Mortgage Loans by Seller to Purchaser or Seller’s execution and delivery of, or performance under, this Agreement, in each case also addressed to the Purchaser, the Underwriters and the Initial Purchasers.
7.8 A negative assurance letter, dated the Closing Date and addressed to the Purchaser, the Underwriters, and the Initial Purchasers, in form reasonably acceptable to Purchaser, the Underwriters, and the Initial Purchasers, as to the disclosure provided by Seller to Purchaser with respect to itself and the Mortgage Loans for inclusion in the Free Writing Prospectus, the Preliminary PPM, the Final PPM and the Prospectus Supplement.
7.9 An opinion of counsel, dated the Closing Date and addressed to Purchaser and the Underwriters, in form reasonably acceptable to Purchaser and the Underwriters, that such disclosure complies as to form with the applicable requirements of Regulation AB with respect to Seller’s role as “Sponsor” and as an “Originator” (or, if Seller was not the originator with respect to any Mortgage Loan, the role of the related originator as an “Originator”) (each as defined in Regulation AB) in connection with the Certificates.
7.10 A letter from a nationally recognized certified public accounting firm in form reasonably acceptable to Purchaser, the Underwriters and the Initial Purchasers, dated the date hereof, addressed to Purchaser, the Underwriters and the Initial Purchasers, to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Free Writing Prospectus, the Preliminary PPM, the Final PPM, and the Prospectus Supplement agrees with the records of Seller.
7.11 Such further certificates, opinions and documents as Purchaser may reasonably request.
7.12 An officer’s certificate of Purchaser, dated the Closing Date, with the resolutions of Purchaser authorizing the transactions described herein attached thereto, together with
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certified copies of the charter, by-laws and certificate of good standing of Purchaser dated not earlier than thirty (30) days prior to the Closing Date.
7.13 Such other certificates of Purchaser’s officers or others and such other documents to evidence fulfillment of the conditions set forth in this Agreement as Seller or its counsel may reasonably request.
7.14 An executed Bill of Sale.
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8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by Seller and Purchaser in a separate Memorandum of Understanding dated September 4, 2015 and entered into between Seller and Bank of America, National Association in connection with this Agreement and the issuance of the Certificates (the “MOU”).
9. NOTICES. All communications provided for or permitted hereunder shall be in writing and shall be deemed to have been duly given if (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid and received by the addressee, (c) sent by express courier delivery service and received by the addressee, or (d) transmitted by facsimile transmission (or any other type of electronic transmission agreed upon by the parties) and confirmed by a writing delivered by any of the means described in (a), (b) or (c), if (i) to Purchaser, addressed to Banc of America Merrill Lynch Commercial Mortgage Inc., One Bryant Park, New York, New York 10036, Attention: Leland F. Bunch, III (with a copy to W. Todd Stillerman, Esq., Assistant General Counsel, Bank of America Corporation, 214 North Tryon Street, 20th Floor, NC1-027-20-05, Charlotte, North Carolina 28255, facsimile number: (404) 736-2127, and with a copy to: Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202, facsimile number: (704) 348-5200), or if (ii) to Seller, addressed to UBS Real Estate Securities Inc., 1285 Avenue of the Americas, New York, New York 10019, Attention: David Schell, Facsimile: (212) 821-2943, with an electronic copy to: UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Henry Chung, Facsimile: (212) 821-2943, with a copy to: UBS AG, 153 West 51st Street, New York, New York 10019, Attention: Chad Eisenberger, Executive Director & Counsel (or to such other address as may hereafter be furnished in writing by Purchaser or Seller, as applicable).
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or that is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law that prohibits or renders void or unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such instruments and take such actions as the other may, from time to time, reasonably request in order to effectuate the purpose and to carry out the terms of this Agreement and the Pooling and Servicing Agreement.
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12. SURVIVAL. Each party hereto agrees that the representations, warranties and agreements made by it herein and in any certificate or other instrument delivered pursuant hereto shall be deemed to be relied upon by the other party, notwithstanding any investigation heretofore or hereafter made by the other party or on its behalf, and that the representations, warranties and agreements made by such other party herein or in any such certificate or other instrument shall survive the delivery of and payment for the Mortgage Loans and shall continue in full force and effect, notwithstanding any restrictive or qualified endorsement on the Mortgage Notes and notwithstanding subsequent termination of this Agreement.
13. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the benefit of and shall be binding upon Seller, Purchaser and their respective successors, legal representatives, and permitted assigns, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (i) the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other than clause 4.1.7 and clause 4.1.9), 5, 9, 10, 11, 12, 13, 15 and 16 hereof may be assigned to the Trustee as may be required to effect the purposes of the Pooling and Servicing Agreement and, upon such assignment, the Trustee shall succeed to the rights and obligations hereunder of Purchaser and (ii) each Underwriter and each Initial Purchaser is a third-party beneficiary of Section 4.1.9. No owner of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be deemed a successor or permitted assign because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. The rights and obligations of Seller under this Agreement shall not be assigned by Seller without the prior written consent of Purchaser, except that any person into which Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which Seller is a party, or any person succeeding to the entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof (other than the MOU (solely with respect to those portions of this Agreement that are not assigned to the Trustee), Bill of Sale, the Indemnification Agreement and the Pooling and Servicing Agreement), and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
[Signature pages follow.]
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed by their respective duly authorized officers on the date first above written.
UBS REAL ESTATE SECURITIES INC. | ||
By: | /s/ Nicholas Galeone | |
Name: Nicholas Galeone | ||
Title: Executive Director | ||
By: | /s/ David Schell | |
Name: David Schell | ||
Title: Executive Director |
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. | ||
By: | /s/ Leland F. Bunch, III | |
Name: Leland F. Bunch, III | ||
Title: Senior Vice President |
BACM 2015-UBS7 – UBSRES Mortgage Loan Purchase Agreement
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
· | Loan Number |
· | Mortgage Loan Seller |
· | Property Name |
· | Cut-off Date Balance |
· | Address |
· | City |
· | State |
· | Note Date |
· | Maturity/ARD Date |
· | Interest Rate |
· | Original Balloon Term |
· | Remaining Term to Maturity |
· | Original Amort. Term |
· | ARD (Yes/No) |
· | Primary Servicing Fee Rate |
· | Pari Passu Primary Servicing Fee Rate |
[See attached]
I-1 |
BACM 2015-UBS7 Mortgage Loan Schedule
UBSRES
Loan Number | Mortgage Loan Seller | Property Name | Cut-off Balance | Address | City | State | Note Date | Maturity/ARD Date | Interest Rate | Original
Balloon Term (Months) |
Remaining
Term to Maturity (Months) |
Original
Amort. Term (Months) |
ARD (Yes/No) | Primary Servicing Fee Rate | Pari Passu Primary Servicing Fee Rate | |||||||||||||||
1 | UBSRES | Charles River Plaza North | 72,884,027 | 185 Cambridge Street | Boston | MA | 7/7/2015 | 8/6/2025 | 4.1902% | 120 | 119 | 315 | Yes | 0.0000% | 0.0025% | |||||||||||||||
3 | UBSRES | Westin Hotel at the Domain | 70,000,000 | 11301 Domain Drive | Austin | TX | 8/7/2015 | 9/1/2025 | 4.1203% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
4 | UBSRES | The Panoramic | 52,500,000 | 1321 Mission Street | San Francisco | CA | 8/28/2015 | 9/6/2025 | 4.5515% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
5 | UBSRES | The Mall of New Hampshire | 50,000,000 | 1500 South Willow Street | Manchester | NH | 6/25/2015 | 7/1/2025 | 4.1080% | 120 | 118 | 0 | No | 0.0000% | 0.0025% | |||||||||||||||
6 | UBSRES | 651 Brannan Street | 45,000,000 | 651 Brannan Street | San Francisco | CA | 8/31/2015 | 9/6/2025 | 3.8000% | 120 | 120 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
7 | UBSRES | 200 Helen Street | 41,500,000 | 200 Helen Street | South Plainfield | NJ | 7/24/2015 | 8/6/2025 | 4.2845% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
8 | UBSRES | Holiday Inn JFK | 34,934,491 | 154-71 Brookville Boulevard | Rosedale | NY | 7/24/2015 | 8/6/2025 | 4.7510% | 120 | 119 | 276 | No | 0.0025% | 0.0000% | |||||||||||||||
9 | UBSRES | Pond’s Edge | 28,400,000 | 8650 Barbara Ann Way | Delmar | MD | 7/30/2015 | 8/6/2025 | 4.6554% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
10 | UBSRES | Preferred Freezer - Lynden, WA | 25,200,000 | 604 Curt Maberry Road | Lynden | WA | 9/4/2015 | 9/6/2025 | 4.3727% | 120 | 120 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
11 | UBSRES | Fountains at Andover | 22,050,000 | 3200 Todds Road | Lexington | KY | 8/19/2015 | 9/6/2025 | 4.6826% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
12 | UBSRES | WPC Department Store Portfolio | 20,100,000 | Various | Various | Various | 6/26/2015 | 7/6/2025 | 4.4065% | 120 | 118 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
12.01 | UBSRES | Brookfield | 4,783,575 | 95 North Moorland Road | Brookfield | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.02 | UBSRES | Mayfair | 4,424,246 | 2400 North Mayfair Road | Wauwatosa | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.03 | UBSRES | Southridge | 4,042,458 | 5300 South 76th Street | Greendale | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.04 | UBSRES | Bay Park | 2,852,179 | 303 Bay Park Square | Ashwaubenon | WI | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.05 | UBSRES | Joliet | 2,155,978 | 3340 Mall Loop Drive | Joliet | IL | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
12.06 | UBSRES | West Acres | 1,841,564 | 3902 13th Avenue South | Fargo | ND | 4.4065% | 120 | 118 | 360 | ||||||||||||||||||||
13 | UBSRES | Antioch Crossings Shopping Center | 17,150,000 | 3303-3421 Deer Valley Road | Antioch | CA | 8/24/2015 | 9/6/2025 | 4.6038% | 120 | 120 | 360 | No | 0.0525% | 0.0000% | |||||||||||||||
14 | UBSRES | DoubleTree McAllen | 16,500,000 | 1800 South 2nd Street | McAllen | TX | 9/1/2015 | 9/6/2025 | 4.2130% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
15 | UBSRES | Sweetwater Square | 15,500,000 | 3001-3009 Highland Avenue | National City | CA | 9/2/2015 | 9/6/2025 | 4.0800% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
17 | UBSRES | Dominion Ridge | 14,780,000 | 22211 IH 10 West | San Antonio | TX | 7/23/2015 | 8/6/2025 | 4.4560% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
18 | UBSRES | Southeast Retail Portfolio | 14,300,000 | Various | Various | Various | 9/1/2015 | 9/1/2025 | 4.5228% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
18.01 | UBSRES | Shops at Market Square | 2,606,771 | 5100 Daniels Parkway | Fort Myers | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.02 | UBSRES | Vero Beach Grand Oaks 2 | 2,606,771 | 6280 20th Street | Vero Beach | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.03 | UBSRES | Exotic Commercial | 2,544,705 | 2501 North Federal Highway | Fort Lauderdale | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.04 | UBSRES | Crossroads Starbucks | 1,924,045 | 15299 Crossroads Parkway | Gulfport | MS | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.05 | UBSRES | Vero Beach Grand Oaks | 1,737,847 | 6310 20th Street | Vero Beach | FL | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.06 | UBSRES | Lafayette Properties | 1,197,873 | 5709 Johnston Street | Lafayette | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.07 | UBSRES | New Iberia LA Properties | 1,104,774 | 1103 East Admiral Doyle Drive | New Iberia | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
18.08 | UBSRES | Slidell Properties | 577,214 | 733 Brownswitch Road | Slidell | LA | 4.5228% | 120 | 120 | 360 | ||||||||||||||||||||
19 | UBSRES | Wichita Falls MF Portfolio | 12,985,448 | Various | Wichita Falls | TX | 8/11/2015 | 8/6/2025 | 4.7765% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
19.01 | UBSRES | Colony Park | 5,681,134 | 4700 Taft Boulevard | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
19.02 | UBSRES | Bentwood-Timberlane | 5,566,218 | 4515 Maplewood Avenue | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
19.03 | UBSRES | Park Place | 1,738,096 | 3611 Maplewood Avenue | Wichita Falls | TX | 4.7765% | 120 | 119 | 360 | ||||||||||||||||||||
21 | UBSRES | CW Investments - Charlottesville | 9,300,000 | 1501 Avon Street Extended | Charlottesville | VA | 8/31/2015 | 9/6/2025 | 4.5075% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
22 | UBSRES | Hyatt Place - Chester | 9,073,924 | 13148 Kingston Avenue | Chester | VA | 7/10/2015 | 7/6/2025 | 5.4070% | 120 | 118 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
23 | UBSRES | Regency Plaza | 9,000,000 | 548-550 Contra Costa Boulevard | Pleasant Hill | CA | 8/27/2015 | 9/6/2025 | 5.1995% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
24 | UBSRES | Sunrise Town Center | 8,500,000 | 3820-3860 Convoy Street | San Diego | CA | 7/31/2015 | 8/6/2025 | 4.3079% | 120 | 119 | 360 | No | 0.0600% | 0.0000% | |||||||||||||||
25 | UBSRES | Winter Haven | 8,074,896 | 50 Lake Charlotte Drive | Winter Haven | FL | 8/3/2015 | 8/6/2025 | 4.2860% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
31 | UBSRES | CW Investments - North Charlottesville | 4,400,000 | 3466 Seminole Trail | Charlottesville | VA | 8/31/2015 | 9/6/2025 | 4.5075% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
32 | UBSRES | Lockport Square | 4,290,687 | 16101 South Farrell Road | Lockport | IL | 7/6/2015 | 7/6/2025 | 4.9283% | 120 | 118 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
33 | UBSRES | CW Investments - Ocean City | 3,900,000 | 12537 Ocean Gateway | Ocean City | MD | 9/1/2015 | 9/6/2025 | 4.4295% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
34 | UBSRES | A Storage Place - Redlands | 3,700,000 | 650 New York Street | Redlands | CA | 7/30/2015 | 8/6/2025 | 4.2824% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
35 | UBSRES | 26-28-30 Commerce Drive | 3,688,463 | 26 - 30 Commerce Drive | Danbury | CT | 6/26/2015 | 7/6/2025 | 4.9448% | 120 | 118 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
36 | UBSRES | Gateway Medical Plaza | 3,306,631 | 4800 & 4820 Park Boulevard | Pinellas Park | FL | 7/31/2015 | 8/6/2025 | 5.1810% | 120 | 119 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
37 | UBSRES | Rite Aid - Carlisle | 3,244,766 | 431 South Hanover Street | Carlisle | PA | 7/21/2015 | 8/6/2025 | 4.7510% | 120 | 119 | 300 | No | 0.0025% | 0.0000% | |||||||||||||||
38 | UBSRES | A Storage Place - Indio II | 2,900,000 | 83050 Avenue 45 | Indio | CA | 7/30/2015 | 8/6/2025 | 4.2824% | 120 | 119 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
39 | UBSRES | CW Investments - Dumfries | 2,500,000 | 17625 Possum Point Road | Dumfries | VA | 9/1/2015 | 9/6/2025 | 4.4280% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
40 | UBSRES | CW Investments - Warrenton | 2,500,000 | 6437 Old Meetze Road | Warrenton | VA | 8/31/2015 | 9/6/2025 | 4.4575% | 120 | 120 | 0 | No | 0.0025% | 0.0000% | |||||||||||||||
41 | UBSRES | Michigan Self Storage Portfolio | 1,960,000 | Various | Various | MI | 8/12/2015 | 9/6/2025 | 4.9204% | 120 | 120 | 360 | No | 0.0025% | 0.0000% | |||||||||||||||
41.01 | UBSRES | Cedar Springs | 1,109,102 | 12505 Northland Drive Northeast | Algoma Township | MI | 4.9204% | 120 | 120 | 360 | ||||||||||||||||||||
41.02 | UBSRES | Sparta | 850,898 | 505 10 Mile Road Northwest | Sparta Township | MI | 4.9204% | 120 | 120 | 360 |
I-2 |
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) | Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. At the time of the sale, transfer and assignment to Purchaser, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to Seller), participation or pledge, and Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement. Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Purchaser constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan. |
(2) | Mortgage Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (ii) that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”). |
Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.
(3) | Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the |
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practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications. |
(4) | Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan. |
(5) | Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases from Seller constitutes a legal, valid and binding assignment from Seller. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or with respect to those Mortgage Loans described in paragraph (34) hereof, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth in Schedule 2-A to this Exhibit 2 (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-off Date, to Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below). Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements is required in order to effect such perfection. |
(6) | Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary |
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title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; and (f) if the related Mortgage Loan constitutes a Crossed Mortgage Loan, the lien of the Mortgage for the related Crossed Mortgage Loan or Crossed Mortgage Loans; provided that none of such items (a) through (f), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid, no claims have been made by Seller thereunder and no claims have been paid thereunder. Neither Seller nor, to Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.
(7) | Junior Liens. It being understood that B Notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Crossed Mortgage Loans, there are, as of origination, and to Seller’s knowledge, as of the Cut-off Date, no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics’ and materialmen’s liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth in Schedule 2-A to this Exhibit 2, Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor. |
(8) | Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of |
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Leases, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.
(9) | UCC Filings. If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents or any other personal property leases applicable to such personal property), to the extent perfection may be effected pursuant to applicable law by recording or filing, as the case may be. Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above. No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection. |
(10) | Condition of Property. Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six (6) months of origination of the Mortgage Loan and within twelve (12) months of the Cut-off Date. |
An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve (12) months prior to the Cut-off Date. To Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.
(11) | Taxes and Assessments. All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or installments thereof, which could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be |
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payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority.
(12) | Condemnation. As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there is no proceeding pending, and, to Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property. |
(13) | Actions Concerning Mortgage Loan. As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f) the current principal use of the Mortgaged Property. |
(14) | Escrow Deposits. All escrow deposits and payments required to be escrowed with lender pursuant to each Mortgage Loan are in the possession, or under the control, of Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with lender under the related Mortgage Loan documents are being conveyed by Seller to Purchaser or its servicer. |
(15) | No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by Seller to merit such holdback). |
(16) | Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating of at least “A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from Moody’s or “A-“ from S&P (collectively the “Insurance Rating Requirements”), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary, or containing such |
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endorsements as are necessary, to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than twelve (12) months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, eighteen (18) months).
If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program.
If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms.
The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for loans originated for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.
An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of fifty (50) years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Moody’s or “A-“ by S&P in an amount not less than 100% of the SEL.
The Mortgage Loan documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Mortgage Loan, the lender (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.
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All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least ten (10) days’ prior notice to the lender of termination or cancellation arising because of nonpayment of a premium and at least thirty (30) days prior notice to the lender of termination or cancellation (or such lesser period, not less than ten (10) days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.
(17) | Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created. |
(18) | No Encroachments. To Seller’s knowledge based solely on surveys obtained in connection with origination and the lender’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy. |
(19) | No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization |
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feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by Seller.
(20) | REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in the U.S. Department of Treasury regulations (the “Treasury Regulations”) Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including buildings and structural components thereof, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Section 1.860G-2(a)(1)(ii) of the Treasury Regulations). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. Any prepayment premium and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Section 1.860G-1(b)(2) of the Treasury Regulations. All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations. |
(21) | Compliance with Certain Laws. The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury. |
(22) | Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust. |
(23) | Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable |
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law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.
(24) | Local Law Compliance. To Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan and as of the Cut-off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) are insured by the Title Policy or a law and ordinance insurance policy or (ii) would not have a material adverse effect on the Mortgage Loan. The terms of the Mortgage Loan documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws. |
(25) | Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to Seller’s knowledge based upon a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect. The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located. |
(26) | Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events: (i) if any voluntary petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagor’s (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan; (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B) security deposits or, alternatively, the failure of any security deposits to be delivered to lender upon foreclosure or action in lieu thereof (except to the |
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extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv) breaches of the environmental covenants in the Mortgage Loan documents; or (v) commission of intentional material physical waste at the Mortgaged Property.
(27) | Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial Defeasance (as defined in paragraph (32) below), of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Mortgage Loan, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (as defined in paragraph (32) below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Section 1.860G-2(b)(2) of the Treasury Regulations and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property after the release is not equal to at least 80% of the principal balance of the Mortgage Loan outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. |
In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan in an amount not less than the amount required by the loan-to-value ratio and other requirements of the REMIC Provisions and, to such extent, condemnation awards may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan.
No Mortgage Loan that is secured by more than one Mortgaged Property or that is a Crossed Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other
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than in compliance with loan-to-value ratio and other requirements of the REMIC Provisions.
(28) | Financial Reporting and Rent Rolls. Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis. |
(29) | Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 and the Terrorism Risk Insurance Program Reauthorization Act of 2015 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Seller’s knowledge, do not, as of the Cut-off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms; provided, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount. |
(30) | Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due on sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage |
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Loan documents (which provide for transfers without the consent of the lender which are customarily acceptable to Seller lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs (27) and (32) herein or the exceptions thereto set forth in Schedule 2-A to this Exhibit 2, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Serviced Companion Loan or Non-Serviced Companion Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests, (iii) any Crossed Mortgage Loan, as set forth on Appendix I to the Prospectus Supplement or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
(31) | Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Both the Mortgage Loan documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Principal Balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date Principal Balance equal to $5 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan |
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documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Crossed Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.
(32) | Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for Defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two (2) years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Section 1.860G-2(a)(8)(ii) of the Treasury Regulations, the revenues from which will, in the case of a full Defeasance, be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date, and if the Mortgage Loan permits partial releases of real property in connection with partial Defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to the lesser of (a) 110% of the allocated loan amount for the real property to be released and (b) the outstanding principal balance of the Mortgage Loan; (iv) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (v) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by Defeasance collateral is required to be assumed (or the Mortgagee may require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor is required to provide an opinion of counsel that the Mortgagee has a perfected security interest in such collateral prior to any other claim or interest; and (vii) the Mortgagor is required to pay all rating agency fees associated with Defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with Defeasance, including, but not limited to, accountant’s fees and opinions of counsel. |
(33) | Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD loans and situations where default interest is imposed. |
(34) | Ground Leases. For purposes of the Mortgage Loan Purchase Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land (or, with respect to air rights leases, the air) and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency or similar leases for purposes of conferring a tax abatement or other benefit. |
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With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that:
(a) | The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage; |
(b) | The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the lender, and no such consent has been granted by the Seller since the origination of the Mortgage Loan except as reflected in any written instruments which are included in the related Mortgage File; |
(c) | The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes); |
(d) | The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Mortgaged Property is subject; |
(e) | The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable (including pursuant to foreclosure) to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor; |
(f) | Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such |
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Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(g) | The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender; |
(h) | A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease; |
(i) | The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by Seller in connection with loans originated for securitization; |
(j) | Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; |
(k) | In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and |
(l) | Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. |
(35) | Servicing. The servicing and collection practices used by Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs. |
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(36) | Origination and Underwriting. The origination practices of Seller (or the related originator if Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided, that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit 2. |
(37) | No Material Default; Payment Record. No Mortgage Loan has been more than thirty (30) days delinquent, without giving effect to any grace or cure period, in making required payments since origination, and as of the date hereof, no Mortgage Loan is more than thirty (30) days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date. To Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by Seller in this Exhibit 2. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents. |
(38) | Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding. |
(39) | Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Crossed Mortgage Loan, no Mortgage Loan has a Mortgagor that is an Affiliate of another Mortgagor. An “Affiliate” for purposes of this paragraph (39) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor. |
(40) | Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within twelve (12) months prior to its origination date (or an update of a |
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previous ESA was prepared), and such ESA (i) did not identify the existence of Recognized Environmental Conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related lender; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated, abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent, was obtained from the applicable governmental regulatory authority (or the Environmental Condition affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action or investigation is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the Environmental Condition was obtained from an insurer rated no less than “A-“ (or the equivalent) by Moody’s, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for the Environmental Condition and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To Seller’s knowledge, except as set forth in the ESA, the Mortgage File or the Prospectus Supplement, there is no Environmental Condition at the related Mortgaged Property.
(41) | Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within six (6) months of the Mortgage Loan origination date, and within twelve (12) months of the Closing Date. The appraisal is signed by an appraiser who is a Member of the Appraisal Institute (“MAI”) and that (i) was engaged directly by the originator of the Mortgage Loan or Seller, or a correspondent or agent of the originator of the Mortgage Loan or Seller, and (ii) to Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. |
(42) | Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to the Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-off Date and |
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contains all information required by the Pooling and Servicing Agreement to be contained therein.
(43) | Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Trust, except as set forth on Schedule 2-B of this Exhibit 2. |
(44) | Advance of Funds by Seller. After origination, no advance of funds has been made by Seller to the related Mortgagor other than in accordance with the Mortgage Loan documents, and, to Seller’s knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Mortgage Loan documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a lender-controlled lockbox if required or contemplated under the related lease or Mortgage Loan documents). Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof. |
(45) | Compliance with Anti-Money Laundering Laws. Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan, the failure to comply with which would have a material adverse effect on the Mortgage Loan. |
For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein.
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Schedule 2-A
EXCEPTIONS TO REPRESENTATIONS AND
WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
UBS REAL ESTATE SECURITIES INC.
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
1 |
Charles River Plaza North |
(1) Whole Loan; Ownership of Mortgage Loans |
The related Mortgage Loan is evidenced by a $73,000,000 A-3-1 Note. The Mortgaged Property is also security for the pari passu A-1, A-2 and A-3-2 Notes, which have an aggregate original principal balance of $138,000,000 and a junior note, which has an original principal balance of $34,000,000. The A-1 and A-2 Notes are currently held by the CSAIL 2015-C3 securitization trust. The A-3-2 Note is expected to be contributed to a future securitization.
The related whole loan will be serviced pursuant to the pooling and servicing agreement for the CSAIL 2015-C3 commercial mortgage securitization.
The subordinate B Note is currently held by Prima Mortgage Investment Trust LLC, a Delaware limited liability company.
|
5 |
The Mall of New Hampshire |
(1) Whole Loan; Ownership of Mortgage Loans |
The Mortgage Loan is evidenced by a $50,000,000 A-2 Note. The Mortgaged Property is also security for the pari passu A-1 Note, which has an original principal balance of $100,000,000. The A-1 Note is currently held by the CSAIL 2015-C3 securitization trust.
The related whole loan will be serviced pursuant to the pooling and servicing agreement for the CSAIL 2015-C3 commercial mortgage securitization.
|
7 |
200 Helen Street |
(1) Whole Loan; Ownership of Mortgage Loans |
The related Mortgage Loan is evidenced by a $41,500,000 senior portion of a whole mortgage loan and is senior to a related $10,000,000 B Note. The subordinate B Note was acquired by Prima Mortgage Investment Trust, LLC, a Delaware limited liability company, immediately after origination of the Mortgage Loan.
|
12 |
WPC Department Store Portfolio |
(1) Whole Loan; Ownership of Mortgage Loans |
The Mortgage Loan is evidenced by a $20,100,000 A-2 Note. The Mortgaged Property is also security for the pari passu A-1 and A-3 Notes, which have an aggregate original principal balance of $37,070,000. The A-3 Note is currently held by the CSAIL 2015-C3 securitization trust. The A-1 Note is expected to be contributed to a future securitization.
|
1 |
Charles River Plaza North |
(5) Lien; Valid Assignment |
The sole tenant, Massachusetts General Hospital, under the lease covering the Mortgaged Property has an option to purchase the Mortgaged Property if (a) as a result of the landlord’s negligence, willful misconduct or failure to perform its obligations under the lease (unless the failure is caused in whole or in part by the action or inaction of the tenant), the life safety, mechanical electrical and/or plumbing systems of the leased premises are affected in a manner which materially and adversely interferes with tenant’s operations in at least 200,000 rentable square feet of the leased premises for a period of 180 consecutive days, (b) in the event of a major casualty affecting the leased premises, the landlord does not commence restoration of the leased premises within one year of such casualty or complete such restoration by an outside date specified by landlord in a restoration schedule submitted by the landlord to tenant, or (c) in the event of a |
Sch. 2-A-1 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
major taking, the landlord (i) exercises its right to terminate the lease or (ii) does not commence restoration of the portion of the leased premises that is not affected by the taking within one year of such taking or fails to complete such restoration by an outside date specified by landlord in a restoration schedule submitted by the landlord to the tenant. If the tenant validly exercises its purchase option, it is entitled to purchase the Mortgaged Property at a price equal to the greater of (a) the fair market value of the Mortgaged Property determined in accordance with the lease documents and (b) the outstanding amount of the Mortgage Loan, including all principal, interest, default interest, and other costs, expenses or amounts incurred in connection with the Mortgage Loan. Pursuant to a subordination, non-disturbance and attornment agreement with the lender, the tenant may not exercise its purchase option while the Mortgage Loan is outstanding unless it (a) satisfies the assumption conditions set forth in the Mortgage Loan documents, defeases the Mortgage Loan in accordance with the terms and conditions of the Mortgage Loan documents or (c) to the extent the borrower is permitted to prepay the Mortgage Loan pursuant to the Mortgage Loan documents, the tenant prepays the Mortgage Loan in accordance with the terms and conditions of the mortgage Loan Documents. The Mortgaged Property is one of two units in a condominium. The owner of the other condominium unit has a right of first offer to purchase the Mortgaged Property if the borrower determines to sell its condominium unit. The owner of the other condominium unit also has a right of first refusal in the event borrower intends to enter into an agreement with a non-affiliated third party for the purchase of its unit. The right of first offer and right of first refusal do not apply in connection with the foreclosure of the mortgage or the acceptance of a deed-in-lieu of foreclosure.
| |||
1 |
Charles River Plaza North |
(6) Permitted Liens; Title Insurance |
The sole tenant, Massachusetts General Hospital, under the lease covering the Mortgaged Property has an option to purchase the Mortgaged Property if (a) as a result of the landlord’s negligence, willful misconduct or failure to perform its obligations under the lease (unless the failure is caused in whole or in part by the action or inaction of the tenant), the life safety, mechanical electrical and/or plumbing systems of the leased premises are affected in a manner which materially and adversely interferes with tenant’s operations in at least 200,000 rentable square feet of the leased premises for a period of 180 consecutive days, (b) in the event of a major casualty affecting the leased premises, the landlord does not commence restoration of the leased premises within one year of such casualty or complete such restoration by an outside date specified by landlord in a restoration schedule submitted by the landlord to tenant, or (c) in the event of a major taking, the landlord (i) exercises its right to terminate the lease or (ii) does not commence restoration of the portion of the leased premises that is not affected by the taking within one year of such taking or fails to complete such restoration by an outside date specified by landlord in a restoration schedule submitted by the landlord to the tenant. If the tenant validly exercises its purchase option, it is entitled to purchase the Mortgaged Property at a price equal to the greater of (a) the fair market value of the Mortgaged Property determined in accordance with the lease documents and (b) the outstanding amount of the Mortgage Loan, including all principal, interest, default interest, and other costs, expenses or amounts incurred in connection with the Mortgage Loan. Pursuant to a subordination, non-disturbance and attornment agreement with the lender, the tenant may not exercise its purchase option while the Mortgage Loan is outstanding unless it (a) satisfies the assumption conditions set forth in the Mortgage Loan documents, defeases the Mortgage Loan in accordance with the terms and conditions of the Mortgage Loan documents or (c) to the extent the borrower is permitted to prepay the Mortgage Loan pursuant to the Mortgage Loan documents, the tenant prepays the Mortgage Loan in accordance with the terms and conditions of the mortgage Loan Documents. The Mortgaged Property is one of two units in a condominium. The |
Sch. 2-A-2 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
owner of the other condominium unit has a right of first offer to purchase the Mortgaged Property if the borrower determines to sell its condominium unit. The owner of the other condominium unit also has a right of first refusal in the event borrower intends to enter into an agreement with a non-affiliated third party for the purchase of its unit. The right of first offer and right of first refusal do not apply in connection with the foreclosure of the mortgage or the acceptance of a deed-in-lieu of foreclosure. | |||
1 |
Charles River Plaza North
|
(7) Junior Liens |
The equity owner of the borrower is the obligator under a mezzanine loan in the original principal amount of $100,000,000, which is initially held by Teachers Insurance and Annuity Association of America.
|
11 | Fountains at Andover | (7) Junior Liens |
RMI – Fountains at Andover LLC, a Delaware limited liability company made a $3,500,000 mezzanine loan to Fountains - Brookfield Mezzanine, L.L.C., and Fountains - WP Mezzanine, L.L.C, the sole members of each of the borrowers to the Mortgage Loan, which mezzanine loan is secured by these entities’ ownership interests in the borrower. The Mortgage Loan documents and an intercreditor agreement between the senior lender and the mezzanine lender contain customary provisions regarding the relationship between the two lenders and the two loans.
|
9 |
Pond’s Edge |
(13) Actions Concerning Mortgage Loan |
The related guarantor was divorced in 2006 and as part of the property division, the guarantor executed a series of promissory notes in favor of his ex-wife, which notes contain confession of judgment clauses. A Confession of Judgment was subsequently filed against the guarantor in the amount of $6,224,892 in the Superior Court of Delaware under Docket No.: N15J-01751 on April 20, 2015, and remains pending.
|
19 |
Wichita Falls MF Portfolio |
(13) Actions Concerning Mortgage Loan |
The related guarantors, Vinod K. Gupta and Chnaresh Gupta, and/or entities controlled by them have four civil litigations, which are currently pending and which are set out below, that may materially and adversely affect the guarantor’s ability to perform under the related guaranty.
(i) Two cases filed in Oklahoma and California relate to a $7,000,000 loan on the Lincoln Plaza Office Building located in Oklahoma City, Oklahoma. The Oklahoma case involves foreclosure proceedings against the Lincoln property and a final order granting foreclosure was entered into by the court on May 5, 2015. As of the closing date of the related mortgage loan, the plaintiff has not yet executed on the judgment. The California case is asserting that the defendant failed to turn over business interruption proceeds and it is currently in non-binding mediation. The court appointed mediator has recommended a settlement amount of $1,470,000 of which approximately $820,000 is being held in escrow with the court. The sponsor is currently in negotiation for a settlement payment.
(ii) One case is a foreclosure action on land parcels acquired by the sponsor in St. Thomas, Virgin Islands in 2010. The case is currently in settlement negotiations and it is reported that the lender has agreed to cooperate with the terms of a short sale of the property. The sponsor has received an offer for the property for $700,000, which is currently under consideration.
(iii) The remaining case relates to the sponsor’s medical practice. According to the complaint, the plaintiff in this case suffered damages in the amount of at least $500,000 and also seeks unspecified penalties, interest, fees, and costs. The plaintiff did not allege a sum certain.
|
Sch. 2-A-3 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
1 |
Charles River Plaza North |
(16) Insurance |
With respect to insurance proceeds relating to a property loss affecting the common areas of the condominium, the condominium documents provide that the insurance proceeds may be held by an insurance trustee reasonably acceptable to the lender.
If insurance proceeds in respect of a property loss exceed the restoration costs, the borrower receives the remaining insurance proceeds after restoration. However, when the Mortgage Loan is held by a REMIC Trust and certain conditions (including a release of a portion of the lien following a casualty or condemnation) are satisfied, all or a portion of the insurance proceeds must be applied to the principal of the Mortgage Loan.
If the Terrorism Risk Insurance Program Reauthorization Act of 2007 (as the same may be amended, restated, supplemented or otherwise modified from time to time) is not in effect, the borrower will only be required to obtain terrorism insurance to the extent obtainable for an annual premium not to exceed 200% the then applicable premium payable by the borrower for its all risk policy and business interruption insurance.
|
19 |
Wichita Falls MF Portfolio |
(16) Insurance |
The borrower has a $100,000 property insurance deductible. A carve out was added to the Mortgage Loan agreement so that the borrower and guarantors would be liable to the lender for any loss or damage suffered by the lender due to the $100,000 property insurance deductible.
|
34
38 |
A Storage Place – Redlands
A Storage Place – Indio II
|
(16) Insurance |
The Mortgage Loan documents provide that the premium for terrorism coverage will be capped at 150% of the annual insurance premium as of the origination date of the Mortgage Loan subject to adjustment as set forth in the Mortgage Loan documents.
|
33
39
40
|
CW Investments - Ocean City
CW Investments – Dumfries
CW Investments - Warrenton
|
(16) Insurance |
The amount of a loss above which the lender has the right to control proceeds is $250,000, instead of 5% of the then outstanding principal amount of the related Mortgage Loan. |
1 |
Charles River Plaza North
|
(19) No Contingent Interest or Equity Participation |
The Mortgage Loan is an ARD loan. The mortgage loan documents provide for the accrual of a portion of interest in excess of a specified rate for each interest accrual period during the period from and after the Anticipated Repayment Date set forth in a schedule to the related loan agreement.
|
19 |
Wichita Falls MF Portfolio |
(24) Local Law Compliance |
The Mortgaged Property is legal non-conforming as to use and structure. Upon the occurrence of a casualty or condemnation resulting in the loss of the ability to restore the Mortgaged Property to (i) its current size, area and dimensions and (ii) its current use as a multifamily apartment complex, the borrower and guarantor are obligated to repay the outstanding debt in full less any insurance proceeds or condemnation awards retained by the lender. Law and ordinance insurance was obtained in the customary amount.
|
38 |
A Storage Place – Indio II |
(24) Local Law Compliance |
The Mortgaged Property is legal non-conforming as to use as a self-storage facility. The applicable zoning code states that where a |
Sch. 2-A-4 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
nonconforming use status applies to a structure and land in combination, removal or damage to an extent of more than 50% of the fair market value of the property of the structure will thereafter compel the discontinuance of the nonconforming use of the land. If, following a casualty or condemnation, (A) the use of the Mortgaged Property as a self-storage facility (as operated immediately prior to such casualty or condemnation) is not (or would not be) in compliance with, or otherwise permitted under, all legal requirements (either as a legal non-conforming use or as a legal conforming use) or (B) the Mortgaged Property ceases to be used as a self-storage facility for 6 months or more such that the use of the Mortgaged Property as a self-storage facility (as operated immediately prior to such 6 months or longer period) is not (or would not be) in compliance with, or otherwise permitted under, all legal requirements (either as a legal non-conforming use or as a legal conforming use), the borrower and the guarantor will be personally liable for the Mortgage Loan; provided, that, for the purposes of clause (A) or (B) above, (1) the borrower’s recourse liability will be determined after the lender applies, if and to the extent permitted under all legal requirements, the net proceeds arising out of the related casualty or condemnation, if any, on account of the Mortgage Loan, and (2) to the extent applicable, if the lender’s failure to comply with its obligation under the Mortgage Loan agreement to make the net proceeds arising out of the related casualty or condemnation, if any, available for restoration (after satisfaction of all conditions precedent thereto) is the proximate cause of the Mortgaged Property being prohibited to be used as a self-storage facility as described in clause (A) or (B), as applicable, then the borrower will not be liable in respect thereof. | |||
7 |
200 Helen Street |
(25) Licenses at Permits |
A Certificate of Occupancy for Storage Trailer has not yet been obtained. |
23
|
Regency Plaza
|
(26) Recourse Obligations |
If the related indemnitor delivers to the related indemnified parties, following the full repayment of the related mortgage obligations, a Phase I environmental assessment with respect to the Mortgaged Property in form and substance, and prepared by an environmental consultant, which such report is acceptable to the lender in all respects, such obligations and liabilities shall only survive for a period of three (3) years following the full repayment of the related mortgage obligations. With respect to (b)(iv), the obligations and liabilities of the Borrower and guarantor with respect to environmental issues do not apply to the introduction and initial release of hazardous substances on the Mortgaged Property from and after the date that the lender or the lender’s nominee acquires title and has assumed possession and control of the Mortgaged Property through power of sale, foreclosure or deed in lieu of foreclosure (the “Transfer Date”). The borrower or guarantor will bear the burden of proof that the introduction and initial release of such hazardous substances (i) occurred subsequent to the Transfer Date, (ii) did not occur as a result of any action or omission of the indemnitor, its agents or affiliates in, on, under or near the Mortgaged Property, and (iii) did not occur as a result of a breach of any environmental laws that occurred prior to the Transfer Date.
|
32
34
38 |
Lockport Square
A Storage Place – Redlands
A Storage Place – Indio II
|
(26) Recourse Obligations |
With respect to (b)(iv), the obligations and liabilities of the Borrower and guarantor with respect to environmental issues do not apply to the introduction and initial release of hazardous substances on the Mortgaged Property from and after the date that the lender or the lender’s nominee acquires title and has assumed possession and control of the Mortgaged Property through power of sale, foreclosure or deed in lieu of foreclosure (the “Transfer Date”). The borrower or guarantor will bear the burden of proof that the introduction and initial release of such hazardous substances (i) occurred subsequent to the Transfer Date, (ii) did not occur as a result of any action or omission of the indemnitor, |
Sch. 2-A-5 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
its agents or affiliates in, on, under or near the Mortgaged Property, and (iii) did not occur as a result of a breach of any environmental laws that occurred prior to the Transfer Date. | |||
1 |
Charles River Plaza North |
(28) Financial Reporting and Rent Rolls |
The annual financial statements required under the related Mortgage Loan documents are limited to an annual balance sheet, profit and loss statement, statement of cash flows, and statement of financial condition and results of operation for the Mortgaged Property.
|
3
8
14
22 |
Westin Hotel at the Domain
Holiday Inn JFK
DoubleTree McAllen
Hyatt Place – Chester
|
(28) Financial Reporting and Rent Rolls |
Hospitality properties generally do not require delivery of rent rolls. |
1 |
Charles River Plaza North |
(29) Acts of Terrorism Exclusion |
If the Terrorism Risk Insurance Program Reauthorization Act of 2007 (as the same may be amended, restated, supplemented or otherwise modified from time to time) is not in effect, the borrower will only be required to obtain terrorism insurance to the extent obtainable for an annual premium not to exceed 200% the then applicable premium payable by the borrower for its all risk policy and business interruption insurance.
|
34
38 |
A Storage Place – Redlands
A Storage Place – Indio II
|
(29) Acts of Terrorism Exclusion |
The related Mortgage Loan documents provide that the premium for terrorism coverage will be capped at 150% of the annual insurance premium as of the origination date of the Mortgage Loan subject to adjustment as set forth in the Mortgage Loan documents.
|
1 |
Charles River Plaza North |
(30) Due on Sale or Encumbrance |
The related Mortgage Loan documents permit the transfer of indirect interests in the borrower in certain instances provided that the borrower is indirectly controlled by certain entities and/or individuals set forth in the loan documents, certain individuals, together with their families retain at least 15% of the interests in the borrower, and the legal and financial structure of the borrower and its single purpose nature and bankruptcy remoteness continue to satisfy the lender’s requirements. There is an existing mezzanine loan in the amount of $100,000,000.00. The loan documents permit a change of control of the borrower as a result of the exercise of remedies under the mezzanine loan in accordance with the related intercreditor agreement. In addition, following a change of control of the borrower as a result of the exercise of remedies under the mezzanine loan in accordance with the related interecreditor agreement, transfer of equity interests that result in a change of control of the borrower are permitted as long as “Qualified Transferees” satisfying certain requirements set forth in the related intercreditor agreement control the borrower following such transfers.
|
7 |
200 Helen Street |
(31) Single-Purpose Entity |
In 2007, the borrower guaranteed a line of credit provided by Israel Discount Bank, et al. (“IDB”) to Nakash Holding LLC and Nakash Brothers Realty. The borrower has been released from the guaranty and has no ongoing liability thereunder.
|
33 |
CW Investments – Ocean City
|
(31) Single-Purpose Entity |
The borrower has previously owned property other than the Mortgaged Property. The borrower conveyed to a third party a shopping center on another site that it had acquired along with the Mortgaged Property in 1996 in 2000 (fifteen years ago). Later, in 2004, the borrower conveyed |
Sch. 2-A-6 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
an undeveloped parcel adjacent to the Mortgaged Property to a third party. The borrower delivered a recycled entity affidavit, which included standard representations. In addition, the recourse carve out guaranty for the Mortgage Loan covers any loss arising from the borrower’s prior ownership of property other than the Mortgaged Property. | |||
39 |
CW Investments – Dumfries
|
(31) Single-Purpose Entity |
The borrower has previously owned property other than the Mortgaged Property. The borrower conveyed a strip of land adjacent to the Mortgaged Property to the Commonwealth of Virginia in connection with a highway widening project in 1997 (eighteen years ago). Later, in 2004, the borrower conveyed to a third party another strip of land adjacent to the Mortgaged Property, which strip it had acquired a few months previously as a result of the local municipality’s action vacating a portion of an adjacent right-of-way. The borrower delivered a recycled entity affidavit, which included standard representations. In addition, the recourse carve out guaranty for the Mortgage Loan covers any loss arising from the borrower’s prior ownership of property other than the Mortgaged Property.
|
1 |
Charles River Plaza North
|
(33) Fixed Interest Rates |
The interest rate for the Mortgage Loan is not fixed throughout the term of the Mortgage Loan. The interest rate applicable to each monthly interest accrual period is set forth in a schedule to the related loan agreement.
|
18 |
Southeast Retail Portfolio |
(34) Ground Leases |
With respect to (b), although the ground lessor has recognized the lender in the Ground Lease and in the ground lessor estoppel, the Ground Lease is silent as to the ground lessor seeking the lender’s consent for the actions set out in 34(b). However, the Mortgage Loan is fully recourse to the borrower and the guarantor if the lender’s consent is not obtained in connection with any amendment, modification, cancellation or termination of the ground lease.
With respect to (j), neither the Ground Lease nor the ground lessor estoppel address the allocation of insurance proceeds and awards to the lender; however, the Mortgage Loan contains a recourse carve-out for losses incurred if the lender is excluded from participation in proceedings or settlement of any casualty proceeds or condemnation awards and any allocation thereof.
With respect to (l), the Ground Lease and the ground lessor estoppel are silent as to the execution of a new lease; however, the Mortgage Loan will be fully recourse to the borrower and guarantor if a replacement lease is not entered into between the ground lessor and the lender.
|
21
31
33
39
40 |
CW Investments – Charlottesville
CW Investments -
CW Investments - Ocean City
CW Investments – Dumfries
CW Investments – Warrenton
|
(39) Organization of Mortgagor |
The borrower in each Mortgage Loan listed in the exception has common ownership with the borrowers in the other Mortgage Loans listed. |
Sch. 2-A-7 |
APPENDIX
I ID# |
Mortgage Loan | Representation | Exception |
34
38 |
A Storage Place – Redlands
A Storage Place – Indio II
|
(39) Organization of Mortgagor |
The borrower in each Mortgage Loan listed in the exception has common ownership with the borrowers in the other Mortgage Loans listed. |
1
5
7
12 |
Charles River Plaza North
The Mall of New Hampshire
200 Helen Street
WPC Department Store Portfolio
|
(43) Cross-Collateralization |
The subject Mortgage Loan is cross-collateralized and cross-defaulted with related pari passu and/or subordinate companion loans. |
Sch. 2-A-8 |
Schedule 2-B
List of Cross-Collateralized or Cross-Defaulted Mortgage Loans
None.
Sch. 2-B-1 |
EXHIBIT 3
FORM OF BILL OF SALE
1. Parties. The parties to this Bill of Sale are the following:
Seller: UBS Real Estate Securities Inc.
Purchaser: Banc of America Merrill Lynch Commercial Mortgage Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without recourse, all right, title and interest, whether now owned or hereafter acquired, in and to the Mortgage Loans identified on Exhibit 1 (the “Mortgage Loan Schedule”) to the Mortgage Loan Purchase Agreement, dated September 14, 2015 (the “Mortgage Loan Purchase Agreement”), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the following property: the Mortgage Loans identified on the Mortgage Loan Schedule including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, all distributions with respect thereto payable after the Cut-off Date, all substitute or replacement Mortgage Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property, and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (a) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in clauses (a) and (b) above.
3. Purchase Price. The par amount equal to $634,123,331 (plus accrued interest and subject to certain adjustments pursuant to that certain Memorandum of Understanding dated September 4, 2015 and entered into between Seller and Bank of America, National Association).
4. Definitions. Terms used but not defined herein shall have the meanings assigned to them in the Mortgage Loan Purchase Agreement.
3-1 |
IN WITNESS WHEREOF, each of the parties hereto has caused this Bill of Sale to be duly executed and delivered on the Closing Date (as defined in the Mortgage Loan Purchase Agreement).
SELLER: | ||
UBS REAL ESTATE SECURITIES INC. | ||
By: | ||
Name: | ||
Title: | ||
By: | ||
Name: | ||
Title: | ||
PURCHASER: |
BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. | ||
By: | ||
Name: | ||
Title: |
3-2 |
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
TO U.S. BANK NATIONAL ASSOCIATION AND LNR PARTNERS, LLC WITH RESPECT TO BANK OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE TRUST 2015-UBS7, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2015-UBS7
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated September 14, 2015 (the “Mortgage Loan Purchase Agreement”), between UBS Real Estate Securities Inc. (“Seller”) and Banc of America Merrill Lynch Commercial Mortgage Inc. (“Depositor”), Seller is selling certain multifamily and commercial mortgage loans (the “Mortgage Loans”) to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of September 1, 2015 (the “Pooling and Servicing Agreement”), between the Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer (the “Master Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, LNR Partners, LLC, as special servicer (the “Special Servicer”), and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”), both the Trustee and the Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;
WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.1 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of
4-1 |
“Mortgage File” in, and in accordance with Section 1.1 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to file or record in the appropriate public filing or recording offices, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the Special Servicer only such powers, responsibilities and authority as are set forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
Seller does also hereby make, constitute and appoint the Special Servicer, acting solely in its capacity as Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to limit the grant to either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trust Fund and the Certificateholders, neither the Custodian nor the Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by either the Custodian or the Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.
Any act or thing lawfully done hereunder by either the Custodian (on behalf of the Trustee) or the Special Servicer shall be binding on Seller and Seller’s successors and assigns.
4-2 |
This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the Special Servicer, as applicable, until the earliest occurrence of any of the following events:
(1) | with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement; |
(2) | with respect to the Special Servicer, the termination of the Special Servicer and its replacement with a successor Special Servicer under the terms of the Pooling and Servicing Agreement; |
(3) | with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian; |
(4) | with respect to the Special Servicer, the appointment of a receiver or conservator with respect to the business of the Special Servicer, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Special Servicer; |
(5) | with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund; |
(6) | with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and |
(7) | with respect to the Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 9.30(b) of the Pooling and Servicing Agreement with respect to the Special Servicer. |
Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.
THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS
4-3 |
OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
[Signature on next page]
4-4 |
IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2015.
UBS REAL ESTATE SECURITIES INC. | ||
By: | ||
Name: | ||
Title: | ||
By: | ||
Name: | ||
Title: |
4-5 |
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _____________ 2015, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of UBS Real Estate Securities Inc., and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said ___________________ acknowledged said instrument to be the free act and deed of said corporation.
Name: | ||
Notary Public in and for said County and State | ||
My Commission Expires: | |
4-6 |
Schedule A
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
None.
Sch. A-1 |